diff --git "a/data/processed/caselaw.json" "b/data/processed/caselaw.json" --- "a/data/processed/caselaw.json" +++ "b/data/processed/caselaw.json" @@ -42371,6 +42371,16152 @@ "history": "", "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/62413/index.do" }, + { + "id": "fpslreb-520990-1", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 1–6", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor, Mark Menzies, is a border services officer at the Canada Border Services Agency (“the Agency”) working at the Blue Water Bridge Port of Entry in Sarnia, Ontario. He began his employment in 1996 as a customs inspector, as the position was then known, and had 18 years of service when he filed this grievance to challenge the imposition of a 20-day disciplinary suspension.\n\nOn March 2, 2015, the grievor failed to report to work for his “midnight shift”. Upon receiving a call from his supervisor, he made immediate arrangements to come to work and was on site, ready to work, an hour after the start of his scheduled shift.\n\nThe grievor had a significant disciplinary record that included 6 prior incidents of failing to report to work, as well as multiple incidents of other kinds of misconduct, for which he had received written reprimands and suspensions of 2, 5, 10, and 15 days. None of the prior disciplinary actions had been grieved.\n\nThe grievor acknowledged that his failure to report to work violated the Agency’s Code of Conduct and was unacceptable conduct warranting discipline. However, he took issue with the 20‑day suspension he received, which he considered excessive.\n\nAccordingly, the only issues for the Board to determine are whether the disciplinary action imposed was excessive and, if so, what lesser disciplinary action should be substituted.\n\nI have determined that the 20‑day suspension is excessive and substitute a 4‑day suspension.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-2", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 7–9", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The Board heard testimony from Sebastian Marschner, currently the regional manager of the Agency’s Trusted Trader programs, who was a superintendent in the commercial operations section at the relevant time, and from Robert Long, currently the chief of commercial operations, who was then the acting chief. The grievor testified on his own behalf.\n\nMr. Marschner was the superintendent on duty who reported the incident. He confirmed at the hearing that the grievor had failed to report for his “midnight shift”, which was scheduled from 23:10 on March 2 to 08:00 on March 3, 2015. When Mr. Marschner called him at 23:30, the grievor said that he thought that he was working an afternoon shift, realized his error, apologized for it, and said that he would be in as soon as he could. Mr. Marschner reported at the time, and testified at the hearing, that the grievor reported for duty ready to work (meaning fully uniformed and armed) at 00:10 hours on March 3, 2015, one hour after the start of his scheduled shift.\n\nWhen Mr. Marschner reported the incident, Mr. Long asked him to verify if there had perhaps been a shift change that might explain the grievor’s failure to report to work. There had been no shift change. Ultimately, he tasked Mr. Marschner with conducting an investigation.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-3", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 10–12", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On March 17, 2015, Mr. Marschner conducted an investigation, the purpose of which was to obtain more information and to give the grievor an opportunity to provide any additional considerations that should be taken into account. When asked if management should consider any mitigating circumstances, the grievor apologized again. He stated that it had been nearly two years since his last failure to report and that he would make every effort not to repeat this conduct. He raised no other explanation or mitigating circumstances.\n\nOn April 9, 2015, Mr. Marschner conducted a pre-disciplinary meeting, the purpose of which was to present his preliminary findings and to receive any additional information that should be considered before any disciplinary decision was made. Mr. Marschner reviewed the facts and conveyed his finding that the grievor’s failure to report to work was a violation of the sections of the Agency’s Code of Conduct dealing with neglect of duty and hours of work. He gave the grievor an opportunity to respond to those findings and to present any further mitigating circumstances. The grievor responded that he had nothing to add.\n\nMr. Marschner testified that typically, he would have led the process through to the end; that is, he would have decided upon a disciplinary action and imposed discipline. However, in this case, it was clear that the discipline would be more than five days’ suspension, which is the longest suspension that an Agency superintendent can impose. Therefore, some time after the investigation, he turned the file over to Mr. Long.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-4", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 13–15", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "However, Mr. Marschner could not recall when, how, or by whom the decision to do that was made. He testified that when considering discipline, management generally consults with labour relations specialists throughout the process. He would have been involved in the decision-making process, relaying what had taken place and the results of the investigation, but he did not recall making that decision or making any recommendations about a specific disciplinary action.\n\nOn May 11, 2015, Mr. Long conducted the disciplinary meeting. The record of the meeting lists the mitigating and aggravating factors considered as follows: … · The following mitigating factors were considered: Ø Length of service — 18 years; your CSD is February of [sic] December of 1996 Ø Demonstrated remorse - you were genuine and sincere in your apology for the failure to report for duty Ø Employee response to management’s investigation of alleged misconduct - you have been fully cooperative in all meetings and exchanges with management with respect to this investigation · The following aggravating factors were considered: Ø This is your eighth incident of discipline. The most recent was in 2014 which was a suspension without pay for a duration of 15 days or 112.5 hours due to misconduct. Ø Your failure to report for duty makes it difficult for the employer to manage its operations efficiently. …\n\nMr. Long explained that twice a year, employees use their seniority to bid on the shifts they want. When all shifts are filled, they are notified by email, and the shifts are posted on a centrally located bulletin board. Changes can then be made to the schedule at the request of either management or an employee, and an updated schedule is posted weekly. Employees know their schedule months in advance.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-5", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 16–17", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Long explained why failing to report for work is a serious matter for the Agency and how it can significantly impact operations. He said that especially on a midnight shift, a failure to report can make things very difficult, as the staff complement is reduced. A failure to report creates a significant amount of work for the superintendent, who should be making shift schedules, responding to stakeholders, and dealing with any other issues that arise. Instead, the superintendent must spend time calling the employee who has failed to report for duty. If the superintendent cannot reach the employee, they are obliged to carry out a wellness check. This entails going to the employee’s residence with another officer, which takes time and further depletes the staff complement on site.\n\nThe superintendent may try to call another employee to come in on overtime. This is a complex procedure and can take hours, especially for a “midnight shift” as it is typically difficult to have anyone come in at that time. Or the superintendent may have to shut down a commercial line or try to borrow an officer from the travellers operation. The absence may affect secondary inspections, which must be done by two officers for safety reasons, thus impacting health and safety in the workplace if two officers are not available.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-6", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 18–20", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "There is no system for logging in — border services officers are treated like law-enforcement officers. They are simply expected to be there. Unexpected absences can put their colleagues in an uncomfortable position as it is up to them to notify a superintendent of any absence. Since they do not want to do that, they will sometimes choose to say nothing and instead close a lane or take some other action. At times, superintendents are not even aware that an officer has failed to report until traffic backs up or other problems occur.\n\nMr. Long said that while some jobs are not time sensitive as to when the work is done, it is not so for border services officers. Arriving an hour late does not necessarily avoid problems. If the lines cannot be covered and trucks are backing up, then the Agency is not meeting its obligations to its stakeholders. That can result in calls and complaints, some of which would be to the Agency’s president or vice president. However, Mr. Long confirmed that he had received no report of any actual impact on operations arising from the incident on March 2, 2015.\n\nMr. Long testified that he decided on the disciplinary action. He said that Mr. Marschner would have consulted with the Agency’s regional labour relations section and that at some point, he would have realized that the disciplinary action would be more than a 5‑day suspension and, therefore, would have to go to Mr. Long. However, like Mr. Marschner, he could not recall when, how, or by whom this was determined.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-7", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 21–23", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Long testified that the purpose of discipline is not to punish but rather to be corrective and that he applied the principle of progressive discipline. He confirmed what he had written on the notice of disciplinary action — that to determine the disciplinary action, he had considered all relevant facts and policies, as well as any aggravating or mitigating circumstances. He elaborated that the policies he considered were the Agency’s discipline policy and guidelines for managers, as well as the Treasury Board’s guidelines for discipline.\n\nHe recalled that the main aggravating factor was the grievor’s substantial disciplinary record, especially the severity of the most recent disciplinary action, which had been a 15‑day suspension. As he understood progressive discipline, this established the starting point for the next disciplinary action which would have to be at least one step higher in severity. Mr. Long acknowledged that progressive discipline had not been applied that way in the past and indicated that he did not know why but assumed that previous management had simply applied it incorrectly.\n\nMr. Long did say that there was some flexibility to skip steps; for example, for very serious unacceptable behaviour, one could impose a 10‑day suspension in the absence of any prior disciplinary record. Therefore, the only other possibility open to him would have been to skip a step and impose a 25- or 30-day suspension, but he saw no need to do that in the circumstances.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-8", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 24–26", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Although he could have chosen a more severe disciplinary action, Mr. Long did not believe that there was any flexibility to go in the other direction — to impose anything less severe than the last disciplinary action imposed. Nor did he feel that he could impose a suspension of the same length as the previous one, that is, another 15- day suspension. Neither were half-steps available; for example, he could not impose a 16‑day suspension. Although 1‑ and 2‑day suspensions were available at the lower rungs of the disciplinary ladder, at the higher levels, the increment was 5 days, and the next step could only be 20 days.\n\nMr. Long said that there were many mitigating factors, such as the grievor’s 18 years of service and the fact that he was remorseful. The one that weighed most heavily for Mr. Long was that the grievor had fully co-operated with management throughout the whole process. When he imposed the 20‑day suspension, he was aware of the significant financial impact and tried to mitigate it to some extent by delaying its start until after an upcoming holiday, so that the grievor would not lose statutory holiday pay.\n\nThe grievor testified on his own behalf. He candidly advised that he had no independent recollection of the events, given the amount of time that had passed, but that he did not dispute any of the documents that recorded these events. He confirmed that he had failed to report to work as described by the deputy head’s witnesses. He did not dispute that that conduct warranted discipline. He took issue only with the severity of the disciplinary action.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-9", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 27–29", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "He testified that he had been under the impression that he was working afternoons rather than “midnights”. Asked how that could have happened, the grievor speculated that he could have looked at the wrong section of the schedule or simply copied it down wrong in his book. The grievor confirmed that when asked for mitigating factors in the investigation meeting, he had responded that it had been almost two years since his last failure to report, that he had apologized and that he had promised to make his best efforts to not repeat the mistake. He confirmed that he was then asked if he had anything to add, and that he had not added anything.\n\nThe grievor testified that he knew that he had made a mistake and that it was a violation of Agency policy and warranted discipline. However, he thought that he might receive a 2‑ or 3‑day suspension. Given the amount of time that had passed since his last failure to report, he did not think that his behaviour was serious enough to warrant a 20-day suspension.\n\nIn the grievor’s experience, management looked back to prior disciplinary action for conduct of the same type to determine disciplinary action. For example, the notice of disciplinary action he received for his 15‑day suspension said that any future behaviour “of this nature” could result in more serious discipline. Based on his experience when disciplined in the past, he assumed that management would look to his last disciplinary action that dealt with a failure to report to work, and progress from there.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-10", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 30–32", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "From the way it had been previously handled, he believed that similar policy violations were grouped together. Failures to report would be treated as a “stream” or a “business line”, while complaints from the public or legislative offences, for example, were considered different streams. Discipline was meted out based on the nature of the unacceptable conduct. When he had been disciplined for five “lates”, they were all grouped, and he had received the combined disciplinary action of a 2‑day suspension.\n\nThe grievor testified that he thought that “the punishment should fit the crime” as that principle is drummed into border services officers. They are directed to facilitate the lawful movement of goods and people across the border and are reminded that a traveller’s previous enforcement action is not relevant when looking at a new infraction of a different type. He felt that that was only right and that it should apply to employee discipline as well.\n\nThe grievor testified about serious personal issues that he had been experiencing at the time and for which he had sought help after these events. He said that his union representative raised this at the first level of the grievance process, as recorded in the notes of that meeting, as follows: “There are also some ongoing, personal issues at home which are confidential. These should also be considered as mitigating factors” [emphasis in original]. The grievor testified that the information was phrased that way because he wanted management to be aware that he was experiencing personal issues, but he was not prepared to divulge their nature at that time.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-11", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 33–35", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor was not involved in the third-level grievance meeting. However, the documents show, and it is not disputed, that his union representative raised the issue that the deputy head should have given the grievor’s personal issues more consideration when determining the disciplinary action.\n\nThe grievor testified that after these events, he received help from friends to deal with some of his personal issues, sought treatment from doctors for medical issues, and several years later, after he was diagnosed with a sleep disorder, he requested an accommodation from the Agency. The accommodation was to work a steady day shift to avoid the difficulty of changing his sleep cycle from days to afternoons to midnights. He noted that this change had helped a great deal and that he has had no subsequent late arrivals or failures to report to work. He sought to introduce medical records from several doctors he had consulted. However, the deputy head objected to their admissibility. I will address that objection later in this decision.\n\nThe grievor described the same operational impacts of a failure to report as had the deputy head’s witnesses, adding that it could also negatively impact fellow officers waiting to be relieved from their shifts. Nevertheless, he also said that in his view, being one hour late was not that serious and that the seriousness of a failure to report could be assessed in two ways. In certain circumstances, the impact on operations can be significant, but a failure to report to work is not necessarily serious when considered for the purpose of discipline. He had never heard about any resulting impact on operations and therefore, did not feel that this incident of failing to report to work was very serious.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-12", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 36–37", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Although the grievor referred to his failure to report for work as being “late”, he acknowledged on cross examination that he did not know he was supposed to be at work and that his absence could have been a good deal longer than one hour had he not received the call from Mr. Marschner.\n\nBefore this incident the grievor had received disciplinary actions nine times for various types of behaviour, as follows: · On June 27 and August 17, 2009, he received written reprimands for two separate violations of the firearms handling procedures. · On October 17, 2010, he received a written reprimand for revealing confidential Agency matters to the public and engaging in public criticism of the Agency. · On February 3, 2012, he received a 2‑day suspension for 2 incidents of smoking while on duty, one of which also involved delaying a traveller, which resulted in a complaint. · On February 28, 2012, he received a 5‑day suspension for two negative interactions with travellers. · On November 15, 2012, he received a written reprimand for failing to attend court as the Crown’s essential witness, resulting in the Crown’s case being dismissed. · On April 15, 2013, he received a 10‑day suspension for a negative interaction with a truck driver and one incident of failing to report to work. · On October 17, 2013, he received a 2‑day suspension for 5 incidents of failing to report to work. All the incidents were similar to the one at issue — he failed to report, was phoned by the Agency, and reported for work shortly after that. The 5 incidents occurred on October 9, 2011, November 9, 2011, September 12, 2012, March 23, 2013, and August 27, 2013. · On September 4, 2014, he received a 15‑day suspension for an extremely serious negative interaction with a driver.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-13", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 38–40", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor did not dispute any facts relating to those prior incidences of discipline. He said that there might be a few factors with which he disagreed but confirmed that he had chosen not to grieve any of them.\n\nThe deputy head argued that the post-discipline medical records that the grievor sought to introduce in evidence should not be admitted because he had not disclosed them in advance contrary to the Board’s pre-hearing disclosure requirements; their introduction changed the nature of the grievance and therefore offended the principle established in Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.); the information in them was untested hearsay; and they were not relevant to the period in question.\n\nThe deputy head did not suggest that the late disclosure was intentional but argued that pre-hearing disclosure requirements allow parties to prepare adequately for a hearing and that the late disclosure hindered its ability to make a fulsome argument. This raised an issue of procedural fairness. The deputy head did not dispute that it was provided with the documents as soon as the grievor received them but maintained that nevertheless, there was an element of surprise, as it had no knowledge that the grievor had even sought them.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-14", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 41–42", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The deputy head also submitted that a grievor cannot argue a new or different grievance at adjudication (see Burchill). The grievor tried to reconfigure the grievance to something that had not gone through the grievance process. The notes of the meeting held at the first level of the grievance process reflect that his union representative mentioned that the grievor was having “personal issues” but that they were confidential. He acknowledged that he had not wanted management to have any further information about his personal issues. The deputy head argued that the grievor could not have it both ways; he could not cite confidentiality and then ask the Board to consider issues of which management had no knowledge. There was no mention of a medical defence during the grievance process and introducing medical records at adjudication would amount to raising new grounds for the grievance.\n\nThe deputy head also submitted that the medical information was untested hearsay. It consisted of the clinical notes of four different medical professionals, none of whom testified. The deputy head asked the Board to draw an adverse inference against the grievor, given his failure to call any of the doctors as witnesses and to simply testify himself about the documents’ contents.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-15", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 43–44", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The deputy head also argued that the records were not relevant as they only began in June 2015, after both the misconduct and the disciplinary action had taken place. The grievor’s testimony confirmed that timing — he said that he first saw doctors only after these events. As cited by the Board in Peterson v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 29, the Supreme Court of Canada stated in Cie minière Québec Cartier v. Quebec (Grievance arbitrator), [1995] 2 SCR 1095 at para. 13, that a decision maker can rely on subsequent-event evidence only if it is relevant to the issues and sheds light on the reasonableness of a decision at the time at which that decision was made. If the 20-day suspension was justified at the time management imposed it, the Board cannot rely on later occurrences to annul that suspension on the sole ground that subsequent events render such an annulment fair and equitable, in the Board’s opinion.\n\nIn this case, management was not aware of any medical issues at the time it made the decision to give the grievor a 20-day suspension, and even if it had been aware of any such issues, no medical information or diagnosis was available as the grievor had not yet seen doctors. Nothing in the grievor’s medical records indicates that any diagnosis relates to the period of the misconduct, and there is no way of knowing if any such diagnosis existed at that time. The deputy head cited Tobin v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 76, for the proposition that management must craft a disciplinary action based on the best evidence available to it at the time.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-16", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 45–48", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The deputy head submitted that nothing was unreasonable about progressing from a 15‑ to a 20‑day suspension. The aggravating factors included the grievor’s disciplinary record (see Riche v. Treasury Board (Department of National Defence), 2013 PSLRB 35, in which a disciplinary history, none of which was grieved, was considered an aggravating factor).\n\nThe grievor had had nine incidents of discipline and more incidents of misconduct (some of the notices of discipline referred to more than one incident). None had been grieved or disputed in any way.\n\nAlthough the incident at hand was only one hour of lateness, the grievor acknowledged that it could have been considerably more had he not received a call from the superintendent as he did not realize that he was supposed to be at work. The evidence was clear as to the operational impact of an employee not showing up for a shift and why it is considered to be serious unacceptable conduct.\n\nMitigating factors were considered — the grievor’s length of service, his remorse, and especially his co-operation with the whole process. The personal and medical issues raised at the hearing as possible mitigating factors were not raised prior to the Board hearing, so management could not have taken them into account. The grievor did not testify to any link between his personal issues and his failure to report to work. He reiterated at the hearing that he simply got the schedule wrong.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-17", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 49–50", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The deputy head submitted that the principle of progressive discipline was properly applied and referred to Brown and Beatty, Canadian Labour Arbitration, 5th edition, at para. 7:72 (Rehabilitative Potential), and in particular to the portion which reads, in part, as follows: … The theory, very simply, is that by progressively increasing the severity of disciplinary sanctions for persistent misconduct, an employee will be encouraged to reform. Such a system enhances the fairness and efficacy of discipline as a corrective tool by ensuring that employees are not punished more harshly than necessary and are not caught by surprise.…\n\nThe deputy head argued that the Treasury Board’s Guidelines for Discipline, the Agency’s Guidance for managers with respect to discipline, and the Agency’s Discipline Policy all speak to the idea of progressive discipline; that is, discipline should be imposed in increasing levels of severity. And Mr. Long testified that the purpose of discipline is not to punish but rather to be corrective and that he applied the principle of progressive discipline.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-18", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 51–52", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The deputy head cited Reid-Moncrieffe v. Deputy Head (Department of Citizenship and Immigration), 2014 PSLRB 25, for the proposition that the principle of progressive discipline means that discipline at increasing levels of severity can be imposed in the context of different kinds of misconduct. In that case, Ms. Reid‑Moncrieffe had received a 25‑day suspension for conflict-of-interest and preferential-treatment issues, then a 30- day suspension for making long-distance calls at very minor cost. Her employment was then terminated for twice failing to report for work. An adjudicator noted that if the modest phone calls had led to the first disciplinary action, things would have been different, but as her most recent disciplinary action had been the 25‑day suspension, it was impossible to conclude that a 30-day suspension was unwarranted. Further, the adjudicator upheld 1 of the 2 absences as justification for terminating Ms. Reid‑Moncrieffe’s employment, and again, he said that although that misconduct alone would not warrant termination, having upheld the 30-day suspension, it was impossible to conclude that termination was unreasonable as the next step.\n\nThe deputy head argued that although the grievor’s last disciplinary action was about a driver complaint and not a failure to report to work, it did not preclude applying progressive discipline. Going from 15 to 20 days suspension was reasonable as the failure to report to work did not occur in isolation. Even if reporting to work one hour late could be considered not serious (with which the deputy head did not agree), the validity of the suspension depended on the grievor’s whole disciplinary record plus any aggravating and mitigating circumstances.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-19", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 53–57", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Between 2009 and 2014 the grievor had gone from a written reprimand to a 15‑day suspension. As well, there had been multiple failures to report to work, and by March 2, 2015, an increased level of discipline was warranted because the prior disciplinary action had not been successful.\n\nThe grievor’s position was that the parties were not as far apart on the issue of the admissibility of his medical records as the deputy head’s submission suggested.\n\nThe grievor acknowledged that technically, the Board’s pre-hearing disclosure policy had not been followed, but argued that he had substantively complied with it by giving the deputy head the documents as soon as possible. As well, the deputy head had alleged no specific prejudice as a result.\n\nAs for Burchill, the fact that the grievor experienced personal issues was raised at the first and third levels of the grievance process. His personal circumstances were a live factor throughout the grievance process, and management should have given it more weight.\n\nThat said, the grievor did not put his medical records forward as a medical defence. He did not argue that it was unfair of management to discipline him because he had a disability. Rather, he merely asked the Board to consider his challenging personal circumstances at the time, as the Board did in Desjardins v. Deputy Head (Shared Services Canada) and Treasury Board (Shared Services Canada), 2020 FPSLREB 43, when it found that the grievor in that case was understandably not focussed on being in perfect compliance with his employer’s letter of instruction, due to challenging personal circumstances.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-20", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 58–60", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor offered his medical records in this case only to corroborate his testimony about his personal circumstances and state of mind at the time, to help the Board evaluate the blameworthiness of the conduct and, to a certain extent, his disciplinary record. In Cie minière Québec Cartier, an adjudicator found that an employer had been justified in imposing a disciplinary action on the facts it had at the time but nevertheless relied on new evidence to overturn that disciplinary action. That is not what is asked of the Board in this case. The grievor asked the Board to consider the medical evidence as a mitigating factor only if it finds that management imposed an excessive disciplinary action and that, therefore a lesser disciplinary action must be preferred.\n\nThe grievor also noted that in Tobin and Peterson, post-discipline medical evidence was admitted. In Peterson, the Board specifically found that the evidence was relevant and therefore could be considered.\n\nMr. Long’s testimony was clear; in his mind discipline always went one way — one could never impose less than the last disciplinary action previously imposed. He saw the grievor’s prior 15‑day suspension as controlling. The 20-day suspension was the only disciplinary action he considered imposing because in his view, it was the next step. It is impossible to reconcile this with Mr. Long’s written statements and testimony that he considered all the aggravating and mitigating factors.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-21", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 61–63", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "What does it mean to consider the aggravating and mitigating factors in this context? Certainly, Mr. Long considered the grievor’s length of service and remorse, and he especially appreciated the grievor’s co-operation with the process. However, none of that influenced his decision. Mr. Long effectively fettered his discretion based on his understanding of the Treasury Board’s and the Agency’s policies and guidelines; however, the notion of progressive discipline upon which he based his decision is not found in those documents. Rather, the starting point when assessing discipline is always the behaviour itself, and then the aggravating and mitigating factors are considered.\n\nThe grievor could reasonably expect that lateness in reporting to work would be considered relatively less serious than the prior misconduct involving direct interaction with a driver that had resulted in a 15‑day suspension. Management’s discretion was fettered, and as a result it discounted the mitigating factors and overweighted one aggravating factor (the previous 15‑day suspension).\n\nThe notice of disciplinary action for the grievor’s previous lateness in reporting to work states that any future behaviour “of this nature” could result in increasing discipline, up to and including termination. Accordingly, even in its communications with the grievor, management acknowledged silos of conduct that while not watertight, indicate that the starting point is the nature of the conduct, with the severity of disciplinary action to be adjusted up or down from there.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-22", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 64–66", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As for mitigating factors, the grievor was a long-service employee and was generally recognized as a good border services officer. He has demonstrated significant improvement with respect to attending work as scheduled since being disciplined in October 2013 for five failures to report. This speaks to his rehabilitative potential. He was remorseful and fully co-operative with the process right up to and including the hearing before the Board.\n\nThe March 2, 2015, incident was not premeditated, and although being late with no good reason is serious in the abstract, this incident was not serious in the fact — nothing bad happened as a result, and short-staffing was acknowledged as a day-to-day issue. As well, the grievor’s personal life was in serious disarray at the time, and while it does not excuse the incident, it can and should be considered.\n\nThe grievor’s disciplinary record constitutes an aggravating factor to be considered, but it is not a controlling factor. All the serious disciplinary actions related to interactions with drivers. The 10‑day suspension had been followed by a 2‑day suspension for 5 incidents of failing to report to work. The disciplinary action for the March 2, 2015 incident should have progressed primarily from that 2‑day suspension. And the length of that suspension would suggest that the appropriate disciplinary action for the current incident should be a 1‑ or 2‑day suspension or perhaps a written reprimand considering the mitigating factors.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-23", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 67–69", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The decision in Canadian Food and Allied Workers Union, Local P-162 v. Wm. Scott & Company Ltd. (1976), [1977] 1 Canadian LRBR 1 (BC LRB) (“Wm. Scott & Company Ltd.”), which dealt with a disciplinary termination of employment, and the many decisions that followed and applied it to discipline, have established that the Board should pose three distinct questions when analyzing a disciplinary grievance: 1. Did the employee’s conduct warrant a disciplinary action? 2. If so, was the disciplinary action imposed excessive? 3. If it was, what alternative measures should be substituted?\n\nAt page 4, Wm. Scott & Company Ltd. provides a list (not intended to be comprehensive, but nevertheless useful) of factors to consider when addressing the first two questions. It states that one must consider the seriousness of the behaviour, whether it was premeditated or spontaneous, whether the employee had a long-standing and good record of service, whether progressive discipline was attempted, and whether the disciplinary action was consistent with the employer’s established policies or whether the employee was singled out for harsh treatment.\n\nThe deputy head bears the burden of proof in this matter; however, the grievor acknowledged that his failure to report to work was misconduct that warranted discipline. Therefore, the deputy head had to establish only that the disciplinary action it imposed for the misconduct was not excessive. The Board’s task is to determine whether the disciplinary action was excessive and, if so, what alternative measures should be substituted.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-24", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 70–71", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor testified to personal and medical issues for which he sought assistance after he received the 20-day suspension for the March 2, 2015, incident. He sought to introduce his medical records. The deputy head objected to their admissibility on several grounds, as outlined earlier. I heard the medical evidence, subject to it being admitted formally into the evidence before me and reserved my ruling as to its admissibility.\n\nThe deputy head argued that the late disclosure of the grievor’s medical records breached the Board’s pre-hearing disclosure requirements and was detrimental to the deputy head’s ability to prepare its case, thus raising an issue of procedural fairness. It asked the Board to use its discretion to refuse to admit the evidence on that basis. I note however that the deputy head alleged no specific prejudice that it suffered as a result, and that any element of surprise could have been addressed by the deputy head requesting a short or long adjournment. In the interest of ensuring that the grievor is afforded the opportunity to put all potentially relevant information before the Board, I would not rule the evidence inadmissible for a mere technical breach of the disclosure requirements.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-25", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 72–73", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I do not agree with the deputy head that the grievor breached the Burchill principle and tried to change the nature of the grievance after its referral to adjudication. This is a disciplinary grievance, and the onus is on the deputy head to justify the appropriateness of the disciplinary action. As well, the deputy head was made aware of the existence of potentially relevant personal issues at the first and third levels of the grievance process. Although the grievor did not divulge any details at that time, management was alerted, and the deputy head cannot have been taken by surprise when these issues were raised again at adjudication.\n\nThe deputy head submitted that the grievor’s medical records are hearsay evidence and that they are incomplete, lack context, and are untested without a doctor’s testimony to speak to them. The grievor argued that he did not seek to introduce them to establish a medical defence to his misconduct, but only to corroborate his testimony, and help the Board consider his personal circumstances as a mitigating factor, should it determine that a lesser disciplinary action would be appropriate. I agree that the grievor’s medical records are hearsay. As hearsay evidence is admissible in an administrative hearing, I do not rule them inadmissible on that basis, although I do note that they would not be of significant use to the Board without some explanatory and contextual testimony.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-26", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 74–76", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "However, I agree with the deputy head that the records are not relevant as they do not relate to the time period surrounding the incident of March 2, 2015. Although the grievor’s testimony suggested a link between what he experienced at that time and what the medical professionals recorded when he belatedly sought treatment, it is a tenuous link at best. I find that the grievor’s medical records are not sufficiently relevant to be admitted as evidence and therefore allow the deputy head’s objection on that basis. Accordingly, the grievor’s medical records do not form part of the Board’s record of these proceedings. I further note that even were they to be admitted, the weight that could be accorded them would be minimal without a doctor’s testimony linking the information contained in them to the period in question.\n\nThe Executive Director of the Board’s Secretariat will ensure that no copies of the grievor’s medical records (provisionally identified as Exhibits 3 and 4 during the hearing held on June 14 to 16, 2022) remain in the Board’s records of these proceedings.\n\nThe grievor had a significant disciplinary record when the March 2, 2015, incident of failing to report to work occurred. He had been progressively disciplined and had received several written reprimands as well as 2‑, 5‑, 10‑, and 15‑day suspensions. It was clear on the evidence that the last suspension of 15 days, was the reason he received a 20‑day suspension for misconduct that while serious, was certainly not serious enough on its own to warrant such a severe penalty.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-27", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 77–79", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Long was forthright in his testimony that he imposed a 20‑day suspension because the grievor had already had a 15‑day suspension, although it was not for failing to report to work. Mr. Long acknowledged that discipline had not been meted out that way in the past. However, he testified that his understanding of the principle of progressive discipline as outlined in the applicable policies and guidelines mandated such an approach. He felt that the prior 15‑day suspension was the controlling factor as to the severity of the disciplinary action to impose.\n\nMr. Long did say that there was flexibility to skip steps; for example, for very serious unacceptable behaviour, one could impose a 10‑day suspension in the absence of any prior disciplinary record. Therefore, as he saw it, the only other possibility open to him would have been to skip a step and impose a 25- or 30-day suspension, but he saw no need to do that in the circumstances.\n\nAlthough he could have chosen a more severe disciplinary action, Mr. Long did not believe that there was any flexibility to go in the other direction — to impose anything less severe than the last disciplinary action imposed. Nor did he feel that he could impose the same length of suspension as the previous one – 15 days. Half-steps were also not available. Mr. Long did not believe he could impose a 16‑day suspension which would be more severe than the previous 15 days. Although 1‑ and 2‑day suspensions were available at the lower rungs of the disciplinary ladder, at the higher levels, the increment between steps was 5 days. The next step could only be 20 days.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-28", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 80–81", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Long’s interpretation of progressive discipline is known as a lock-step approach. A disciplinary action is determined by simply going to the next step of the disciplinary ladder, regardless of the nature or seriousness of the behaviour. This kind of approach to discipline has long been rejected, even when it is mandated by an employer’s policy. But no such approach is mandated in this case. Although Mr. Long was clearly under that misapprehension, the applicable policies and guidelines do not mandate, or even imply a lock-step approach.\n\nFor example, the Treasury Board’s Guidelines for Discipline state this: … 4. Determining appropriate disciplinary action Each incident of alleged misconduct is considered on the basis of individual merit. Based on the circumstances, in management’s opinion, what corrective measures are necessary to correct the undesirable behaviour? The application of disciplinary measures is not to be punitive.… Mitigating circumstances, such as the employee’s length of service, past record, the seriousness of the offence, and the unique circumstances of each situation, may require variations in management’s response to seemingly similar offences. Whatever the response, disciplinary actions depend on the nature of the offence, the attendant circumstances, and any mitigating factors…. 5. Flexibility and application of discipline It is recommended to avoid the rigid equation of offences and disciplinary measures. Disciplinary action of a progressively more serious nature may be warranted when there are repeated incidents of misconduct. … [Emphasis added]", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-29", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 82–84", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Similarly, the Agency’s Guidance for managers with respect to discipline states this: … Flexibility and Application of Discipline Rigid equation of offences and disciplinary measures should be avoided. Disciplinary action of a progressively more serious nature is warranted for repeated incidents of misconduct or for a single act of serious misconduct. Determining Appropriate Disciplinary Measure Each incident of alleged misconduct must be considered on a case-by-case basis. Based on the circumstances, in the manager’s opinion, what corrective measures would be necessary to correct the unacceptable behaviour? The application of disciplinary measures should not be punitive in nature but rather corrective…. Mitigating circumstances, and the unique circumstances of each situation, may require variations in the manager’s response to seemingly similar offences.… … [Emphasis added]\n\nThe Agency’s Code of Conduct, Chapter 4, entitled, “Disciplinary Measures and Resolutions of Issues pertaining to the Code of Conduct”, states this: “A decision regarding disciplinary measures will be determined on a case-by-case basis taking into consideration the nature of the breach and the seriousness of the misconduct” [emphasis added].\n\nThese policies and guidelines clearly convey that they are not based on, and do not mandate, a lock-step approach. To the contrary, they stress that determining an appropriate disciplinary action must be done on a case-by-case basis and must be based on the nature of the offence and the specific circumstances of each situation. Nor do they suggest that suspensions must occur in pre-determined steps of 1, 2, 5, 10, 15, 20, 25, and 30 days, regardless of the nature of the behaviour.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-30", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 85–86", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The deputy head pointed out that the applicable policies and guidelines refer to disciplinary actions “in order of increasing severity”. It is true that the Treasury Board’s Guidelines for Discipline document prefaces its definition section as follows: “In order of increasing severity, disciplinary measures are as follows …”. It then lists and defines the different kinds of disciplinary actions that may be imposed, in the following order: oral reprimand, written reprimand, suspension, financial penalty, demotion, and termination. However, this simply explains that the order in which they are listed indicates their relative severity, as understood by the employer. A written reprimand comes after an oral reprimand on the list because it is considered to be a more severe disciplinary action. The Agency’s Discipline Policy reproduces the same list of disciplinary actions in its definition section to indicate by their placement on the list how the Agency views their relative severity.\n\nNothing in these policies and guidelines restricts management’s options for determining the length of a suspension by suggesting that it must always be longer than the last one or that it must increase by specific increments. The policies and guidelines say nothing that suggests a lock-step approach, but even if they did, as the policies of some employers do, it would clearly be an incorrect application of the principle of progressive discipline. The proportionality of a disciplinary action must always be assessed in light of the nature and the specific circumstances surrounding the behaviour that needs to change.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-31", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "para 87", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The decision in United Steel Workers of America, Local 5795 v. Iron Ore Company of Canada (2015), 262 L.A.C. (4th) 400 (NL) (“Iron Ore”), dealt with the impact of an employer’s lock-step discipline policy. Although the policies and guidelines applicable at the Agency do not have any lock-step requirement, Mr. Long, was under the impression that they did. Accordingly, the analysis in Iron Ore is relevant to this matter. In Iron Ore an arbitrator canvassed several prior decisions and analyzed the case before him as follows: … 122 Arbitrator Oakley in Iron Ore Co. of Canada and USW, Local 5795 (Winters), Re, (Lorne Winters) notes that the Progressive Discipline Policy of the Employer does not require the imposition of the penalty at the next step in the progressive discipline system. He also noted that an Arbitrator is not bound by the Progressive Discipline Policy when reviewing the penalty. In that case he refused to uphold the discharge of the Grievor, even though the Grievor had proceeded through step 4. 123 Brown and Beatty note at p.7-167 of their text that typically Arbitrators look at employment histories in which the employee persists in the same kind of misconduct more seriously than those that are marked by a series of different offences. In an extreme case, the earlier misconduct may be so minor and/or different from the final culminating incident that it may not count against the employee at all. 124 In Calgary (City) v. C.U.P.E., Local 37 (2010), 196 L.A.C. (4th) 225 (Alta. Arb.) (Tettensor) it was stated that notwithstanding the employer’s lock-step progressive discipline system (ie. next step on system applied even if unrelated misconduct), arbitrators should consider the specific circumstances to determine whether the discipline is reasonable.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-32", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "para 87", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "125 The Arbitrator in that case wrote in referring to the decision of Arbitrator Adams in the Livingston Industries Ltd. case, “he noted such models provide certainty for the parties to allow them to regulate their affairs without the need for excessive arbitral intervention”, but he also recognized that Adams also noted “that employers are constrained by the legal requirement of just and proper cause”. 126 That is most certainly the case with Arbitrators and in my view one must never lose sight of the fact that the system is a construct of management, not of the parties and that we are not dealing with something enshrined in the Collective Agreement. 127 In Calgary (City) v. C.U.P.E., Local 37 there is a further reference to Livingston Industries Ltd. and the Arbitrator notes that it states “the system can’t be determinative of the outcome. Arbitrators have an obligation to consider the specific circumstances of the misconduct in weighing whether the discipline falls within the reasonable range of employer responses.” 128 The Arbitrator in Calgary (City) v. C.U.P.E., Local 37 noted in the case before him that the City reserved the right to jump a step when this is justified by the nature of the misconduct. In his view the lock step approach should also be tempered when this is warranted by the circumstances. 129 I agree. … 132 Though the Policy states that violations of different rules shall be considered the same as repeated violations of the same rule for purposes of progressive discipline in that it demonstrates a pattern of misconduct, I conclude that blind and inflexible adherence to that is not appropriate when talking about correcting behavior. 133 The problem that needed addressing in this case was absenteeism.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-33", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "para 87", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Not calling in on time was clearly related to that. A seatbelt infraction was not. While one should not discount the seatbelt infraction entirely, in my view it cannot be and should not be accorded the same degree of weight as if that one day suspension had been for absenteeism or for not providing advance notice that he was going to be absent. 134 The level of discipline imposed in March should, in my view, have reflected that he was being disciplined only for not providing one hours [sic] advance notification that he was going to miss a shift and not as well for unjustified absenteeism. It should also, in my view, have reflected that his previous suspension was not for absenteeism or failing to provide timely advance notification but for something entirely different. … 138 In Etobicoke General Hospital v. O.N.A., 1977 CarswellOnt 702 (Ont. Arb.), the majority of a Board chaired by Arbitration [sic] Brandt distinguished between the significance of a record for an offence entirely unrelated to the offence committed on the occasion of the culminating incident and one which was related and because it was unrelated treated the culminating incident as standing alone. 139 The fact that the impact is just as great on the Employer if one does not provide advance notification as if one fails in that respect and is as well unjustifiably absent, and the fact that the seat belt violation should not be entirely discounted, are in my view adequately addressed by a suspension of three (3) days, the pinnacle of step 3 discipline. This was discipline greater than the one day suspension that had previously been imposed. …", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-34", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "para 88", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As cited in Iron Ore, an arbitrator in Canadian Union of Public Employees, Local 37 v. Calgary (City), 2010 CanLII 96455 (AB GAA), also addressed this issue in a case in which an employer had a lock-step disciplinary policy in place, as follows: … 110 … While I accept that arbitrators should give weight to an employer’s system of progressive discipline for the reasons outlined in the Livingston case, I also accept, as Arbitrator Adams states, that the system can’t be determinative of the outcome. We have an obligation to consider the specific circumstances of the misconduct in weighing whether discipline falls within the reasonable range of employer responses. The City reserves the right to jump a step when this is justified by the nature of the misconduct. In my view, the lock step approach should also be tempered when this is warranted by the circumstances. 111 … taking all of the circumstances here into consideration, I am of the view that imposing a penalty which places a twenty-five (25) year employee one (1) step from termination, which under the lock step approach could be relatively minor misconduct, for calling in late, is excessive and offends my sense of justice and equity. In my view a reasonable response would have been the imposition of another two (2) day suspension. …", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-35", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 89–90", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Long seemed to have a good deal of empathy for the grievor and was well aware of his obligation to determine and consider all the mitigating circumstances. His first response upon being notified of the incident was to ask if perhaps there had been a shift change that might explain the grievor’s failure to report to work. When he imposed the 20‑day suspension, he delayed its start until after an upcoming holiday, so that the grievor would not lose statutory holiday pay. It was clear that Mr. Long approached the matter and the grievor in good faith and with every intention of reaching a just determination. However, in my view, he incorrectly interpreted and misapplied the principle of progressive discipline and the applicable policies and guidelines.\n\nIn fact, it appears that the Agency might have misapplied the principle of progressive discipline and the applicable policies and guidelines even before the file reached Mr. Long. The evidence revealed that in the normal course, Mr. Marschner would have retained the file through to completion. As superintendent, he would have determined and imposed the disciplinary action, if it was a 5‑day suspension or less. It was determined at some point that it would definitely be more than 5 days, and therefore, the file was taken out of his hands and passed to Mr. Long. However, neither manager knew or could recall exactly how or by whom this decision was made. They both speculated that it likely arose from a discussion that Mr. Marschner would have had with a labour relations representative, with whom he would have consulted in the normal course.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-36", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 91–93", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This gap in the evidence suggests that the decision that the discipline would definitely be more severe than a 5‑day suspension was made before anyone decided what the discipline would be. Further, it was not made by either Mr. Long or Mr. Marschner but was either made or recommended by someone else. Therefore, it is more likely than not that Mr. Long’s misunderstanding of the principle of progressive discipline and the applicable policies and guidelines was not his alone.\n\nWhoever determined the severity of the discipline did so before Mr. Marschner had an opportunity to make his own determination after considering all the circumstances and the mitigating and aggravating factors. Mr. Marschner testified that he was involved and passed on the information from the investigation but did not recall making any recommendation about discipline. Therefore, it is more probable than not that the decision to refer the matter up the ladder was based on the same assumption that Mr. Long made — that the principle of progressive discipline should be applied in a lock-step fashion based simply on the severity of the last disciplinary action imposed.\n\nI note again the Wm. Scott & Company Ltd. list of factors to be considered. As already mentioned, that list is not comprehensive, but it is nevertheless useful. The first factor listed is the seriousness of the behaviour at issue which must be considered first and foremost.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-37", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 94–97", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Had the grievor’s behaviour been a negative interaction with a traveller or truck driver, behaviour for which he had already received 5‑, 10‑, and 15‑day suspensions, then a 20‑day suspension might not have been excessive, depending, of course, on all the circumstances and the mitigating and aggravating factors. But this was not a negative interaction with a traveller. While there is no doubt that failing to report to work is a serious matter that can negatively impact operational safety and efficiency, it is simply not in the same league as negative interactions with drivers.\n\nThe grievor had also had prior incidents of failing to report to work, but the last one (on August 27, 2013) had occurred almost two years prior to the March 2, 2015, incident. And while both witnesses called by the deputy head, and even the grievor to some extent, spoke to the seriousness of a failure to report to work in the border services context, the best evidence of the relative seriousness of this behaviour is the previous discipline that the grievor received for it — a combined 2‑day suspension for five distinct incidents.\n\nIt is also telling that management waited until five such incidents had accumulated over a period of two years before imposing any discipline for them. The grievor was disciplined in October 2013 for failures to report to work in 2011, 2012, and much earlier in 2013. This suggests that had the fifth incident not occurred, the first four failures to report to work would likely have resulted in no discipline at all.\n\nFurther, he had received that 2‑day suspension after receiving suspensions of 5 and 10 days for more serious matters. Clearly, as Mr. Long acknowledged, management had not previously applied progressive discipline in a lock-step manner.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-38", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 98–100", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In these circumstances, the principle of progressive discipline would be correctly applied by primarily considering the prior combined 2‑day suspension for the five distinct similar incidents of failing to report and progressing from there, rather than jumping off from the 15‑day suspension that had been imposed for very serious behaviour of a completely different nature.\n\nHowever, this is not to say that progressive discipline would dictate simply going to the next step after the combined 2‑day suspension for five distinct failures to report while not considering the prior discipline received for other, more serious, behaviour. The grievor suggested that if five distinct similar prior incidents resulted in a combined 2‑day suspension, then proportional discipline for the March 2, 2015 incident would be a 1‑ or 2‑day suspension, or possibly even a written reprimand. I disagree.\n\nWhile a significant disciplinary record for conduct of a different nature does not automatically constitute the starting point, neither should it necessarily be completely discounted. The jurisprudence is clear that while disciplinary actions should not be imposed in a lock-step fashion, prior discipline for different types of behaviour need not be ignored but rather, where appropriate, can be considered as an aggravating factor.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-39", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 101–103", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Neither witness for the deputy head testified that the grievor was not a good employee. To the contrary, Mr. Marschner said that he was a good officer. Nevertheless, the fact remains that he had a substantial disciplinary record that cannot be ignored simply because it largely consisted of behaviour of a different nature than the failure to report to work. The grievor’s negative interactions with travellers and drivers, firearms violations, failure to attend court, and public criticism of the Agency do not paint a picture of an employee who cared greatly about his job, took discipline seriously, or learned from his mistakes. The grievor testified that he did not dispute the underlying behaviour that had resulted in these prior disciplinary actions and that while he might have disagreed with some of the details, he confirmed that he had chosen not to grieve them.\n\nAccordingly, I have considered the grievor’s substantial disciplinary record as a significant aggravating factor. I have also considered the mitigating factors that management considered: the grievor’s length of service, his remorse, and his co-operation with the process.\n\nAlthough I did not admit the grievor’s medical records into evidence, I considered the grievor’s testimony about his personal and medical issues. However, the grievor did not draw any link between these issues and his failure to report to work on March 2, 2015. For example, although he was diagnosed with a sleep disorder much later, and although he testified to having trouble sleeping at the time, he did not suggest that he failed to report to work on March 2, 2015, because of it. He said that he simply got the schedule wrong, either by reading the wrong section of the master schedule or by copying it down in his book incorrectly.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-40", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 104–107", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Although it is not hard to appreciate that the grievor’s personal circumstances meant that his life was in significant disarray and that that may well have contributed to the likelihood of him getting his work schedule wrong, no evidence established any such link, not even his own explanation as to what happened on March 2, 2015.\n\nAccordingly, considering the nature of the grievor’s conduct on March 2, 2015, the operational difficulty that such conduct can create, the mitigating factors of remorse and co-operation, as well as the aggravating factor of a significant disciplinary record, I find that the 20-day suspension was excessive. A 4‑day suspension will be substituted as an appropriate disciplinary response.\n\nThe grievor requested a confidentiality order with respect to his medical records given the sensitive personal and medical information in them. These documents were provisionally identified as Exhibits 3 and 4 during the hearing pending my ruling on their admissibility. They were not formally entered in evidence. As I have allowed the deputy head’s objection to their admissibility and declared that they do not form part of the Board’s record of these proceedings, the grievor’s request for a confidentiality order is moot.\n\nFor its part, the deputy head requested a confidentiality order with respect to Exhibit 2 (the grievor’s work schedule) due to security concerns should information about the scheduling process of the border services officers be made public.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-41", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 108–109", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Requests for confidentiality orders must be considered and analyzed in the context of the open court principle, a fundamental principle that applies to all Board hearings. In Sherman Estate v. Donovan, 2021 SCC 25, at para. 38, the Supreme Court of Canada reformulated the applicable legal analysis so as to require the party seeking a confidentiality order to establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order sought would outweigh its negative effects.\n\nThe Court noted that this new formulation preserves the essence of the Dagenais/Mentuck test (see Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, and R. v. Mentuck, 2001 SCC 76), as redefined in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-42", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 110–111", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The Board has considered security-related requests for confidentiality in various contexts. For example, in Douglas v. Treasury Board (Correctional Service of Canada), 2020 FPSLREB 51 the Board was asked to seal exhibits that had been introduced to show the physical setup for grievors with respect to an accommodation. They consisted of pictures and a floor plan of a federal correctional facility and the request to seal them was based on security concerns. Citing the Dagenais/Mentuck test as redefined in Sierra Club the Board concluded that: [64] The Board adheres to the open-court principle in its hearings and decision making. Its files are publicly accessible. However, some situations warrant a confidentiality order …. [65] Preserving the security of a penitentiary is a valid concern that outweighs the public’s interest in the proceedings. …. Making those public could create a risk for [the Nova Institution for Women]. The pictures and floorplan constitute Exhibit E-2, and that exhibit shall be sealed.\n\nEnsuring security at the border is an important public interest and I accept, on a balance of probabilities, that public access to the grievor’s work schedule — that is, to the work schedule of a border services officer at the Blue Water Bridge Port of Entry — poses a serious risk to the security of the border. I find that nothing short of shielding the grievor’s work schedule from public access would prevent a risk to the security of the border. Therefore, sealing the grievor’s work schedule is the only reasonable option available to Board. In my view, the beneficial effect of sealing the grievor’s work schedule in these circumstances far outweighs the negative effect on the right of the public to access the Board’s record in this matter.", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-520990-43", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 94", + "act_short": "Menzies", + "act_name": "Menzies v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Menzies v. Deputy Head (Canada Border Services Agency), 2022 FPSLREB 94", + "marginal_note": "paras 112–118", + "heading": "Progressive discipline of a CBSA border services officer; the lock-step approach to discipline rejected", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "For all these reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe deputy head’s objection to the admissibility of the grievor’s medical records into evidence is allowed and I declare that they do not form part of the Board’s record of these proceedings.\n\nI order the Executive Director of the Board’s Secretariat to ensure that no copies of the grievor’s medical records (provisionally identified as Exhibits 3 and 4 during the hearing held on June 14 to 16, 2022) remain in the Board’s records of these proceedings.\n\nThe 20‑day suspension is replaced by a 4‑day suspension.\n\nI order the deputy head to pay the grievor the 16 days’ salary and benefits to which he would have been entitled but for the 20-day suspension, less the usual deductions.\n\nExhibit 2 (the grievor’s work schedule) is sealed.\n\nI will remain seized for 60 days from the date of this decision with respect to all questions related to calculating the amounts due under paragraph 116 of this decision. November 17, 2022. Nancy Rosenberg, a panel of the Federal Public Sector Labour Relations and Employment Board", + "current_to": "2022-11-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520990/index.do" + }, + { + "id": "fpslreb-521231-1", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 1–4", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On March 12, 2018, the employment of Anne Kline (“the grievor”) was terminated by her employer, the Canada Border Services Agency (“CBSA”, “the employer”, or “the respondent”) for disciplinary reasons. The termination letter cited two grounds, one of which was withdrawn at the outset of the hearing. The remaining ground is as follows: … … you failed to issue, or cause to be issued, the final verification report relating to the tariff classification of certain products imported by [the company] in a timely manner, despite it being your responsibility to do so, resulting in a loss of duties in excess of $25,000,000 as a result of the expiration of statutory time limits on recovery …. …\n\nThe letter went on to conclude that the grievor’s “… gross negligence, serious and significant lack of judgment and insubordination have irreparably breached the bond of trust …”. Ms. Kline grieved the termination on March 26, 2018, and that grievance was ultimately referred to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication.\n\nFor the reasons that follow, the grievance is allowed.\n\nThe employer requested a sealing order for third-party business records, and the anonymization of the third-party’s name. The grievor requested a sealing order for her tax records and the redaction of her SIN (social insurance number) and PRI (personal record identifier) numbers. These requests were unopposed.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-2", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 5–6", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The “Dagenais/Mentuck” test (see Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; and R. v. Mentuck, 2001 SCC 76) requires that a document be sealed only if the potential harm of disclosure significantly outweighs its benefits (see Pajic v. Statistical Survey Operations, 2012 PSLRB 70; and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41). More recently, the Supreme Court of Canada reformulated the test in Sherman Estate v. Donovan, 2021 SCC 25, at paragraph 38, to require the party seeking a confidentiality order to establish that (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.\n\nIn this case, the identification of a business and disclosure of its records may cause it harm. The records contain confidential financial and manufacturing information that could unfairly advantage competitors. The reasoning in this matter does not depend on these records, nor on the identity of the business. Thus, the salutary effect of the sealing and redaction orders requested outweighs the public interest in open proceedings. At an August 17, 2020, pre-hearing conference, I ordered the business records sealed and the third party’s name anonymized. It is referenced in this decision as “the company”. Similarly, the risk to the grievor from disclosing her PRI, SIN, and tax records outweighs any public interest in disclosure. Her tax records were ordered sealed, and her SIN and PRI have been redacted.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-3", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 7–8", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The events at issue occurred between June 2012 and March 2018, first within the Trade Programs Directorate (“TPD” — not to be confused with the Trade Policy Division (“the Policy Division”), a division within the TPD) and its Functional Guidance Unit (“FGU”) and, after a 2014 reorganization merged the TPD with another directorate, within the newly formed Trade and Anti-dumping Programs Directorate (“TAPD”). Much of the evidence about the TPD’s and the TAPD’s structure and activities, and the organizational changes during the events at issue, was undisputed.\n\nI granted a joint request to exclude witnesses. These were the employer’s witnesses: · Susan Hague (at the time of the events at issue, and to avoid confusion, throughout this decision, referred to as Ms. Leblanc), Director, Policy Division, TPD/TAPD, December 2012 to May 2014, who reported to the grievor. · Dino Pezoulas, Senior Advisor, FGU, August 2012 to November 2014, and Acting Manager, FGU, Policy Division, TPD/TAPD, January 2013 to January 2014 and May 2014 to November 2014, who reported to Ms. Leblanc while he was a manager on an acting basis. · Kelly Bartlett, Senior Program Officer (subsequently Senior Program Advisor), Tariff Classification Policy (Food, Plant, and Animal Area), Policy Division, TPD/TAPD, November 2007 to July 2018, who reported to Mr. Pezoulas and then to Mark Grant, a manager. · Shawn Riel, Special Advisor to the Director General and Executive Director, TAPD, April 2014 to December 2014. · Brent McRoberts, Director General, TAPD, March 2014 to March 2017. · John Ossowski, President, CBSA, December 2016 to June 2022. · Michel Séguin, BMCI Consulting Inc. (“BMCI”).", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-4", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 9–11", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "For ease of reference, information about CBSA employees who did not testify but who were frequently referenced is provided in the following table: Name Title Relevant period Manon Gilbert Strategic Advisor, Director General’s Office, TPD & TAPD July 2013 to December 2014 Mark Grant Manager, FGU, Policy Division, TAPD February 2014 to April 2014 and December 2014 to February 2017 Brad Loynachan Director, Policy Division, TAPD, who succeeded Ms. Leblanc June 2014 to August 2018 Catarina Ardito-Toffolo Director, Trade Compliance Division, TAPD March 2014 to March 2016 Richard Wex Associate Vice-President, Programs Branch Vice-President, Programs Branch February 2013 to December 2013 December 2013 to September 2015 Peter Hill Associate Vice-President, Programs Branch December 2013 to July 2018\n\nThe termination grounds relate to a file handled at times by a CBSA regional office, the grievor, and multiple TPD/TAPD employees. The file concerned the company’s importation of two similar products with the technical names “BF11” and “PC/SS”; both are informally called “plastic cream”, as they contain a product that also answers to this description.\n\nIn 1992, the grievor was appointed as a PM-01 customs inspector at Revenue Canada. She rose through the CBSA’s ranks for over two decades, assuming her first managerial role, in the Prohibited Importations Unit, in 2005. In 2007, she became an EX-01 director. In December 2012, she became the EX-02 director general of the TPD.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-5", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 12–14", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Before the TAPD was created, the grievor was responsible for a team of 114 employees, with 6 direct reports: 2 directors (including the FGU’s director), 1 manager, and 3 administrative staff. She oversaw a budget of $65 million, as well as the agency’s policy, compliance, and quality-assurance work related to trade programs.\n\nThe grievor regularly dealt with sensitive files. A file could be sensitive for many reasons, including a high amount of duties, or the potential for media attention, for economic impact, or for litigation. Her approach on these files was to ensure that she had her “ducks in a row”, that briefings were properly done, that the CBSA’s position was factually supported, and that the CBSA’s senior leadership was well engaged on the issues, so that the CBSA was ready to address public, legal, media, or political responses arising from a sensitive file. The grievor reviewed and approved briefing notes when there was a need to make the CBSA’s president and others aware of an issue or file. In her testimony, she spoke about her directorate’s work knowledgably, with clarity and precision, while acknowledging that she lacked the technical expertise of a subject matter expert.\n\nThe FGU provided expert guidance on imported goods classification, which is central to determining the duties payable. When classifying an imported good, its state as it crosses the border is a central consideration. FGU employees have subject-matter expertise for specific goods, and they advise CBSA regional officers.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-6", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 15–18", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "After importation, CBSA regional offices can conduct tariff compliance verifications (“verifications”) to confirm that an importer applied the correct classification. Verification decisions are released by the regional office and can increase or decrease the duties owed if the original classification was incorrect. During the events at issue, the CBSA undertook between 2000 and 3000 verifications annually. Verification decisions can be appealed, but all duties owing must be paid before an appeal is initiated. If a verification decision results in duties owing, the CBSA can retroactively collect duties for up to 4 years before the decision was rendered. This 4-year rule is critically important for this grievance.\n\nThe FGU provided advisory support for regional officers’ verification questions. Arriving at a correct classification could involve laboratory (“lab”) analysis, research, and reviews of past verification decisions. Ms. Bartlett, an FGU dairy expert, provided technical support on the recurring topic of what constituted a dairy good.\n\nImporters also have the option of requesting an advance ruling to confirm a classification before an importation is made. Unlike verification decisions, advance rulings are released by the FGU and had, at that time, a 120-day service standard. The FGU did not have service standards for its verification support.\n\nThe FGU manager (a position sometimes held by Mr. Pezoulas on an acting basis, and then, after February 2014, by Mr. Grant, also on an off-and-on acting basis) reported to the Policy Division director (from December 2012 to May 2014, Ms. Leblanc, and from June 2014 to August 2018, Mr. Loynachan), who reported to the grievor, as the TPD’s executive director, and then to the grievor and Mr. McRoberts, as the TAPD executive team.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-7", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 19–20", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Ms. Leblanc was forthright about her limited trade policy experience. She candidly admitted that she felt overwhelmed by the work and learning curve in her new role. In contrast to Mr. Pezoulas, Ms. Bartlett, and the grievor, she did not speak with clarity or precision about the company’s file or the FGU’s work. As just one example of many factual imprecisions, on cross-examination, Ms. Leblanc initially stated that she believed that the company contested an advanced ruling and then reversed herself. In comparison to other witnesses, Ms. Leblanc had little depth of understanding of the issues related to the imported products, although she did recall that Mr. Pezoulas and Ms. Bartlett “had tried to explain plastic cream” to her. Her capacity for recall contrasted sharply with that of the FGU witnesses and the grievor who, despite their differing views of the best course of action in the company’s file, had similar recollections of events, with minor inconsistencies that were attributable to the passage of time. Ms. Leblanc’s lack of recall appeared to be rooted in her limited understanding of the company’s file and the FGU’s work rather than in any failure of transparency or honesty on her part.\n\nMs. LeBlanc’s testimony described a sometimes-strained relationship with the grievor, who she felt had cut her out of meetings. She indicated that neither she nor the grievor were involved in day-to-day FGU work, including the work on the company’s file. She and Ms. Bartlett confirmed that FGU files were not usually brought to the grievor before or after the merger, unless her intervention was needed. Ms. Leblanc confirmed that when the grievor gave input, it was often on sensitive files.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-8", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 21–23", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On sensitive FGU files, the grievor might give the FGU guidance, direct the FGU’s next steps, or approve a proposed action plan. Ms. Bartlett acknowledged that her role did not include deciding when a briefing note was ready to be sent. She estimated that she and the grievor worked on about 25 briefing notes during the years in which they worked together.\n\nIn a June 2012, letter, the CBSA advised the company of a verification of their 2011 plastic cream imports. The company had classified those imports as non-dairy products. The CBSA asked the company to provide product samples; information on how the imported products were manufactured, used, and stored; and information on what processing took place after importation. The company provided more information in August 2012. The CBSA’s Greater Toronto Area Region requested functional guidance for the company’s verification in September 2012. In October 2012, a lab analysis was also requested. All this occurred before the grievor’s involvement in the company’s file.\n\nIn November 2012, an interim report proposed a dairy product classification for the company’s plastic cream imports. This had the potential to increase the duties owed, possibly by tens of millions of dollars, for 2011 and on an ongoing basis. All witnesses testified to the fact that this amount was exceptionally large. The company responded on January 18, 2013, with a report from Dr. Art Hill, Chair of the Department of Food Science at Guelph University (not to be confused with Peter Hill, Associate Vice-President, Programs Branch, CBSA, who will be mentioned later). Dr. Hill pointed to what he called “uncertainties” in the CBSA’s analysis, the conclusions of which he disputed.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-9", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 24–25", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Pezoulas and Ms. Leblanc first became involved with the company’s file in early 2013, roughly concurrent with their arrivals in the FGU. Further functional guidance was requested in May 2013. Mr. Pezoulas stressed repeatedly in his testimony that all the necessary work was completed on the company’s file, and that the FGU had already given functional guidance, before he arrived as a manager. In his view, the verification officer had done her due diligence and had come to the FGU to confirm her findings. Mr. Pezoulas briefed Ms. Leblanc on the company’s file, and during the first half of 2013, they discussed it at meetings. Sometime in 2013, Ms. Leblanc began to include the company’s file among the topics of her recurring bilateral meetings (“bilats”) with the grievor.\n\nIn the spring of 2013, the company requested a meeting with the CBSA. On July 11, 2013, the grievor, Mr. Pezoulas, Ms. Bartlett, and other CBSA employees met with the company president, his legal counsel, and Dr. Hill. Meetings with importers were rare and were usually about large sums of duties. For Mr. Pezoulas, it was his first meeting of this nature with an importer. At the meeting, the company stressed that the proposed classification would have catastrophic impacts on its business and community. It argued that the manufacturing process altered the imports in a way that was relevant to their classification and cited prior verification decisions. In its opinion, Dr. Hill’s report confirmed that the imports were not cream or preparations of cream but were food preparations of other fats, derived from milk. As such, in the company’s opinion, they were not dairy products.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-10", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 26–27", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Ms. Bartlett testified about the disagreements between the CBSA and the company as to plastic cream’s proper classification, which included factors such as the product’s ingredients and how they could be stored, separated, and used. To simplify some of the technical considerations, the grievor provided an analogy; if bread is made with eggs, it is still classified as bread, because the eggs are mixed indistinguishably into the loaf. But if a festive braided loaf, decorated with hard boiled eggs in their shells, is imported, the loaf will be classified both as bread and as an egg product, because the eggs are distinguishable and separable. For plastic cream, the technical considerations turned in part on whether the dairy products in plastic cream were integral or separable and if separable, at what temperature and in what proportions.\n\nAfter the meeting, Ms. Bartlett reviewed Dr. Hill’s report, to ensure that the CBSA’s conclusions were in line with this new information. Both the CBSA lab and the FGU agreed that the new information did not change the proposed classification. However, for the grievor, there were still information gaps that made it impossible to definitively resolve the differing views of the CBSA and the company. She felt that the FGU was well placed to obtain the information required to close those gaps.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-11", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 28–29", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Given the millions of dollars of duties at stake, a briefing note was required before the region could issue a verification decision. As the company had underscored at the July 2013 meeting, the retroactive duties could have wide-ranging impacts, including company bankruptcy, mass layoffs, regional economic slowdowns, political attention, auditor general scrutiny, and possible media attention on which the CBSA might be called to comment. Before being sent to the CBSA’s president, briefing notes were thoroughly vetted and then signed off by designated executives. The grievor or, after his arrival, Mr. McRoberts was the ultimate signatory on the briefing note. Work on the briefing note started in the fall of 2013.\n\nIn the early fall of 2013, Mr. Pezoulas went to Ms. Leblanc’s office. He was concerned that the file was not advancing. He did not believe that there were mistakes in the CBSA’s interim report or that there would be problems if the verification decision was issued. Ms. Leblanc suggested that they raise the issue directly with the grievor. On September 26, 2013, Mr. Pezoulas emailed the grievor, copying Ms. Leblanc, Ms. Bartlett, and others, stating that he and Ms. Bartlett had concluded that the company’s new information did not change the CBSA’s proposed classification. It was unusual for someone at Mr. Pezoulas’ level to write directly to a director general, but he was concerned about missing the four-year window for 2011 duties (which would start to close as of January 1, 2015). He recommended that the regional office issue the verification decision, noting that the company had the right to appeal.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-12", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 30–31", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor’s response was that she “most definitely” did not agree with this proposal. She noted that it was a highly significant verification that would garner attention. She did not feel that the CBSA had its “ducks in a row”. Mr. Pezoulas then asked to meet with her, in short order, to discuss next steps. She declined, stating that her presence was not needed, and instead asked that “[y]ou guys” (presumably those copied) formulate a plan for Ms. Leblanc to present to her. Later in the same email exchange, the grievor told Ms. Leblanc this: “These are your files and I expect you and your staff to stay on top of them and handle them appropriately.”\n\nThe grievor asked the FGU to obtain more information about plastic cream’s manufacturing process. In her opinion, there was no definitive answer to outstanding questions about how plastic cream was made and used. On that basis, she did not understand how the FGU could recommend closing the file. To resolve these concerns, she recommended directly contacting the company and the two United States (U.S.) manufacturers of the imports.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-13", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 32–34", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Pezoulas recalled an informal discussion in fall 2013 with the grievor and Ms. Bartlett about next steps. The grievor said that they could call or visit the U.S. manufacturers, pursuant to North American Free Trade Agreement (“NAFTA”) provisions. Ms. Bartlett was clear in her testimony that she considered contacting the U.S. manufacturers to be an atypical option. She doubted that they would willingly assist the CBSA and saw no way to rely on NAFTA provisions, a view which she confirmed with her colleagues at the time. In October 2013, the grievor requested an update and an internal meeting among herself, Mr. Pezoulas, and others, so that the plan could be finalized. Despite Ms. Bartlett’s misgivings, on October 30, 2013, letters were sent to the two U.S. manufacturers requesting manufacturing process details.\n\nMs. Leblanc had the impression throughout this time that the grievor thought that the staff had “to do their homework” and ascribed a highly negative tone to the grievor’s comment in an email to her that the staff needed to do “the actual work.” Ms. Bartlett recalls that the grievor told her the team had to “dig deeper”.\n\nReplies from the U.S. manufacturers came in late 2013. The grievor found these inconclusive. Both manufacturers suggested that the CBSA contact the company for more information. In December 2013, Ms. Leblanc told the grievor that her team was confident that they could finalize and send the briefing note so that the region could issue the verification decision.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-14", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 35–36", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The FGU again sought the CBSA lab’s opinion in December 2013. By January 2014, the lab and the FGU indicated that nothing that had been received changed their original opinion that plastic cream was a dairy good. Once all this was done, Mr. Pezoulas and Ms. Bartlett felt that there was enough information to move the briefing note forward. The grievor did not share this view.\n\nAt some point after replies were received from the U.S. manufacturers, Ms. Bartlett and Mr. Pezoulas dropped by the grievor’s office and ended up walking with her on her way to catch a cab. She talked informally with them about the information that was still missing and about ways to obtain it. The manufacturers could be visited in person, travelling by car, although the process involved in setting this up might take months. The company might be able to arrange an invitation to the manufacturers. The grievor again suggested that it might be possible to use NAFTA provisions, in the spirit of brainstorming ideas. She expected the FGU to figure out how to secure the necessary information. Although the lab already had the ingredients of the imports, it did not have the manufacturing process steps. The grievor considered this to be a central vulnerability identified by the company at the July meeting.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-15", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 37–38", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to the compliance verification officer’s record of events, on February 4th and 7th, 2014, the region was notified by emails that the FGU had outstanding questions and was drafting a letter to the company to clarify processing. More work was also done on the briefing note in February 2014. Ms. Bartlett said that working on briefing notes with the grievor was often challenging, as the grievor made multiple edits and stylistic rewrites (a tendency also remarked on by others), but Ms. Bartlett also noted that this was not an issue for the company’s briefing note. She confirmed that on the company’s file, the grievor simply did not think that the CBSA had all the required information. Ms. Bartlett reviewed the follow-up options with Mr. Pezoulas. She testified that with Eric Trudel, Manager, Verification, they considered a site visit. She did not recall whether the grievor was told that the FGU was not pursuing further follow-up options. The briefing note was put on hold, pending the receipt of more information.\n\nThe FGU had already started working on a communications package for the verification decision. In Ms. Bartlett’s view, there was no valid explanation for the briefing note not being issued after January 2014. As far as Ms. Leblanc was concerned, when a draft briefing note was sent to the grievor in February of 2014, no outstanding file work remained. This testimony was entirely consistent with several emails entered into evidence. The emails also show that the grievor did not agree with these opinions. But no evidence indicates that Ms. Leblanc or anyone else told the grievor that no further work was being done on the company’s file.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-16", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 39–41", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As part of a reorganization in 2014, some CBSA directorates were merged and were to be “team managed” by pairs of EX-03 and EX-02 executives. Nine directorates were merged into directorates managed jointly by an EX-02 and an EX-03. In March 2014, Mr. McRoberts was appointed the director general of the newly formed TAPD, which merged the previous TPD and another directorate. The new directorate included 183 employees. The FGU remained within the TAPD.\n\nThe grievor had been the EX-02 director general of the TPD. After the merger, she became the EX-02 executive director of the TAPD, managing the TAPD with Mr. McRoberts. Her performance goals and Mr. McRoberts’ were identical. Her former office was given to him. Several witnesses, including the grievor, noted that even though her group and level were unchanged, this effectively diminished her leadership. She no longer signed off on briefing notes; this responsibility was transferred to Mr. McRoberts, who had final sign off on all TAPD files.\n\nOther personnel changes occurred at roughly the same time. In March 2014, Ms. Ardito-Toffolo became the director of the Trade Compliance Division. In this role, she had regular bilats with Mr. McRoberts and the grievor to discuss ongoing files. In June 2014, Ms. Leblanc was replaced by Mr. Loynachan.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-17", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 42–43", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. McRoberts stated that “functionally”, both he and the grievor reported to Mr. Wex, but he also indicated that the grievor reported to him and that he alone provided the direction for the TAPD. On cross-examination, Mr. McRoberts conceded that the grievor reported to Mr. Wex, for her performance assessment, but continued to stress that he alone was responsible for the TAPD. He said that in his first discussion about the TAPD with Mr. Wex, Mr. Wex told him that the TPD had had “a lot of issues, as far as the ADM’s office was concerned.” Mr. McRoberts did not know if these issues had ever been discussed with the grievor. He testified that it had been said that the TPD was the “worst performer” at the CBSA, in terms of timely task completion (although he had no firsthand knowledge of the source or basis of this remark), and that the grievor had interpersonal skills gaps and performance challenges. Because of this, Mr. Wex wanted a “checks and balances” system, although Mr. McRoberts did not elaborate on what this entailed.\n\nMr. McRoberts noted repeatedly in his testimony that the grievor held herself out as a trade expert and that she was recognized by her peers as such. He stressed that he relied on her. His goal was to “leverage” her expertise while addressing her performance deficiencies. As a first example of these deficiencies, Mr. McRoberts said that the grievor insisted on personally reviewing “things such as” ATIP releases, and these ended up piling up on her desk.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-18", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 44–45", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor said that the ATIP backlog stemmed from a 2014 spike in ATIP requests. Mr. McRoberts conceded that this in fact had been the case. He went on to say that she had no faith in her directors or reporting managers and that she went through everything they did, page by page. These statements were at odds with emails adduced in evidence and the testimonies of others, which show the grievor delegating and asking others to prepare plans and carry out work. Mr. McRoberts added that he changed how the TAPD worked, which then cleared up the ATIP backlog. No evidence supported this statement; nor were documents introduced to demonstrate the operational changes or positive impacts that Mr. McRoberts described.\n\nAs a second example of the grievor’s performance deficiencies, Mr. McRoberts stated that routinely, she questioned people about security-form particulars, such as family contact information. In his opinion, this showed poor prioritization and delegation. When it was put to him that she had about 10 security forms to review annually and that she was legally obligated to personally sign off on them, he made vague comments about the Protected B status of the forms “possibly” meaning that they had to go straight to security once completed, instead of being reviewed by the grievor. No other information was provided.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-19", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 46–48", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. McRoberts implied repeatedly that the TAPD merger was either exclusively or largely due to problems specific to the grievor. When asked about whether the merger was part of a broader restructuring, he said that he had no recall of that. When his attention was drawn to a quarterly report documenting the broader restructuring, at first, he steadfastly maintained that he had no memory of the other CBSA departmental mergers. When pressed, he reluctantly recalled a few of the changes and then testified on redirect examination that none of the other changes involved mergers, even in the face of documentary references to departmental “consolidations.” This was one of several moments, others of which are detailed later in this decision, when Mr. McRoberts’ statements lacked consistency and transparency.\n\nThe company’s file appeared on several bring-forward (“BF”) lists throughout 2014. In early 2014, Ms. Leblanc began reporting to Mr. McRoberts and had bilats with him instead of the grievor. She provided Mr. McRoberts with a full briefing, which she stated likely included the company’s file, while the grievor was on vacation; there was a further technical meeting on the company’s file after the grievor returned. Because of the grievor’s experience, she continued to give direction, as needed, on the company’s and other complex files.\n\nMs. Leblanc believed that the grievor was upset by the merger and that she felt pushed aside. For Ms. Leblanc, the ongoing delay on the company’s briefing note felt like deliberate stalling. Every time the company’s file was on a meeting agenda, Ms. Leblanc felt that she and the grievor ended up “in a personal venting session”, with the result that “nothing got action”.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-20", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 49–50", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "From April to December 2014, Mr. Riel was the special advisor to the grievor and Mr. McRoberts. He also viewed the company’s file as stalled. Working with Ms. Gilbert, whose BF lists for the grievor included the company, he tried to support the completion of the company’s file, in part through conversations with the grievor. When Ms. Leblanc left in May 2014, the briefing note remained outstanding.\n\nMr. Riel testified that in 2014, he attended meetings with the grievor, Ms. Gilbert, and Mr. McRoberts at which the company’s file was referenced, and from these meetings, he understood that there was an outstanding question on the manufacturing process. Mr. McRoberts testified that he had no recall of these discussions. This appears highly improbable, for several reasons. The company’s file was sufficiently significant for Mr. McRoberts to be briefed on it on his arrival at the TAPD. It was already the subject of a draft briefing note, and a high value of duties was involved. Mr. Riel recalled Mr. McRoberts being concerned about progress on the company’s file and further described pressure being brought to bear to advance it. This is inconsistent with Mr. McRoberts’s lack of recall of the company’s file being discussed at meetings he had with the grievor. At bilats, according to Mr. Riel, when Mr. McRoberts pushed the grievor on the file’s progress, she always replied that she was waiting for information. Mr. McRoberts recalled none of this. He had repeated difficulties recalling matters described by other witnesses, in this instance and others.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-21", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 51–53", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. McRoberts also either had little recall or displayed little understanding about subjects including whether duties must be paid before a file is appealed, what files were typically handled by the FGU, and whether there was an outstanding question on the company’s file at the time of the grievor’s eventual departure to work on the CBSA Assessment and Revenue Management Project (“CARM”) or on her subsequent departure on paid leave.\n\nSometime before he left the FGU in the fall of 2014, Mr. Pezoulas took the unusual step of reaching out directly to Mr. McRoberts, to express concerns about the possibility of missing the four-year window for retroactive duties. He bypassed his manager, who at that point was Mr. Loynachan, and the grievor, to whom Mr. Loynachan reported. He indicated to Mr. McRoberts that in his opinion, the file was complete and defensible, and that the briefing note was ready to be sent.\n\nMr. McRoberts stated in his testimony that he understood that the grievor was both “leading the file with the help of the team” and “stick-handling” (a hockey metaphor connoting control, maneuvering, or hands-on contact) the file by herself. When asked if he could have advanced the file when Mr. Pezoulas came to him with concerns in 2014, Mr. McRoberts said that he was not at all sure when concerns had been raised with him, despite having testified to the timing of Mr. Pezoulas’ concerns the day before. When his attention was drawn to the contradiction with his testimony of the previous day, he backtracked and said that he was not sure about the nature of the concerns that had actually been raised.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-22", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 54–55", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. McRoberts also testified that for most of 2014, he was unaware of how the four-year rule worked. Although this assertion is consistent with his overall tenuous grasp of many matters, as well as his spotty capacity for recall, this statement strains credulity; he had been briefed on the file, and it was discussed with him at many points by many players. It is improbable that none of these discussions referenced the critical four-year rule until the end of 2014.\n\nThere were also inconsistencies in Mr. McRoberts’ testimony on his authority to move the briefing note forward. As a further answer to the question of whether he could have advanced the company’s file in response to Mr. Pezoulas’ concerns in 2014 or indeed at any time, he said that he wanted the grievor’s “blessing” before forwarding the briefing note. He then vaguely referenced the file’s political importance and sensitivity as the reasons for waiting for the grievor’s green light. On cross-examination, he conceded that it was within the scope of his managerial role to be able to consider and make conclusions about those issues. Mr. Riel described Mr. McRoberts as “looking for the grievor’s approval” because the file was “her responsibility”. Mr. Riel also noted that had Mr. McRoberts moved the briefing note forward, the file would have been resolved sooner.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-23", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 56–58", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In his testimony, Mr. McRoberts stressed that part of the reason he did not move the file forward was that the grievor said that she alone had the knowledge required for the file, “because she knew the partners and the players.” In his view, although they received the same information about the file (a fact corroborated by other witnesses) she treated the company’s file as her own. He trusted her expertise. To him, she was a perfectionist; she delegated reluctantly and liked to control information.\n\nThe grievor’s testimony, which was consistent with those of Ms. Leblanc, Mr. Pezoulas, and Ms. Bartlett on this issue, was quite the opposite. These witnesses agreed that she did not do any of the substantive work on the file herself, including drafting the briefing note; rather, she guided those doing and overseeing the substantive work, corrected any deficiencies that she identified when called upon, and expected the FGU director, and the FGU managers, to update her as the file progressed.\n\nIn October 2014, Mr. McRoberts went on vacation, and the grievor was the director general on an acting basis. Evidence differed on the meaning of an October 10, 2014, email in which the company’s file was included in a list consisting of 24 file names. These files were to “be completed” before Mr. McRoberts returned from vacation. No detail whatsoever about the task completion being ordered is provided on the list for any of the files referenced, although the 3-sentence email notes that “Manon [Gilbert] has the context and details for most of the items.”", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-24", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 59–60", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to Mr. McRoberts, this email meant that the briefing note should have been finalized and ready for his sign off on his return. However, he also indicated that some of the items on the list were ongoing projects that would not have been completed until after he returned from vacation. The grievor testified that she understood that the fact that the company was on the list meant that progress or an update was expected on the file.\n\nOn November 14, 2014, the grievor discovered that her file on the company was missing from her desk. She sent a short email to Ms. Gilbert and Mr. Riel with the subject line, “Did we ever close [the company]”. In the email, she notes that she had asked for a follow-up with the manufacturers. Mr. Riel replied that neither he nor Ms. Gilbert recalled anything about reaching out to exporters. Mr. Riel committed to following up with Mr. Loynachan. After removing the grievor from the email thread, Ms. Gilbert asked Mr. Pezoulas when the grievor requested exporter information and whether she did so verbally or by email. Mr. Pezoulas replied that letters had already been sent to the exporters.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-25", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 61–62", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As 2014 closed, so did the window for full retroactive duties for the 2011 calendar year. Had the verification decision been issued in 2014, collecting retroactive duties for the full 2011 calendar year would still have been possible. Mr. McRoberts testified that at the end of 2014, the grievor said that the company’s file was nearly complete, and they were still working with the lab and waiting for more tests. Nothing in her testimony, or that of any others, suggests that lab results or other tests were expected or sought at that time. Witnesses who might have been able to corroborate Mr. McRoberts’ statement, such as Mr. Loynachan and Mr. Grant, were not called to testify. Further, Mr. McRoberts’ recall was inconsistent, or inaccurate, at other points, as already noted. As such, I do not find any evidence that meaningfully supports a finding that the grievor told Mr. McRoberts that lab results or tests were still pending at the end of 2014.\n\nMr. McRoberts testified that the delays in the company’s file were due to “something like” sabotage by the grievor, possibly because of the titular downgrade of her position. He felt that he did not receive the full story on files. He alluded to meetings and correspondence of which he was unaware, without providing details. He felt that he had provided the grievor with many chances “to mesh and bond and be on the same page.” When that did not work, he had to be become more assertive and go line-by-line on deliverables. Again, no details were provided.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-26", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 63–65", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In January of 2015, the grievor was called to a meeting, without prior notice, and was told that she would immediately begin working full-time on CARM. She took no files or workload with her when she started her CARM work; nor was she asked to continue working on TAPD matters, although her communications with Mr. McRoberts continued. In his testimony, Mr. McRoberts painted the grievor’s reassignment to CARM as a last chance for her to prove herself, given her performance challenges and gaps. Her involvement with the company’s file ended. With each day that passed in 2015, the possibility of collecting retroactive duties for imports before the corresponding date in 2011 was lost.\n\nJust over 10 months after the grievor’s assignment to CARM, the company’s TAPD file was closed. The verification decision was issued on November 17, 2015, shortly after the briefing note had been forwarded to the CBSA president. The lost duties were calculated at $26 006 621.\n\nMr. McRoberts testified that Ms. Ardito-Toffolo, who had begun working on the company’s file in October 2014, “rebuilt the file” after the grievor left and said that many meetings were held before finalizing the verification decision, “to examine questions and issues”. He praised Ms. Ardito-Toffolo highly, in his testimony, for the long hours she worked on the file. She did not testify. He further testified that after the grievor’s departure, it took 10 months to issue the decision, because they “had to go through the whole file again”, and “the file was such a mess”. When asked for specifics, he indicated that they “couldn’t find” the legal counsel letters, lab reports, or records of calls and meetings. He also testified that the grievor had also left other files in disarray. The grievor denied this.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-27", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 66–67", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The statements about the disarray in the company’s file are not consistent with the testimony of other witnesses. Evidence from other CBSA witnesses indicated that the substantive file would have been with the FGU rather than with the grievor, whose “file” would have included her personal notes and emails, many of which would have been to or from either Ms. Leblanc, Mr. Loynachan, or FGU staff. Further, the documents that Mr. McRoberts cited would have existed elsewhere, where they had originated; the lab would have had a copy of its own report, and the FGU, which had the working file, would have had copies of its correspondence, as would have had the region. Mr. McRoberts himself either had access to, or was in possession of, all of the documents the grievor had received. Even if I were to accept that the grievor’s file was disorganized and that documents were missing from it, how gathering the documents again would have taken 10 months is entirely unclear. At different points, Mr. McRoberts stated that the $26 million loss occurred because the briefing note was not issued in 2013, when it and the file were fully ready to go forward.\n\nThe verification decision was the subject of applications to the Canadian International Trade Tribunal and the Federal Court. They were discontinued before decisions on the merits were rendered. It was not contested that the amount of lost duties ultimately might have been the subject of settlement discussions between the CBSA and the company.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-28", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 68–69", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. McRoberts confirmed in cross-examination that as far as he knew, the grievor was never told that prioritization and delegation were performance issues for her. These issues are also not reflected in her performance evaluations. The performance review process included an annual performance rating based on a performance management agreement (“PMA”) and a mid-year meeting to review progress on annual goals. Performance pay documents (based on performance reviews that were also introduced into evidence) reflected the following performance ratings: · 2008-2009: “met all” · 2009-2010: “succeeded” · 2010-2011: “surpassed” · 2011-2012: “surpassed” · 2012-2013: “succeeded” · 2013-2014: “succeeded minus”\n\nFor the 2014-2015 fiscal year, the grievor received a performance rating of “does not meet”, which was mailed to her at home while she was on leave with pay.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-29", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 70–71", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "It was uncontested that the “surpassed” rating is given to less than 5% of executives. In the performance management agreement dated June 17, 2014, beside the question, “Based on this evaluation is a Performance Improvement Plan necessary?” “no” was checked. On the same form, the grievor’s individual rating was “succeeded minus”, and her corporate rating was “succeeded”. The document indicates that a “succeeded minus” can apply to newly appointed executives. The rationale provided for this in the grievor’s testimony was that in their first, partially complete year, new executives may not be able to achieve all their goals. But it is also clear from the form that this was not the only possible reason for a “succeeded minus” rating. Such a rating may also apply when performance expectations have not been fully met. Further, the form lists other possibilities in addition to those two. Mr. Wex, who could have resolved this ambiguity, was not called as a witness.\n\nThe grievor’s 2012-2013 end-of-year feedback indicates that at the mid-year review, people management and openness to trade-program transformation were discussed as growth areas. It further states that she had since demonstrated a willingness to further develop these leadership competencies. She indicated that in the meeting to discuss the 2012-2013 performance management agreement, sometime before the signature in June on the document itself, Mr. Wex gave her positive feedback, and she felt good about what she had accomplished in her first year in her new role.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-30", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 72–74", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In a March 31, 2015, performance meeting with Mr. Wex and Mr. Hill, the grievor received positive performance feedback on topics, including her arrival at CARM, for which she had provided her input in advance. Nothing was said about the company’s file. Mr. McRoberts confirmed in his testimony that he gave her no formal or informal warnings on the company’s file or on any other matter and that there was no discipline or any performance improvement plan of which he was aware for her performance generally or for the company’s file. He indicated that those were questions for Mr. Hill or Mr. Wex to answer. Mr. Wex was responsible for the grievor’s performance evaluations. Neither of these individuals testified.\n\nOn April 8, 2015, the grievor was convened to a meeting with Mr. Wex and Mr. Hill, which occurred immediately. She was told that her conduct at a meeting in the context of CARM had been unacceptable. Mr. Wex told her to go home immediately and to do the following: “think about what you’ve done”, while the CBSA contemplated the next steps. She was not provided with particulars about her problematic conduct. The company’s file was not discussed, and the meeting was limited to CARM issues.\n\nThe grievor was stunned by the meeting. She had received no advance notice of the agenda and at first was unclear as to the topic of discussion. She saw Mr. McRoberts immediately after the meeting and was told to distance herself from CBSA employees, which was challenging, because most of her social circle was built around the CBSA. In the days that followed, she had a surgical procedure and went on sick leave. While she was in hospital, Mr. Wex called to tell her to remain at home after her sick leave ended.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-31", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 75–77", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On April 27, 2015, Mr. McRoberts attached a “Management issues timeline” to an email ultimately forwarded to CBSA’s internal investigation unit. This timeline focused on the grievor’s management style and interactions with staff, as well as issues related to CARM. The company was not mentioned in the summary of management issues.\n\nIn summer 2015, the grievor received her first ever “does not meet” rating on her performance evaluation, which was for the 2014-2015 fiscal year. No feedback about that rating was provided; nor was any supporting evaluation provided. In August 2015, she retained legal counsel. When the grievor’s recovery was complete, she called Mr. Wex and stated that she was ready to go back to work. She was told to await further information, which was promised by October 30, 2015. October came and went, but no new information arrived.\n\nMr. McRoberts testified that Mr. Wex, who left the CBSA in September 2015, asked him for a report on the grievor’s performance issues before his departure. Mr. McRoberts replied that the CBSA “needed to engage an independent third party”. According to Mr. McRoberts, Mr. Wex agreed. Mr. McRoberts also referenced consultations with Mr. Hill and the CBSA’s Labour Relations branch. In early 2016, Michel Séguin, the president of BMCI and an experienced independent third-party investigator, was engaged to complete a “performance report.” Mr. McRoberts described Mr. Séguin as working very autonomously and professionally.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-32", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "para 78", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "While from the evidence and from his testimony, Mr. Séguin’s work appears to have been well organized, precisely documented, and highly professional, how he was independent or autonomous remains unclear. His statement of work does not outline an independent investigation. In a March 21, 2016, initial discussion with Mr. Séguin, Mr. McRoberts told him that because of the grievor’s poor performance, tens of millions of dollars had been lost. He also told Mr. Séguin that in March, there had been an internal investigation of the grievor’s harassment, bullying, and abuse of authority. Mr. McRoberts also told Mr. Séguin that the grievor’s life was her job and that she was financially independent. Her testimony that after the termination, she struggled to afford the counselling support previously covered by her employment benefits, ran directly counter to this assertion and was not challenged by the employer.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-33", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 79–81", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to Mr. Séguin, the scope of his mandated tasks from Mr. McRoberts included reviewing “about an inch” of documents given to him by Mr. McRoberts’ assistant, putting them in order, and selecting those relevant to the issues that Mr. McRoberts had identified. These documents did not include the full company file; nor did they include the grievor’s file or notes. On that basis, Mr. Séguin provided a chronology of events and interviewed these eight witnesses, who were identified by Mr. McRoberts: Marion Whitford, Janice Jacquard, Mr. Riel, Mr. Pezoulas, Zaina Sovani, Ms. Ardito-Toffolo, Mr. McRoberts, and Ray Bonnell. Mr. Bonnell was an employee in the employer’s internal investigation unit, who investigated ultimately unfounded harassment allegations against the grievor. The relevance of his work to the company’s file, the CARM allegations, or the performance-related allegations was never explained.\n\nMr. Séguin testified that his task was not to investigate wrongdoing but rather to compile documents accompanied by witness interview summaries. These summaries were not appended to the final version of the resulting report and were not adduced in evidence. Ultimately, the CBSA’s internal legal counsel described BMCI’s task as “… to assist with the production of the report.”\n\nMuch of Mr. Séguin’s work related to termination grounds that the employer has since withdrawn. He did not interview the grievor, Ms. Leblanc, Mr. Loynachan, Mr. Hill, or Mr. Grant; nor did he have any information from them about their involvement in the company’s file. Despite this, Mr. McRoberts repeatedly described Mr. Séguin as “an independent third party”. This description does not match the evidence received at the hearing.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-34", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 82–83", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In another instance of Mr. McRoberts’ poor powers of recall, he testified that he was entirely unaware that the grievor was never interviewed by Mr. Séguin. Mr. McRoberts conducted no interviews of his own; nor did he ask the grievor for more information or documents or for any witnesses whom she might have considered relevant. He would not confirm Mr. Séguin’s statement that Ms. Jacquard, his administrative assistant, had provided documents to Mr. Séguin. Initially, he had no recall whatsoever of his office ever providing any documents. Mr. McRoberts eventually conceded that Ms. Jacquard might have given documents to Mr. Séguin but maintained that he had no memory of instructing her to; nor did he have any idea of who else might have provided these instructions.\n\nMr. McRoberts acknowledged that Mr. Séguin indicated that he did not feel that his work could be described as an investigation; rather, it was a report based on the documents provided. Despite this, Mr. McRoberts stated in evidence that he stayed “at arm’s length” from the entire process and that he took a “firm stance” (implying opposition to this idea, of which there was no evidence) that he would not write the “investigation report.” Mr. McRoberts further indicated in evidence that he had not wanted to interfere with Mr. Séguin’s “investigation methodology”. At other points, he described Mr. Séguin’s product as a “fact-finding, performance report” rather than as a misconduct investigation.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-35", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 84–85", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Séguin authored a report (“the McRoberts Report”) that he provided to Mr. McRoberts and that he then edited, as directed by Mr. McRoberts, who signed the McRoberts Report. Mr. Séguin’s name does not appear on it. The McRoberts Report’s preamble states that its objective is “to provide a chronology of events”. Mr. McRoberts testified that he was “completely out of the loop” after the McRoberts Report, dated April 14, 2016, was “issued”. The McRoberts Report has 3 sections: the company’s file (summarized in a 4-page narrative citing 15 attachments), CARM, and timely assignment completion. The termination letter did not cite timely assignment completion. Termination grounds related to CARM were withdrawn at the hearing.\n\nOn April 19, 2016, the grievor’s counsel received the first details of the allegations against her, including harassment allegations that were ultimately determined unfounded and performance allegations on which the employer did not rely in its termination letter. Included with the letter was the chronology of overdue tasks that were attached to the McRoberts Report. She had never before seen the McRoberts Report allegations, and she had learned of the harassment allegations in her one brief call with Mr. Séguin on March 24, 2016, to the surprise of them both; Mr. Séguin had assumed that the grievor must have known of the harassment allegations against her. She was never interviewed about the harassment allegations or with respect to the McRoberts’ Report. Eventually, she received a letter that stated that those allegations were unfounded.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-36", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 86–88", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "She was also surprised by the performance concerns in the McRoberts Report. She already knew that there was an issue with her CARM assignment because she had been told as much at the April 8, 2015, meeting with Mr. Wex, but this was the first time she heard about issues related to the company’s file. She did not believe that she had mishandled the file, and she did not know what had happened to the file after she left. For her, the McRoberts Report was hurtful and gut-wrenching. She believes that it is fortunate that she already had professional support in place by that time, given the personal impact that she experienced.\n\nSometime after a July 2016 letter, from the grievor’s legal counsel to the CBSA, the grievor met with the CBSA’s general counsel and the vice-president of Human Resources at the offices of her legal counsel. At several points before her employment was terminated, she asked to meet with the CBSA’s president, a request which was never granted. She testified that even at this late stage, she had hope that if she could tell her side of the story, she would be given a fair hearing, and her statements would be considered.\n\nThe grievor was terminated on March 12, 2018, after having been on leave with pay for nearly three years (since April 8, 2015). Mr. Ossowski testified that her failings on the company’s file were as follows: · she was the responsible executive when “$25 million” in duties were lost; · although there was more than enough evidence to send the “assessment”, she persisted in asking more questions; · many of her files were not properly managed; and · she did not trust her staff and had poor communications skills.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-37", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 89–91", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Ossowski indicated that the grievor dug in, to “rag the puck” (a hockey metaphor connoting delay). In his view, it was clear to anyone what the imported product was and how it should be classified. She should have relied on the team, given the amount of money owing. Instead, she chose to do nothing. There was a lack of communication with her superiors and gross negligence.\n\nMr. Ossowski understood that the staff had distrusted and feared the grievor. He felt that it was reasonable to infer that the stalling on the file was deliberate. He cited the reputational impact for the CBSA as well as the impact on the company and the lack of a level playing field within this commercial sector generally. He understood that there was a pattern of non-responsive behaviour that he stated was reflected in her performance assessments. Whether or not the harassment case was founded, as far as he was concerned, it was clear that the grievor did not absorb feedback well on any of these issues. No examples of feedback on the company’s file, or any file, dating from the period before she left the workplace were provided by Mr. Ossowski; nor were such examples provided by any other witness.\n\nAccording to Mr. Ossowski, there was no possibility of remorse or rehabilitation; the grievor had already been given opportunities to change, including the reorganization of the TPD and the “fresh start” at CARM, but she demonstrated neither self-awareness nor self-reflection, despite “receiving feedback many times.” Mr. Ossowski noted that her performance appraisals had dropped when she became an EX-02. Her years of service were considered but given what he described as the insubordination on the CARM file, as well as the bullying and the aggressive leadership style, termination was appropriate.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-38", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 92–94", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Ossowski relied on what he called “the McRoberts Investigation” (which he described as “appropriate and thorough”) and the grievor’s response when he made the decision to terminate her, as well as briefings from his legal team. He admitted to having no firsthand knowledge of the following: · why the merger occurred and what, if anything, was said to the grievor about her performance at that time; · who directed the FGU or the grievor’s role in relation to FGU work or whether the FGU had told her that it was not following her directions; · the veracity of the harassment allegations or whether harassment concerns were shared with the grievor before the harassment report was issued.\n\nMr. Ossowski was unclear on why the company’s file was flagged for verification, what position the FGU had taken, and how or why the grievor had become involved. He offered no comment or explanation about the lack of any disciplinary consequences for Mr. McRoberts and Ms. Ardito-Toffolo, despite the fact that between January and November 2015, they also did not take actions to issue the briefing note, and despite the fact that the majority of the $26 million of lost duties related to periods after the grievor had been transferred to CARM.\n\nMr. Ossowski admitted that the grievor’s termination was based on both the CARM incident and the handling of the company’s file and that he considered the other allegations in the McRoberts Report, as well as the harassment allegations. He did not recall whether he was aware when the grievor was terminated that the harassment allegations had been determined unfounded. He admitted to knowing that she was not subjected to a performance plan but maintained nonetheless that there were performance issues with her.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-39", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 95–97", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Ossowski indicated that he was unaware that the grievor was not interviewed in the McRoberts Investigation. He said that if Mr. McRoberts and the grievor disagreed, he preferred Mr. McRoberts’ version, indicating that others agreed with Mr. McRoberts, so he assumed that Mr. McRoberts’ opinion must have been correct. He was unaware that Mr. McRoberts had not written the McRoberts Report. He also did not know that the consultant did not have access to the grievor’s notes and emails. Mr. Ossowski testified that he never saw the July 15, 2016, letter from the grievor’s counsel asking to meet with him and that he remained unaware of that request. He was further unaware that she was told that this request had been denied.\n\nThe grievor testified that she felt completely blindsided by the events that occurred during this entire period, starting with being sent home in April 2014. Starting at that time, she sat at home and thought about what she might have done differently, with no contact with former colleagues who had been her friends. She spent a long and very lonely year waiting for the allegations to arrive. She felt isolated and demoralized. As the months and then years of wondering and waiting dragged on, and ultimately lead to her termination, she relied on professional help to get through what became “an extremely dark period” in her life.\n\nHer life had been largely centred on her work, and her CBSA career mattered deeply to her. She continues to experience difficulties with self-confidence. She second-guesses herself and struggles to trust others. The fear that what she experienced may recur remains with her and continues to affect her in the workplace; she described it as an unreasonable level of paranoia.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-40", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 98–100", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor has also experienced a sense of loss. She had progressed steadily, had won awards, and had been selected for special programs. She had remaining goals and ambitions that she states she is now unlikely to attain; as she put it, due to the lost years, “the runway is too short”. She described all those impacts as cutting deep and lasting long. She has since found new employment in the federal public service. Her job search was impeded by the fact that she was forthright that her CBSA employment had been terminated.\n\nNo one other than the grievor was disciplined in relation to the company’s file. Mr. McRoberts had what he described as “not the most pleasant meeting of my career” with the CBSA’s president and others, in the wake of the completion of the company’s file. When asked for details of this meeting, Mr. McRoberts replied with this: “I don’t want to get into it because of political issues”, and offered only that they talked about ensuring that timelines were met.\n\nThe employer has proven serious misconduct warranting the grievor’s termination. Alternatively, a lengthy unpaid suspension would be appropriate. There is no basis for aggravated or punitive damages. The benefits flowing from reinstatement will suffice if reinstatement is ordered.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-41", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 101–103", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor was not a long-term executive. Her 2013-2014 performance review set out people management and trade transformation as growth areas. The employer’s position is that the 2013-2014 “succeeded minus” rating reflected her performance. Mr. McRoberts’ testimony was that the new management model came about to reduce her responsibility, in part due to performance problems, such as people management. Her emails to staff were sometimes terse, as seen in her comment that “… staff need to do the actual work …”, and in her occasional use of capital letters. Rejecting staff recommendations was part and parcel of these poor communication practices. These performance difficulties contributed to missed deadlines. As emails entered in evidence set out, she was repeatedly reminded about deadlines, starting in 2014.\n\nThe entire situation could have been avoided in 2013 after the company was told to provide information about the manufacturing process. It should have been motivated to provide any information that would stop the reclassification, to avoid duties. If evidence existed that could have convinced the CBSA, the company would and should have provided it. The grievor failed to turn her mind to this.\n\nIn September 2013, Mr. Pezoulas told the grievor that the company’s information did not change the reclassification. He was well aware of the file. He wanted the final verification decision to be issued; he said that the company could always appeal it. The grievor wanted to wait for more complete manufacturing process information, but the U.S. manufacturers would not voluntarily share that information. At that point, the grievor should have relied on the internal recommendation and accepted it.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-42", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 104–105", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "From January 2014 onwards, the company appeared on a weekly BF system. Ms. Bartlett, a dairy product specialist, stated that by early 2014, when the new lab results were in, even if Dr. Hill was right about the fat globules separating in manufacturing, it would not have affected the reclassification. At that point, the briefing note should have been sent. There was no reason to wait. This is the second point at which the grievor continued to ask for inconsequential information. The only hope for that information — that a U.S. manufacturer might open its premises to the CBSA — was unrealistic. On February 28, 2014, Ms. Leblanc sent the grievor a draft briefing note. This was yet another chance to issue the verification decision. The decision to chase unneeded information without a follow-up was out of step with the grievor’s executive role. Seeking more information was an error in judgment.\n\nThe grievor was disingenuous or careless about the information that she gave Mr. McRoberts from January to November 2014. In November 2014, she asked Ms. Gilbert and Mr. Riel if the CBSA had ever closed the company’s file, implying that she was unaware of the file’s status. Even so, she continued to act as if the file was on track, and she was just awaiting more information. She should have been aware that the four-year deadline was approaching. It should have been clear to her that a decision had to be issued without further delay. A good file that allowed for the full recapture of duties would have been better than a perfect file that missed the deadline for that recapture.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-43", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 106–109", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In her testimony, the grievor said that she wanted to test the veracity of the information that had been received. This was a shift from what she said to the FGU at the time of the events in question. It impacts her reliability and judgment; asking for information that one does not have and verifying information that one has are very different things.\n\nBy the time the grievor went to CARM, the company’s file had been her responsibility for two years. She should have issued the briefing note before she left. She is responsible for all losses up to the verification decision date because her inaction set the stage for the losses that occurred in the months after she left for CARM. Mr. McRoberts should not have had to pick up the file. He was not a trade expert. He was not part of discussions with Ms. Leblanc or the company. The grievor had the leadership role and therefore is responsible, as noted.\n\nAs for why it took about 10 months after the grievor left to issue the verification decision, Mr. McRoberts said that the file had to be rebuilt and that the timelines were impacted because she had left other files in disarray. Although her file was available to others, they could not just pick up where she left off.\n\nThe McRoberts Report was not issued until about a year after the grievor left because the verification decision was not completed until November 2015. The employer could not know the scope of the damage until then. Mere months after the company’s file was completed in November 2015, contact was made with Mr. Séguin.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-44", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 110–112", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer can assess conduct in context and against a reasonable standard. In this case, the context and standard were provided by the Customs Act (R.S.C., 1985, c. 1 (2nd Supp.)) and the employer’s Reassessment Policy, which states that an importer’s obligation to correct duties for imported goods ends four years after importation. In the absence of a precisely defined service standard, common sense applies. The grievor’s lack of accountability and the way she tried to shift the blame to others are both of concern.\n\nFew labour precedents address gross negligence, which is the applicable principle in this case. Hildebrand v. Fox, 2008 BCCA 434, a common law action for negligence that arose in an employment context, reminds that when misconduct lacks conscious wrongdoing, gross negligence may still be found in departures from normal standards of conduct. Such departures can include loss of life, serious injuries, or grave damage. Stevenson v. First Nations University of Canada Inc., 2015 SKQB 122, which involved multiple instances of criminality, fraud, and financial impropriety by a person in a position of leadership and trust, reinforces the same concepts. The misconduct in that case raised questions about honesty; the same questions arise in this case. The issue is whether the grievor’s actions were a marked departure from the norm.\n\nThe concept of careless work is akin to gross negligence. If damage or disruption occurs in an employee’s domain, the employee must explain the causes. In this case, volition, recklessness, and negligence all supported imposing a severe penalty. A profound lack of judgment is the equivalent of gross negligence.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-45", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 113–115", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor’s failures on the company’s file included: · disregarding the FGU’s fall 2013 and winter 2014 recommendations and continuing to attempt to verify the manufacturing process; · placing too much weight on the company’s opinion and accepting the company’s arguments when the CBSA’s subject matter experts disagreed; · failing to follow up on her request for more information or to establish next steps; and · not being accountable, given the sums at stake, and taking no steps to accelerate the process, including while she was at CARM and on leave.\n\nEven if the grievor was not fully responsible, she was sufficiently responsible to warrant her termination. Her testimony shifted to minimize her responsibility, which impacts her credibility. The grievor tried to shift accountability for follow-ups to Mr. Riel. She said that she had faith in her staff but did not accept their recommendations. She did not know if they had closed the company’s file, despite telling Mr. McRoberts that it was on track. Mr. Pezoulas, Ms. Bartlett, Ms. Leblanc, Mr. Riel, and Mr. McRoberts all agreed that nothing else had to be done on the file.\n\nAlthough Mr. McRoberts knew that a deadline was approaching, he did not know that it would not be met, based on the grievor’s assurances. He believed that the company’s file would be completed in time. She did not provide him with details on the file. She was the respected trade expert. He did not understand the risks until he was fully briefed. He did not warn or counsel her because he believed that she was in control of the work. Her lack of forthrightness, minimization, unacceptable lack of follow-up, and failure to accept responsibility irrevocably broke the bond of trust.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-46", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 116–118", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Honda Canada Inc. v. Keays, 2008 SCC 39 at paragraph 59, (“Honda”) notes that aggravated damages apply for foreseeable mental distress due to the manner of the termination. These damages can also serve to punish malicious or egregious conduct, which must stand on its own as an independent actionable wrong for punitive damages to apply (see Whiten v. Pilot Insurance Co., 2002 SCC 18 at paras. 79, 82, and 83). Punitive damages are awarded to punish unfairness and bad faith and conduct so malicious and outrageous that it deserves punishment (see Honda at paras. 56, 57, and 62; and Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 at para. 63).\n\nSpruce Hollow Heavy Haul Ltd. v. Madil, 2015 FC 1182 (“Spruce Hollow”), sets out the test for aggravated and punitive damages at paragraphs 81, 82 and 119 to 121. Termination is inherently unpleasant. This predictable unpleasantness is not a basis for aggravated or punitive damages. The grievor’s distress was within the ambit of what is predictable on termination. Although medical evidence is not a precondition for aggravated damages, more is required than the grievor demonstrated, including an itemization of the harms that she suffered.\n\nAn award of punitive damages must contemplate the lowest amount that is rationally required for deterrence. Compensatory damages can also punish an employer. Proportionality links considerations of compensatory, aggravated, and punitive damages (see Whiten, at para. 74 and 109 to 119; Greater Toronto Airports Authority v. Public Service Alliance Canada Local 004, 2011 ONSC 487 at paras. 125 to 127).", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-47", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 119–120", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor did not point to any identifiable prejudice. She was on paid leave while she was off work. There are reasons that the disciplinary process took a full year. There is no evidence that her ability to reply to the employer’s allegations was impaired and no evidence that it prolonged the investigation. There were lengthy settlement discussions.\n\nThe termination closely followed the end of the harassment investigation. The facts in this case are distinguishable from those in other aggravated- and punitive-damages cases. In Lyons v. Deputy Head (Correctional Service of Canada), 2022 FPSLREB 95, at paragraphs 12 to 14, the Board found deliberate intent by the employer to prejudice the grievor by misleading the Board. Employer conduct was the primary cause of severe symptoms of ill health as well as an inability to return to work. None of that applies in this case. Robitaille v. Deputy Head (Department of Transport), 2010 PSLRB 70 (“Robitaille PSLRB”) (upheld in 2011 FC 1218 (“Robitaille”)); and Greater Toronto Airports Authority are similarly distinguishable.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-48", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 121–122", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer cited the following cases in support of its position: Alberta Treasury Branches v. Cam Holdings LP, 2016 ABQB 33; Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107; Basra v. Canada (Attorney General), 2010 FCA 24; Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419; Brazeau v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 62; D’Cunha v. Deputy Head (Correctional Service of Canada), 2019 FPSLREB 78; Fidler; Finlay v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 59; Gannon v. Treasury Board (National Defence), 2002 PSSRB 32 (overturned on other grounds in 2004 FCA 417); Greater Toronto Airports Authority; Hildebrand; Honda; Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA); Spruce Hollow; Robitaille PSLRB); Robitaille; Stevenson; Stokaluk v. Deputy Head (Canada Border Services Agency), 2015 PSLREB 24; Viner v. Deputy Head (Department of Health), 2022 FPSLREB 74; Whiten; and Brown and Beatty, Canadian Labour Arbitration, 5th ed. (2019) at ch. 7, s. 36.\n\nThe employer has not proven misconduct by the grievor, who was never counselled, warned, or disciplined or told that she was mishandling the company’s file. The Touchette v. Deputy Head (Canada Border Services Agency), 2019 FPSLREB 72, decision stresses that no deference is owed to an employer’s decision or investigation process, even when an investigation occurred. The grievor should be reinstated with all benefits, with aggravated and punitive damages for the employer’s callous and egregious behaviour. If the Board finds otherwise, at most, what should apply is a short suspension, given the multiple mitigating factors of long service, no discipline, an isolated incident, and strong performance.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-49", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 123–125", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer’s disciplinary process violated the fundamental principles of just-cause discipline. Ontario Store Fixtures v. C.J.A., Loc. 1072 (Phinn), 1993 CanLII 16809 (ON LA), emphasizes the importance of progressive discipline (at paras. 29 and 30). Timely discipline is essential; lost documents and faded memories may result otherwise, and the corrective function is lost. When other implicated employees receive no penalty for actions attracting discipline, the discriminatory result is inconsistent with just cause.\n\nAn employer is held strictly to its disciplinary grounds. The termination letter states that the grievor’s failure to act resulted in a “$25 million loss” and cites gross negligence and lack of judgment on her part. Mr. Ossowski testified that the termination was based not just on the company’s file but also on the grievor’s poor performance and CARM issues, as well the harassment allegations. Some of these factors were inappropriate for him to even consider.\n\nBecause gross negligence requires a marked departure from the norm, it is important to understand the TAPD’s normal practices. The grievor’s role did not include file work, from which she was two managerial levels removed. She provided leadership and ensured that sensitive files were properly handled. The day-to-day case work was done by Ms. Bartlett, who reported to Mr. Pezoulas or Mr. Grant. When pressed, Ms. Bartlett agreed that certain considerations did not factor into her work, such as a political or an economic impact. These considerations were addressed at the executive level.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-50", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 126–128", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In this context, was the grievor’s behaviour with respect to the company’s file a marked departure from the norm? She was updated and provided guidance, as was typical on high-impact files. She discussed the file at bilats with Ms. Leblanc and told Ms. Leblanc that the file required more work, to ensure due diligence. She asked Ms. Leblanc to direct the staff to carry out that work. This was consistent with her role. She expected the team to carry out her directions and to address her concerns. There was no shift in what she was looking for at any point in the file’s history.\n\nMs. Leblanc had minimal recollection of her conversations in 2014 with the grievor or of the nature of the follow-up directions or what she did with them. Mr. Pezoulas recalled that what he had to do was secure a fuller response from the manufacturers and hold a team meeting. Ms. Bartlett knew that the grievor wanted more information. Ms. Bartlett and Mr. Pezoulas had more meetings; Ms. Bartlett testified that Mr. Pezoulas and Mr. Trudel looked into the possibility of a site visit. Ms. Bartlett did not look into other options for pursuing the manufacturing process.\n\nWhen it was put to Ms. Bartlett that in February 2014, she understood that she had been told to do more work to close the manufacturing issue, she acknowledged that this was true. Despite all the evidence of follow-ups and bilat meetings variously involving the grievor, Ms. Gilbert, Mr. McRoberts, and Mr. Riel, there is no evidence that the FGU ceased work on the company’s file. As importantly, the grievor was never told that the FGU had decided to stop working on the file.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-51", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 129–130", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "No evidence supports a mishandling of the file or gross negligence. Mr. Grant worked on the file from February 2014 onwards. He was not called as a witness. Mr. Loynachan replaced Ms. Leblanc in June 2014. He met with the grievor and Mr. McRoberts from that point onwards. He did not testify. Mr. Wex supposedly said that the grievor had been given feedback and opportunities to improve. He did not testify, and her performance ratings do not align with that narrative. Nothing communicated to her orally suggested poor performance; nor does the evidence indicate that Mr. McRoberts performance-tracked her. She was clear; the company’s files were never mentioned in these reviews. The employer could have called witnesses with direct knowledge of performance problems or file-management issues but did not.\n\nThe grievor testified that she gave Mr. McRoberts a full briefing when he arrived at the TAPD. They met regularly, to discuss the BFs managed by Ms. Gilbert and Mr. Riel. This was a standard practice. The grievor believed that the necessary steps to advance the file were occurring and that Ms. Gilbert and Mr. Riel were promoting its progress. The grievor was waiting for a response, which would have allowed her to recommend that Mr. McRoberts sign the briefing note. The choice of when to sign off always sat with him; he could have signed off at any time. He agreed that the file was highly sensitive and that it had to be fully vetted. Like her, he knew that the verification decision had to be well supported and that the company was likely to litigate. He shied away from signing off on the briefing note without her approval. But that is what a senior executive is supposed to do; they are supposed to gauge risks and make the final call.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-52", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 131–133", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. McRoberts had conversations with the grievor throughout 2014. He could not recall the briefings on the company’s file, and he had no clear understanding of what she was waiting for, but he did recall directions to the FGU to do more work. This does not support an argument that she misrepresented the file’s status. Sometime in the fall of 2014, Mr. McRoberts learned about the four-year rule and then did nothing whatsoever with this critical information. He gave no directions, specific or otherwise, to the grievor; nor is there evidence that he asked her about the deadline. At some point in 2014, Mr. Pezoulas raised concerns with him about finishing the file. Yet, there is no evidence that Mr. McRoberts followed up with the grievor after that. He was content to let things play out.\n\nAlthough Mr. McRoberts already knew that duties would be lost if the decision was not issued by January 1, 2015, he took almost 10 additional months after the grievor’s departure to send the briefing note. Like her, he wanted a complete, defensible file. He said that Ms. Ardito-Toffolo would know what work was accomplished in those 10 months; the employer chose not to compel her testimony.\n\nMr. Ossowski said that the lost duties were a major factor in the termination. They almost all resulted from the months during which Mr. McRoberts waited and the grievor was not involved with the file. Employer witnesses were asked if an earlier decision would have resulted in a fuller duties recapture. This question was put to Mr. Pezoulas, Mr. McRoberts, and Ms. Bartlett; they all replied in the affirmative. Mr. McRoberts let the duties slip away. Despite this, the employer attributes responsibility for the lost duties to the grievor alone.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-53", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 134–135", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "There was little evidence on the disciplinary process. On March 31, 2015, the grievor had a positive performance meeting; the company’s file was not mentioned, and at that point, her involvement with the file had already ended. A week later, she was called to a meeting by Mr. Wex, and due to issues related to CARM, she was sent home. Mr. Wex gave her no details, explanation, or additional feedback. She left the meeting in shock. In summer 2015, she received a “does not meet expectations” performance evaluation, with no explanation, and despite the positive March performance meeting that took place just before she was sent home. In September 2015, she received a package vaguely alleging misconduct and performance issues. This was the first time any problem other than CARM was brought to her attention.\n\nDespite securing legal counsel and seeking information, the grievor heard nothing more until April 14, 2016, when she was sent two final reports. The first included multiple harassment allegations that she had never seen before. The second was the McRoberts Report.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-54", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 136–137", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The McRoberts Report is not an investigation report. Mr. McRoberts told Mr. Séguin at the outset that the grievor had lost the employer millions of dollars. Mr. Séguin was handed documents selected by Mr. McRoberts and was told to put them in order and to turn them into a narrative. He called employees if their testimony appeared relevant from the documents that he had been handed or if a document was unclear. He did not interview the grievor, Mr. Loynachan, Mr. Hill, Mr. Wex, or Mr. Grant. Mr. Séguin did not look at the whole file; nor did he look at the grievor’s file. Both were highly relevant. It was not a fair or investigative process, but nonetheless, Mr. Ossowski relied on it, mistakenly believing that it was an investigation. Basing a conclusion on an improper process displays callous disregard, which was exacerbated by undue delay. This was a breach of procedural fairness.\n\nWhen the two reports were dropped on the grievor in April 2016, she was blindsided. She had just spent a long, lonely year speculating, wondering, and worrying. Reading the harassment allegations and the McRoberts Report was gut-wrenching. Her first input was her legal counsel’s written response to the completed report. Mr. Ossowski dismissed it out of hand because it did not match the McRoberts Report. When the grievor asked to meet with Mr. Ossowski, her request was refused. She was given one chance to meet with the CBSA’s Human Resources branch. Six weeks later, the termination letter cited harassment allegations because Mr. Ossowski said they were “serious”, even though they had already been dismissed.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-55", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 138–139", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "For the grievor, this had huge career, emotional, and financial impacts. The impact of the entire process has cut deep. She now second-guesses everything, has trust issues, and worries that a similar situation might recur. She lacks self-confidence. Given her age, the lost years mean that certain executive opportunities she might once have enjoyed will never be available to her.\n\nNegligence is not typically a labour law concept. In Schenkman v. Treasury Board (Public Works and Government Services Canada), 2002 PSSRB 62, the grievor was terminated for gross negligence. The grievance was allowed because there was insufficient evidence to substantiate the allegations. In Manitoba v. Manitoba Government and General Employees’ Union, [2002] M.G.A.D. No. 56 (QL), a 30-year employee was terminated due to a file backlog, delay, and failure to close files. The employer had tried suspensions and performance management before turning to termination. The arbitrator noted that the grievor gave unchallenged evidence that his explanations were not unreasonable and that failing to keep up with the workload alone does not amount to misconduct. The events required for performance-related discipline did not occur in the file.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-56", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 140–141", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Pugh v. Deputy Head (Department of National Defence), 2013 PSLRB 123, concerned two suspensions. There was a written document with performance expectations, but the performance expectations were unreasonable. The employer did not consider the grievor’s explanation. Concern was expressed in the decision about assumptions and hearsay evidence. In Saint-Amour v. Treasury Board (Fisheries and Oceans), PSSRB File No. 166-02-27502 (19971104), the grievor was suspended due to negligence. The adjudicator noted that errors in judgment do not necessarily warrant disciplinary action. As for negligence, the case discussed an exercise of discretion in a way that the employer did not ultimately prefer. Matters cannot be assessed with 20-20 hindsight; nor should they be subjected to speculation.\n\nGross negligence requires a marked departure from normal standards, typically including wanton, wilful conduct and an utter lack of care. The standards must be clear and reasonable. Cases referenced by the employer set out how grave the departure from normal standards must be. Brazeau involved fraud and concealment. Stokaluk involved criminal activity. Gannon involved deliberate lies about qualifications. Stevenson involved fraud and dishonest conduct. None of this applies in this case. The grievor’s conduct was in line with standard CBSA practices and was within the reasonable exercise of her discretion.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-57", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 142–143", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Multiple considerations had to be balanced with respect to the company’s file. The grievor fulfilled her oversight role and took areas of concern seriously. She was briefed and discussed the file. She gave direction and trusted staff to do the file work. She used the standard follow-up process. She ensured that the briefing note would be ready as soon as new information was received. When her personal file disappeared, she followed up immediately. She was never told that work on the file had stopped and had no way of knowing if her directions were being ignored.\n\nOne indicator that her approach was reasonable is the fact that Mr. McRoberts and Ms. Ardito-Toffolo essentially took the same approach after the grievor ceased her involvement with the file. Had it been essential to issue the verification decision immediately and had the file been ready to advance since 2013, as alleged, Mr. McRoberts could have forwarded the briefing note immediately, and the lost duties would have been almost entirely avoided. In this sense, the penalty that the grievor received was discriminatory and inconsistent. This also runs counter to the employer’s argument that the grievor’s approach was a marked departure from normal procedures. It is more logical to conclude that the file was not yet complete in January of 2015 and that it was more important to be thorough and accurate than to rush it through. No evidence set out that the grievor’s actions cost taxpayers millions of dollars, which is essential to the case against her.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-58", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 144–145", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Before an employer contemplates discipline based on careless work, it must provide the employee with counseling and warnings. In this case, there were none. The grievor was left to handle the file as she thought best, which is what she did, and she did so transparently. Her actions were consistent with her level of responsibility and were informed by appropriate concerns. The employer knew what she was waiting for and knew what she was telling the team and gave every appearance that it all was acceptable. If it was dissatisfied with her work, it could have counselled her through warnings or directions to handle the file differently. Instead, over multiple rounds of performance reviews, the company’s file was never raised. The employer cannot now state that her actions on the company’s file constituted misconduct.\n\nRecently, in Lyons, the Board canvassed issues related to aggravated and punitive damages. The facts in this case point to a lesser amount of damages than occurred in Lyons, but the principles are the same. The principles set out in Honda apply, based on the employer’s unfair, bad-faith, and unduly insensitive conduct, which denied the grievor’s right to natural justice. Lyons speaks of jumping to conclusions and relying on serious but ultimately unfounded allegations. It also speaks of impugned motives and intent and months and years of disciplinary process.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-59", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 146–148", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Lyons also discusses the harm caused by employer actions. In cases without medical evidence, the range of damages is generally in the order of $25 000 to $35 000. These damages cover frustration, hurt feelings, and stress rather than medical issues. Aggravated damages related to physical and psychological exhaustion were assessed at $20 000 in Mattalah v. Treasury Board (Department of Foreign Affairs, Trade and Development), 2018 FPSLREB 13.\n\nThe wrongful action in this case was the unfair, insensitive, and bad-faith approach to discipline. Procedural fairness was lacking in the entire process. The employer threw every allegation it could muster at the grievor, without supporting facts, and made personal attacks about bullying and abuse. Only one of those allegations is before the Board. The termination was based on a narrative report, which was driven by a predetermined conclusion. The grievor’s feedback was never seriously considered. She was terminated in part based on unfounded harassment allegations and bald assertions that were repeated at the hearing. Without foundation, Mr. Ossowski called her behaviour deliberate; Mr. McRoberts called it sabotage.\n\nThe grievor detailed the harms that these actions caused. Are these harms worse than what is predictable in the wake of a typical termination? When she was first sent home, she was devastated; she was blindsided, lonely, and isolated. She resorted to counselling. She is still working to regain trust, as happened in the Mattalah case. The $25 000 to $35 000 range for aggravated damages is appropriate in this case.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-60", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "para 149", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Had the employer really wanted to understand the company’s file, it could have properly investigated the conduct and actions of everyone involved. The only logical inference to be drawn from the employer’s course of action is that it already knew the answer it wanted. This is clear from how the McRoberts Report was prepared. Unlike the Robitaille case, the grievor in this case was never even interviewed. The failure to undertake an investigation and including harassment allegations — which the employer said were unfounded — among the termination grounds deserves censure. This sophisticated employer knows the procedures for a just-cause termination and chose not to follow them. This cut to the core of the grievor’s identity. Therefore, the appropriate amount of punitive damages is $50 000 to $75 000. She requested that the Board remain seized of any award, and she seeks salary, performance pay, interest, vacation and severance, benefits, sick leave, and out-of-pocket expenses for the buyback of pensionable time post-termination.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-61", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 150–152", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor relied on these authorities: Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1976] B.C.L.R.B.D. No. 98 (QL); Touchette; Ontario Store Fixtures Inc.; Brown and Beatty, Canadian Labour Arbitration, 5th ed., at paragraphs 7:7 and 7:70; Aerocide Dispensers Ltd. v. United Steelworkers of America, [1965] O.L.A.A. No. 1 (QL); Schenkman; Manitoba; Pugh; Saint-Amour; Beaulne v. Treasury Board (Transport Canada), [1997] C.P.S.S.R.B. No. 100 (QL); Lyons; Mattalah; Robitaille PSLRB; Robitaille; Saadati v. Moorhead, [2017] 1 S.C.R. 543; Tipple v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 110, Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSLRB 83; Knight v. Parrish & Heinbecker, Ltd., [2006] C.L.A.D. No. 293 (QL); and Paquette v. TeraGo Networks Inc., 2016 ONCA 618.\n\nThe allegation of discriminatory discipline as a mitigating factor, giving Mr. McRoberts co-responsibility with regard to the company’s file, is unsupported by the evidence. Mr. McRoberts’ role was to operationalize the merger. His focus was on operational issues such as people management, stakeholder relations and financial matters. In this context, he wanted to leverage the grievor’s knowledge and expertise. He never said that he was jointly responsible for files. No evidence set out that Mr. McRoberts was as responsible as the grievor was for the losses that occurred. The grievor was the responsible manager on the company’s file.\n\nThe force with which Mr. McRoberts and Mr. Ossowski stated that the grievor was a bully was overstated. Mr. Ossowski did acknowledge in his testimony that the harassment allegations were ultimately dropped.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-62", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 153–156", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor referred in evidence to the company’s file being on her to-do list. But at each 2014 BF meeting, the file’s status remained the same. It is clear from the November 2014 emails that neither Mr. Riel nor Ms. Gilbert had heard of the request for more manufacturer information, so the grievor then explained to Mr. Riel what she had requested. If she had already told him, why would she have had to explain it again? As for the grievor’s assertion that no one made her aware that the information that she sought on the files was not coming, there is insufficient evidence to support it. The Board never heard from Mr. Grant at the hearing, to prove that no one made her aware. The grievor should have relied on Ms. Bartlett and trusted her expertise.\n\nIt is beyond the Board’s jurisdiction to review matters arising in the disciplinary investigation which were not advanced at the hearing as grounds for discipline.\n\nProgressive discipline is not appropriate in this instance because such discipline should only be considered where the misconduct is insufficient to warrant termination. Here, the termination of employment was warranted.\n\nDiscipline and termination of employment made under the authority of s. 12(1) of the Financial Administration Act (R.S.C., 1985, c. F-11) must be for cause. The test consistently applied in disciplinary and termination matters before the Board was established in Wm. Scott. When applying that test, I must determine whether, on the balance of probabilities, the employer has proven the misconduct relied on for discipline. If the misconduct is proven, I must decide whether the discipline was excessive and, if so, what penalty is appropriate.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-63", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 157–159", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grounds for discipline are that the grievor: … … failed to issue, or cause to be issued, the final verification report relating to the tariff classification of certain products imported by [the company] in a timely manner, despite it being your responsibility to do so, resulting in a loss of duties in excess of $25,000,000 as a result of the expiration of statutory time limits on recovery …. …\n\nThe termination letter also cites gross negligence, serious and significant lack of judgment and insubordination. At the hearing, the employer clarified that the insubordination grounds related only to the CARM file and were unrelated to the allegations about the company’s file. As mentioned, the termination grounds related to CARM were withdrawn at the hearing.\n\nTypically, culpable failures to comply with workplace orders are characterized as insubordination (see Chauvin v. Deputy Head (Offices of the Information and Privacy Commissioners of Canada), 2012 PSLRB 66; and Samson v. Deputy Head (Department of Justice), 2019 FPSLREB 40). In this case, the employer argues that the grievor’s gross negligence and lack of judgment led to avoidable losses in the company’s file.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-64", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "para 160", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Concepts of gross negligence and lack of judgment arise infrequently in labour and employment law. As the Stevenson case noted, at paragraph 33, negligence “… is not the usual language that would be used to catch the many obligations that exist, and the wide range of breaches which might arise, in an employment relationship …”. Stevenson considered the term “gross negligence of duty” only because it appeared in the employment contract at issue as a potential ground of dismissal. Both parties’ arguments, citing case law, noted that negligence may be found in a marked departure from the norm. Stevenson also notes that “the ‘marked departure’ test” (Stevenson, at para. 35) has been referred to with approval in multiple cases. When deciding whether there had been gross negligence in the context of employment, the Court in Stevenson stated as follows at paragraph 38: [38] … The relevant considerations would properly include not only the extent to which [the employee] failed to comply with the duty at issue, but the potential impact of that failure, which in turns [sic] affects the standard of performance or conduct that applies to the actions at issue.…", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-65", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 161–162", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "What little case law exists informs that a finding of employee misconduct based on negligence requires evidence of a marked departure from the normal standards of workplace conduct. This requirement is captured in the first of the three relevant Stevenson considerations, “… the extent to which [the employee] failed to comply with the duty at issue …”. Many of the cases referencing negligence or related concepts, also involved deceit, dishonesty, fraud, or criminality. For example, in finding that the respondent in Stevenson had been negligent, the Court cited fraud, falsification, and unauthorized expenditures that directly benefitted the plaintiff. Similar issues arose in Beaulne (which cites negligence and lack of judgement), and in Gannon and Stokaluk (both of which cite lack of judgment, but not negligence). Other indicators of negligence include a lack of care and wanton, reckless, or willful behaviour.\n\nWorkplace standards must be clear and reasonable. An employee’s exercise of judgement when following the standards need not be perfect; nor should the reasonable exercise of employee discretion be censured (see St. Amour, at pp. 12). As in all discipline cases, even when a calamity or disturbance has occurred on the employee’s “watch”, the employer still has the burden of proving that the employee did something culpable in the circumstances (see Pugh, at para. 171, Schenkman, at paras. 57 to 59). Only if this can be established, as noted in the Canadian Labour Arbitration passages cited by the employer, may the employee then be called upon to explain why what occurred was not caused by their misconduct. If the employee’s explanation is reasonable and unchallenged, negligence will not be proven (see Manitoba, at para. 29).", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-66", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 163–165", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Accordingly, when determining whether the employer established misconduct based on negligence, I must consider these questions: 1) What workplace standards applied to the grievor’s responsibilities on the company’s file? 2) Did the grievor fail to comply with these standards? 3) If the grievor failed to comply, was the failure such a marked departure from workplace standards of conduct that it constituted misconduct?\n\nThe answer to this question requires a consideration of what the grievor’s work on the company’s file entailed. The grievor was not responsible for the day-to-day file work on FGU files, including the company’s file. The only evidence that suggested otherwise came from Mr. McRoberts. His suggestion that she led or performed the day-to-day work on the company’s file does not align with any of the other evidence. She declined a meeting on the file’s particulars because she felt that the FGU should have done that work. She was confident that the FGU was carrying out her directions and addressing her concerns. She had been explicit about what she wanted, and she expected her directions to be followed. How they would be followed was up to the FGU’s staff members and their supervisors.\n\nThe grievor’s role with respect to the FGU’s work was to advise and guide the managers who oversaw it; two managerial levels stood between her and the FGU’s line work. Closest to her in the hierarchy were directors such as Ms. Leblanc, Mr. Loynachan, and Ms. Ardito-Toffolo. At the next level were unit managers, such as Mr. Grant and Mr. Pezoulas. Finally, working within the FGU were subject matter experts, such as Ms. Bartlett.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-67", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 166–167", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Although the grievor was not responsible for day-to-day file work, she had considerable discretion over many aspects of the direction of the company’s file. Until Mr. McRoberts arrived, this discretion included the ability to do the following: · decide if changes to the briefing note drafted by the FGU’s staff were needed; · decide if further information was required before finalizing a briefing note; · decide whether to delay sending a briefing note, pending the receipt of additional information; · direct others with respect to outstanding tasks or missing information; and · decide whether to sign a briefing note and forward it to senior CBSA leaders.\n\nMuch of this discretion remained after Mr. McRoberts arrived, but after that, the grievor was no longer the ultimate authority within the TAPD. Her discretionary scope and responsibilities became subject to his direction; she was no longer the ultimate signatory on briefing notes. Although he was not responsible for assessing her performance, multiple emails were adduced in evidence in which he directed her and established expectations that demonstrated their subordinate-superior relationship.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-68", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 168–170", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Some of the standards which applied to these responsibilities can be construed based on the PMAs placed in evidence for the grievor’s roles in the TPD and TAPD. The grievor was appointed to an EX-02 role in the TPD in December 2012. Among many other performance measures, her PMA for the 2011-2012 fiscal year includes references to high quality and consistent policy advice being provided in a timely fashion. Both the 2011-2012 and the 2012-2013 PMAs reference support being provided to regional officers in respect of complex cases, in a cost-efficient manner. The 2012-2013 PMA also references the need to provide quality and timely advice to the president and executive vice-president.\n\nThe employer contends that the grievor’s negligent failure to cause the verification report to be issued in a timely way led to significant financial losses. When considering whether this misconduct has been proven, I must determine whether there were standards in the workplace that would have required her to issue the verification decision so that no (or fewer) losses would have occurred, such that a failure to comply with these standards constituted a marked departure from the norm.\n\nAs previously mentioned, there was no clearly communicated direction or order to the grievor about the company’s file. Despite this, the employer asserts that by looking at BF lists, calendar entries, emails, and the four-year rule, an expectation can be implied that establishes the grievor’s responsibility to avoid any lost duties by finalizing the briefing note needed to complete the company’s file. I am not persuaded by this argument.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-69", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 171–172", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The BF lists and calendar entries reflect standard tracking procedures found in many workplaces. These lists and entries offer little information about what was to be completed or when or by whom. Ms. Gilbert’s July 16, 2014, email listed items requiring the grievor’s attention and included the company’s file. In that email, another briefing note is marked as urgent; the bullet point for the company’s file does not contain an urgent tag. Furthermore, there is no clear direction to complete the company’s file or any of the other files listed, by a certain date. Instead, the email vaguely references “items that would need Anne’s attention.” This cannot be viewed as either an order or an expectation to send the briefing note, which would have triggered the region’s issuance of the verification decision.\n\nMr. McRoberts’ October 10, 2014, email does not align with the employer’s argument that at that time, the grievor should have clearly understood the urgency with respect to the 4-year rule and the company’s file such that her failure to act promptly was negligent in its untimeliness. Nothing in the email reflects any special urgency for the company’s file. The attached to-do list included 24 items. Mr. McRoberts testified that some of the files on the list were ongoing projects for which file closure was not expected.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-70", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 173–174", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "While progress of some sort was clearly expected for each file, and the email provides clear evidence that Mr. McRoberts directed the grievor’s work on multiple files, the level of progress and the tasks to be completed were not specified. The email notes that “Manon [Gilbert] has the context and details for most of the items.” Clearly, some contextualization was required to understand the work expected on the files listed. This context was not clarified at the hearing. Ms. Gilbert is deceased. It is unclear from the email whether the company’s file was expected to be completed in its entirety or whether the email referenced a specific task for the company’s file, such as communicating with the FGU, following up on manufacturer contact plans, or the receipt of the long-awaited information about the manufacturing process.\n\nMr. McRoberts and the grievor differed on the email’s direction for the company’s file. Mr. McRoberts said that the email indicated a requirement for file completion. The grievor said that she understood it to mean that progress should be made on the file. I find the grievor’s testimony about her understanding to be entirely credible. Further I find this to be the most reasonable interpretation of the email’s direction on the company’s file. This finding is consistent both with Mr. McRoberts’ testimony that he believed that the grievor was waiting for more information and his testimony that he trusted her. It is further consistent with the agreed fact that he took no actions on the file after his return, nor did he order the grievor to take any. The October 2014 email is not evidence of an expectation that the grievor was expected to close the file by the date of Mr. McRoberts’ return.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-71", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "para 175", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer argues that there was an implied obligation to complete the file in a way that respected the four-year deadline. The employer’s repeated references to a deadline deserve examination, as this so-called deadline is central to the employer’s argument that the grievor failed to resolve the file in a timely way and that this was a marked departure from workplace standards. However, there was little concrete evidence of what timeliness meant in the context of the company’s file. It is fair to assume that the CBSA wanted to minimize any duties lost. There was credible evidence from Mr. Riel about “pressure” being brought by Mr. McRoberts to advance the file (although Mr. McRoberts himself did not recall this). But it is also clear that there were multifaceted considerations that might have overridden the loss of some retroactive duties. This is particularly relevant, given that when the grievor’s work on the file ended, the lost retroactive duties were still relatively minimal, compared to the losses that ultimately accrued and were attributed to her after her work on the company’s file ended.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-72", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 176–177", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In her testimony, the grievor stated that there is no statutory deadline for a verification decision, and therefore, there was no statutory deadline for the company’s file. The employer characterized this statement as evidence of her failure to handle the file properly. But she was correct. There is no statutory deadline for issuing a verification decision. Rather than imposing a deadline, the Reassessment Policy, which cites the statutory limitations for customs corrections, outlines date-based consequences on retroactive duties. No collection of duties is possible for imports made more than four years before the verification decision is issued. This is a consequence. A consequence is not a deadline.\n\nAn employer can set a deadline for work even if a statute does not. But there were no service standards for the FGU’s advice and support to the regions. Further, as noted above, the employer did not expressly identify a deadline for closing the company’s file. From January 1 until November 17, 2015, the retroactive duties that could have been collected decreased incrementally each time the corresponding 2011 date of one of the company’s imports passed. There is no evidence of an order or direction that no retroactive duties were to be lost, which would have meant a December 31, 2014, deadline; nor is there evidence of a maximum acceptable amount of lost duties, which would have resulted in a deadline sometime in 2015.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-73", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 178–179", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Another difficulty with the employer’s argument that an implied norm or standard arose from the four-year rule is that this standard would have applied also to Mr. McRoberts and perhaps would have placed him under an even greater obligation, given his role in the hierarchy and the fact that nearly all the losses occurred after the grievor’s role on the company’s file ended.\n\nMr. McRoberts admitted that he knew of the four-year rule by sometime in late 2014. In my view, the evidence strongly suggests that he may well have been aware of the four-year rule before that time. Ms. Leblanc briefed him on the file in early 2014. The file arose repeatedly in conversations with several TAPD staff members, including Ms. Leblanc, who briefed the grievor and Mr. McRoberts on the file simultaneously, and as well with Mr. Riel and Ms. Gilbert, based on the testimonies of several witnesses. Mr. Riel remembered clearly that Mr. McRoberts pushed the grievor for information about when the company’s file would be complete when it was discussed in their bilats. It seems highly improbable that the critical four-year rule was never mentioned in these conversations. Further, Mr. McRoberts’ memory on multiple aspects of the company’s file and the TAPD’s structure was vague and selective. Unfortunately, Mr. Grant and Mr. Loynachan, who might have shed more light on discussions of the four-year rule, and McRoberts’ awareness of it, were not called as witnesses.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-74", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 180–181", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Even if I accept Mr. McRoberts’ professed unawareness of the four-year rule until late 2014, it is notable that no actions flow from the awareness that he stated he gained at that time. He did not expressly direct the file closed, to ensure that no duties were lost. Even if I accept the employer’s argument that the October email was a direct order to close the file (which I do not), this does not explain why he did not, as all witnesses who addressed this issue indicated that he easily could have, simply sign the briefing note either before the end of 2014 or after the grievor went to CARM, as would have been expected and necessary had a failure to do so truly amounted to a marked departure from normal workplace standards. No evidence set out that he ever even asked the grievor for more details on the company’s file or to explain or justify her approach. None of this is consistent with the employer’s narrative that she breached a workplace norm or standard, given the undisputed evidence that Mr. McRoberts would have been aware of this breach by, at the very latest, fall 2014.\n\nAt the grievor’s March 2014 performance meeting with Mr. Wex, the company’s file was not even mentioned, although by then, the lost retroactive duties were accruing, as multiple players in the TAPD, including Mr. McRoberts, were well aware. Nothing in these facts suggests that those in a position to direct the grievor found her actions inconsistent with the prevailing workplace standards. It suggests the opposite — her exercise of discretion was consistent with these standards.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-75", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 182–184", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Some of the arguments advanced by the employer amounted to a suggestion that Mr. McRoberts did not issue a direct order on the company’s file because he lacked the understanding to do so; his role was to “operationalize” the merger rather than to understand the TAPD’s or FGU’s work. The employer argues that although Mr. McRoberts could have told the grievor that her approach to the company’s file was no longer acceptable and that the briefing note was to be forwarded immediately, he did not, because he believed her when she held herself out as a trade matters expert. The grievor’s trade expertise was an agreed fact; her 2013-2014 PMA notes, with regard to the grievor, that “[t]he depth of her trade expertise is regularly relied upon by senior management.”\n\nThere are two problems with this line of argument. First, it is impossible to reconcile this total reliance with Mr. McRoberts’ executive role and the clear evidence of his managerial oversight with respect to the grievor. Managers do not take direction from those who are subordinate to them.\n\nThe second problem is more complex. Mr. McRoberts advanced two explanations for his reliance on the grievor. The first was that she encouraged him to rely on her. For example, he said that the reason that he did not move the file forward was that she said that she alone had the knowledge required for the file, “because she knew the partners and the players”.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-76", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 185–186", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "For several reasons, I do not find Mr. McRoberts’ testimony on this credible. Nothing in the grievor’s testimony, or that of others, suggested that her handling of the file required her to know the “partners or players”. Only Mr. McRoberts characterized her approach that way. Furthermore, she wanted the FGU to complete the work, rather than wanting to do it herself. No contemporaneous evidence or testimony at the hearing set out that she held herself out as an expert in dairy science or manufacturing processes — she relied on others for that expertise. And, after she went to CARM, the grievor appeared entirely content to hand off the company’s file. She never suggested that her continued involvement was required. Mr. McRoberts’ testimony about her statements appeared to have been made for the purpose of explaining and excusing his failures to take action on the file.\n\nIn the same vein, Mr. McRoberts’ second explanation for his reliance on the grievor was that she was a trade expert; he was not. This boils down to a contention that he had to rely on her because he did not understand the work. Ample evidence suggests that Mr. McRoberts’ grasp of the company’s file, the FGU’s work, and the structure of the TAPD was so weak that he chose to defer to others, including the grievor. It would be possible to conclude, based on that evidence, he did not order her to close the company’s file because his understanding of the file was hazy. It may well be that with 20-20 hindsight, he now wishes that he had taken a different approach. Responsibility his choices does not, as argued by the employer, sit with the grievor.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-77", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 187–188", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I am not persuaded by the argument that the grievor should have accepted the advice and recommendations of those one, two, and three levels below her in the chain of command, given that it would have effectively required an inversion of the workplace hierarchy. This argument disregards her mandate to direct subordinates. Her role included providing guidance to others, before and after the merger. Her directions to subordinates to complete additional work that they would have preferred not to have done, even where that preference was based on an honest evaluation and judgement, is not evidence of her negligence or lack of judgement. It is evidence of differing points of view. The grievor, as the manager, had the discretion to resolve these differences in a way that was reasonable and for the purpose of protecting the CBSA’s interests. This is what she did.\n\nI might have found differently had the grievor’s directions to the FGU or her concerns about the manufacturing process appeared either unreasonable or obstructive. But ample evidence before me pointed to the reasonableness of these directions. Information about the manufacturing process was requested in the CBSA’s June 25, 2012, letter to the company initiating the verification, long before the grievor’s involvement with the file. In that letter, the CSBA asked, “How is each product manufactured? What is each product used for? How is each sample stored?” These questions all relate, directly or indirectly, to manufacturing. It is clear from the letter that manufacturing process information was important and relevant.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-78", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 189–190", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "There are other hallmarks of reasonableness in the grievor’s continued pursuit of this additional information. Her explanation that she had to ensure the defensibility of the CBSA’s ultimate decision is consistent with the undisputed evidence that this sensitive file required cautious, careful treatment. The company did not merely advance an unsupported argument about its imports. It sought the input of Dr. Hill, an acknowledged expert, and cited previous CBSA decisions. The grievor transparently acknowledged in her testimony that she knew that the FGU’s position might prevail in the long run. She had no preference for a particular result but had to ensure that the CBSA would have a defensible file if it faced public, legal, or political scrutiny. All the CBSA’s witnesses said that this was possible. Making recommendations on matters of this nature was part of her executive role. Taking all of this into account, I cannot conclude that her actions were careless, or for the purpose of stalling the file. The evidence indicates the contrary, that she wished to take a prudent and comprehensive approach.\n\nThe employer’s argument that the grievor failed to follow her subordinates’ directions also sidesteps Mr. McRoberts’ managerial responsibility to direct her. The TAPD’s staff had differing views on the company’s file. The grievor wanted more information; the FGU wanted to go ahead without it. Mr. McRoberts decided to defer completely to the grievor, based on his view that she held herself out as a trade expert. While his deferral to her is consistent with the employer’s argument that she should have deferred to those below her in the chain of command, it was consistent neither with his executive role nor with any normal understanding of workplace hierarchies.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-79", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 191–192", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As Mr. McRoberts agreed on cross-examination, it was his job as the most senior manager to decide between the opposing views on the company’s file. He cannot blame his failure to do so on the grievor. This is especially so given that her actions on the company’s file were transparent and within the scope of her role. If the CBSA disagreed with her choices, a direction to handle the file differently would have needed to come from either Mr. Wex or the only TAPD employee more senior than her: Mr. McRoberts. She cannot be faulted for not taking direction from the subordinates to whom she was supposed to provide guidance.\n\nThe employer also tried to make much of the idea that there is a difference between asking for information that one does not yet have and verifying the information that one already has, and that the grievor gave inconsistent testimony in this regard. Evidence from multiple witnesses indicated that the grievor asked for information that she did not have, to verify or confirm the information that was on hand and the position taken by the FGU based on that information. Small changes in phrasing at different moments did not impact her credibility or reliability.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-80", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 193–195", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer argued that the grievor accepted the company’s argument that the CBSA was vulnerable to criticism even though the CBSA’s subject matter experts disagreed. It is hard to reconcile this argument with the evidence. Multiple witnesses confirmed that the CBSA could indeed have received multifaceted criticism in the wake of a reclassification with such an enormous financial impact; the undisputed need for a briefing note on the company’s file was evidence that everyone wanted to ensure that the CBSA was prepared to face it. I do not find that the grievor’s choice to seek further information to ensure that the company’s potentially valid arguments were not improperly disregarded was unreasonable.\n\nAgain, had the grievor concealed either her course of action or the potential financial impact of missing some or all of the four-year window, my finding might have been different. I saw no evidence that she was not forthright about the file’s status or its financial implications. Witnesses who could have testified to her lack of transparency were not called to give evidence.\n\nOverall, the employer casts the grievor simultaneously as a line worker responsible for minutiae and stick-handling the company’s file, a middle manager responsible for routine guidance, an executive assistant tracking BFs, and a chief executive responsible for signoff. Before the merger, she was indeed a chief executive, but that role ended early in 2014. After the merger, she held none of those roles.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-81", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 196–197", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This argument is not consistent with the evidence. There were two levels of management between the grievor and the FGU subject matter experts, both of whom had a role in actioning her directions. A regular follow-up list was managed by the two executive assistants. The grievor explained why she did not expect rapid results on her requests. She knew that reaching out to the U.S. manufacturers would take time and planning. Further, her direction to subordinates had simply been to obtain the missing information; it was up to the FGU to devise a plan for doing so. Her assumption that her directions were being actioned does not appear unreasonable, given her role and the tracking that was in place within the TPD and then the TAPD.\n\nTo start with the second half of this argument, it is entirely unclear why the grievor would have been accountable for the company’s file after she went to CARM. It was undisputed that at that point, she had no role in the company’s file and no longer had carriage of her previous TAPD files. It would have been inappropriate for her to attempt to continue to direct this work. The grievor knew that Mr. McRoberts and others were well aware of the file and the four-year rule. Mr. McRoberts had discussed the file’s completion in meetings. It was reasonable for her to take for granted that he, rather than she, would continue to promote the file’s closure with whoever took on her previous role or with the FGU. It is difficult to see how any other conclusion could be reached. Most of the lost duties relate to months when she was at CARM or on leave.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-82", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 198–199", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As for the first assertion, it would have been open to the CBSA to tell the grievor to stop seeking the additional information and accelerate the process. This did not happen. It was not open to the CBSA, knowing the course of action that she was taking, to allow her to persist in that course of action for months and to expect her to guess that eventually, it would be deemed unacceptable.\n\nThe sums at stake function to bolster this conclusion. The grievor’s testimony was that one of the reasons she wanted to close the remaining gap on the file was the exceptional amount of retroactive duties, which had the potential to bankrupt the company and cause regional unemployment, with the consequence that the verification decision might attract political and media attention. Litigation was also a distinct possibility. This is consistent with the testimonies of other witnesses, including Mr. McRoberts, who indicated that the file required careful handling. The grievor chose to exercise her discretion to ensure the completeness and defensibility of the CBSA’s position. The sums in question, and their potential impact, point to the reasonableness of her approach rather than to negligence, lack of judgement or carelessness.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-83", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 200–201", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer alleges that the grievor’s file on the company was left in such a state that it required 10 months of work to “rebuild” it after she left and that several of the other files that she left behind had not been handled in a timely way, which delayed the rebuilding exercise. No detail was provided with respect to the other files; nor was untimely file completion raised in any of the grievor’s performance assessments or discussions before her departure from the workplace. This reference to untimely work is essentially a repackaging of the “timely completion of assignments” section of the McRoberts Report, which was not included as a termination ground in the termination letter. Since it chose not to rely on the untimely completion of assignments as a ground for termination, the employer cannot raise that ground through what amounts to the back door of the company’s file.\n\nIt is undisputed that both Mr. McRoberts and Ms. Ardito-Toffolo were aware of the company’s file by sometime in the fall of 2014. If after that point they ultimately chose to focus their attention on other files, including files formerly handled by the grievor, the responsibility for that choice does not sit with the grievor.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-84", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 202–204", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Further, it is difficult to understand how a file could have been both ready to go forward in the fall of 2013, as the employer contends, but left in such a state by the grievor by January 2015 that 10 additional months of work were required to resolve it in a context in which the grievor had not been the person doing the substantive file work. There are clear statements from all witnesses employed by the CBSA (except Mr. McRoberts) that the FGU did the day-to-day work on the company’s file. Several emails reflect this testimony; none are inconsistent with it. The FGU is where the company’s substantive verification guidance file resided. How rebuilding the grievor’s file could have mattered is a mystery.\n\nAt several points, the employer included in evidence and argument references to the grievor’s poor communication practices, such as the fact that she “sometimes” used capital letters in emails (infrequently, based on the emails adduced in evidence). The termination was not based on her demeanour or tone, and to this extent, these observations were irrelevant.\n\nThe grievor’s transparent, consistent approach to the file does not align with the employer’s narrative of sabotage or negligence motivated by the downgrading of her authority after the merger, or of a departure from her duties and role with the TAPD’s hierarchy. She took the same approach to the file before the merger as she did afterward. That approach was openly disclosed in meetings and multiple emails. It never changed. These facts do not support allegations that her actions constituted sabotage or were motivated by hurt feelings from the merger.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-85", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 205–208", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Nothing before me indicates that the grievor fulfilled her responsibilities on the company’s file in a manner that was negligent or lacked judgement. Having found that the grievor did not fail to comply with workplace standards, there is no need for me to consider whether her failures were such a marked departure from these standards that they constituted misconduct. The employer did not prove misconduct on her part. As such, the employer has not established that the termination of her employment was warranted or for cause, and the grievance is allowed.\n\nIn the event that the grievance was allowed, the parties asked me not to bifurcate the hearing, and to remain seized of any outstanding issues that the parties were unable to resolve.\n\nThe grievor is retroactively reinstated as of the date of her termination, as detailed in the order, to compensate her for the financial losses that flowed from her termination.\n\nThe grievor’s compensation included performance-based bonuses. For four of the five years before she was sent home, she received two performance ratings of “surpassed”, one of “succeeded”, and one of “succeeded minus”. I accept her explanation for her “succeeded minus” rating; it was a mandatory rating given to new executives, as indicated on the form. In essence, it is the equivalent of a “succeeds” rating. The 2014-2015 “does not meet” rating arose in an overall context of procedural unfairness (described in detail under the heading, “Was the employer’s conduct egregious?”). It is not reliable because of this and because of its inconsistency with the preliminary, informal performance review for the same period.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-86", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 209–211", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Wex could have testified to the grievor’s 2014-2015 performance; he was not called. The only reliable future performance indicators are the 4 prior annual ratings. It is reasonable to conclude that on a balance of probabilities, she would have continued to achieve “surpassed” ratings 50% of the time and “succeeds” ratings 50% of the time. Her retroactive bonus pay is to be calculated on that basis.\n\nPursuant to s. 226(2)(c) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2), an adjudicator may, in relation to a matter referred to adjudication, award interest in the case of grievances involving termination at a rate and for a period that the Board considers appropriate. In the context of the long period that the grievor was deprived of her previous salary, it is appropriate to award interest on the amounts owed for lost salary and performance pay, after mitigation is deducted. The adequacy of the grievor’s mitigation efforts was not contested by the employer.\n\nAggravated and punitive damages are different plants that grow in the same soil — the employer’s egregious conduct. Both apply only in exceptional instances (see Lyons, at para. 153). For both, care must be taken to ensure that the damages awarded are not inordinately high. These damages must also be proportionate in the circumstances of the case and in the context of the total damages award and the analogous case law (see Spruce Hollow, at para. 82 and Whiten, at para. 110). However, there are significant differences between these two types of damages.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-87", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 212–214", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Aggravated damages return a grievor to the position in which they would have been, but for the employer’s egregious conduct, by compensating the intangible harms caused by that conduct. In contrast, punitive damages do not compensate; they punish, denounce, and deter (see Whiten, at para. 43). From this point, I will use the term “punishment” to refer to all three of these purposes.\n\nThere is no longer a requirement to show an independent actionable wrong when claiming aggravated damages (see Fidler, at para. 55, Honda, at para. 59 and Spruce Hollow, at para. 121). When assessing whether aggravated damages apply, the focus is on the grievor. If the employment contract gave rise to reasonable expectations, which the employer’s egregious conduct violated, aggravated damages may apply. The first question to answer is whether the grievor’s alleged harms were foreseeably caused by the employer’s egregious conduct. The harms must exceed the foreseeable distress that follows a termination (see Spruce Hollow, at para. 79 and Honda, at paras. 50 to 57).\n\nThe harms that may be compensated by aggravated damages include mental distress, low self-esteem, loss of reputation and morale, hurt feelings, feelings of betrayal, and frustration (see Spruce Hollow, at para. 80, Mattalah, at para.164). Medical evidence can support an aggravated damages claim but is not required (see Spruce Hollow, at para. 109, Lyons, at para. 101).", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-88", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 215–216", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "When assessing whether punitive damages apply, the focus shifts to the employer (see Whiten, at para. 127). These damages serve to punish the employer’s egregious behaviour (see Spruce Hollow, at para. 83). If the awarded compensatory and aggravated damages already achieve this goal, then no rational purpose is served by a further award (see Prinzo, at para. 74, Whiten, at paras. 109, 110 and 123). For this reason, compensatory and aggravated damages are determined before punitive damages are considered. When determining the appropriate amount of punitive damages, I must be mindful of the so called “dimensions” of proportionality, as established in Whiten (at paras. 111 to 128), to ensure that any award is rationally proportionate to the goals that punitive damages serve.\n\nFor punitive damages, the requirement for an independent, actionable wrong remains (see Honda, at para. 68, Fidler, at para. 63, and Spruce Hollow, at para. 121). The independent actionable wrong is often found in conduct that breaches the expectation of good-faith dealings (see Honda, at para. 62). Such conduct, in employment settings and elsewhere, has been described as follows: · unfair or in bad faith by being, for example, untruthful, misleading, or unduly insensitive (see Honda, at para. 57); · malicious, oppressive, and high-handed (see Prinzo, at para. 74, quoting Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130); · untruthful, defamatory, and misleading (see Spruce Hollow, at paras. 80 and 124); · a marked departure from ordinary standards of decency (see Fidler, at para. 63); · high-handed, malicious, arbitrary, or highly reprehensible (see Whiten, at para. 94); and · malicious, harsh, reprehensible, and harmful (see Robitaille PSLRB, at para. 344).", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-89", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 217–219", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Accordingly, these are the questions to consider when evaluating aggravated damages: · Was the employer’s conduct egregious? · If so, what, if any, are the foreseeable harms caused by the egregious conduct? · Are the harms greater than the foreseeable distress of a termination? · If so, what is an appropriate amount of aggravated damages?\n\nThese are the questions to consider when evaluating punitive damages: · Does an independent actionable wrong warrant punishment? · Are compensatory and aggravated damages sufficient as punishment? · If not, what further damages are appropriate? · Is the overall amount of damages appropriate, reasonable, and rational?\n\nAll employees have a reasonable expectation of fairness and good faith in discipline. This expectation is especially relevant, and would reasonably be heightened, in the context of a large public service employer that has an investigative and adjudicative function. Prior to discipline, a properly conducted disciplinary process would have involved these steps: fairly determining the facts of the incident for which discipline was contemplated, clear and timely misconduct allegations, and a meaningful chance to respond to those allegations. Only after these basic components of due process were completed would the employer have been able to contemplate appropriate discipline, had misconduct occurred. None of these steps were taken.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-90", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 220–221", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The disciplinary process was profoundly untimely, both for the allegation that the employer relies on and for the other allegation cited in the termination letter. While the CARM allegations and the concerns about untimely assignment completion are irrelevant for assessing misconduct, as they were not relied on, they are relevant to the question of whether bad faith occurred in how the disciplinary process was handled overall.\n\nThe explanation provided by Mr. McRoberts for waiting until 2016 to begin the disciplinary process was that this work could not be done until the company’s file was closed. This does not align well with the facts. When the grievor was sent home based on events that took place involving CARM, no reference was made to the company’s file. At this point, at a minimum, any employer concerns about the disarray in which the grievor had left her file would have already crystalized. It is not at all clear why these concerns were not mentioned before she was sent home and were not investigated promptly. According to Mr. McRoberts’ testimony, Mr. Wex, who left the CBSA in September 2015, asked him to prepare a report on the grievor’s performance. BMCI was not retained to prepare a report until late January or early February 2016, which was over 10 months after the grievor was sent home and five months after the departure of Mr. Wex.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-91", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "para 222", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Any misconduct that the grievor committed on the company’s file would have ceased in January 2015, when she went to CARM and left her role on the company’s file. By the time she was sent home on leave with pay in April 2015, the employer either would have or could have been aware that more than 3 months’ worth of retroactive duties in the company’s file could not be collected. Despite this, the company’s file was never mentioned at the April 2015 meeting. On the untimely completion of assignments, 26 of the 36 incidents discussed in the chronology of overdue tasks related to the 2013-2014 fiscal year, but the grievor’s PMA for the 2013-2014 fiscal year does not mention concerns with overdue tasks. For both the company’s file and the 2 withdrawn allegations in the termination letter, the grievor did not receive notice of any allegations until April 19, 2016, over 15 months after her work on the company’s file ceased and almost 12 months after the employer first brought to her attention the fact that it had unspecified concerns about a CARM meeting on April 8, 2015. All of this is of concern; it appears that the employer reached back in time to amass multiple allegations, without attention to whether the allegations were timely or fair. This is not consistent with good faith discipline.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-92", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 223–225", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "No plausible explanation accounts for these delays. The employer promised to share its allegations in the disciplinary process by October 2015 but did not provide them until many months later. The effect of this delay on the grievor was oppressive and harmful. Nothing in the evidence before me allows me to conclude that the employer had even formulated allegations in October, which was more than six months after the grievor had been sent home. Again, this is of deep concern and suggests reasons other than bona fide discipline for removing the grievor from the workplace. It was also callously and reprehensibly insensitive to the grievor, professionally and personally, and represents a departure from the ordinary standards of decency. This was both unfair and high-handed.\n\nOf even greater concern is the failure to investigate the allegations that eventually were brought forward. The failure is compounded in that the person leading the disciplinary process was directly implicated in the company’s file in much the same way as the grievor — as a responsible executive at the time of the events, but whose oversight and override exceeded the grievor’s. Further, almost all the losses incurred happened after she had left, and Mr. McRoberts was in charge.\n\nDespite this, Mr. McRoberts selected and briefed Mr. Séguin. This allowed him to outline a foregone conclusion of culpability and to raise the ultimately unfounded bullying and harassment allegations and his bizarre reference to the grievor’s financial independence. Mr. McRoberts chose the documents but notably did not include her notes or her purportedly disarrayed file on which he blamed the delays that occurred after she left the workplace. These actions can be characterized as high-handed.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-93", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "para 226", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Another concern with the McRoberts Report is the use of Mr. Bonnell (the CBSA employee who investigated the ultimately unfounded harassment allegations against the grievor) as a witness. Mr. Bonnell had no involvement in the company’s file, CARM, or the assessment of the grievor’s performance. The only issues he could have provided information on were those related to the harassment allegations, the investigation of which was still on going at the time Mr. Séguin was completing the McRoberts Report. In this context, it is difficult to understand what purpose Mr. Bonnell’s testimony could have served, or why it was included in the process leading up to the McRoberts Report. The possibility exists, however, that the inclusion of a witness whose only connection to the grievor was through the ultimately unfounded harassment investigation unfairly coloured the assessment of the grievor’s performance (even if this was not Mr. Bonnell’s intention). Notably, no witness statements were entered into evidence, nor do any appear to have been attached to the final version of the McRoberts Report. All of the witnesses for the McRoberts Report were proposed by Mr. McRoberts.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-94", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 227–230", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At multiple points, the McRoberts Report is misleading, even with respect to the attachments that it references. For example, it quotes Ms. Gilbert’s email, which mentioned that Mr. Pezoulas stated that the grievor wanted to avoid the July 2013 meeting with the company. It then quotes the grievor’s July 3, 2013, email reply at length but omits her plausible explanation for the appearance of avoidance, as follows: … I will speak to Glenn [the company’s lawyer] tomorrow at 4:30 PM, from the SRS, to firm up details of the meeting. Dino misunderstood; I was not trying to avoid the meeting. I did say that I was hopeful that we could just have a phone call but once Glenn indicated that he wanted to involve the owner and a “cheese expert”, I agreed that a face-to-face meeting. [sic] …\n\nThe McRoberts Report goes on to state that a face-to-face meeting was requested on July 11, 2013. The email just quoted makes it clear that at least some version of this request must have come earlier.\n\nAnother example of a misleading statement in the McRoberts Report is that it vaguely references competing priorities, which leaves it open to the reader to conclude that the grievor was both responsible for, and not properly managing, competing priorities. The attachment to the report makes it clear that the competing priorities referenced occurred at the CBSA’s lab.\n\nThe fact-finding portion of the McRoberts Report ignored directly relevant evidence and facts, most notably in failing to hear from the grievor or look at her notes. This was unfair. This process was not an investigation; it drove toward a predetermined conclusion, based on a rush to judgment. This is bad faith.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-95", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 231–232", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Despite these flaws, many of which are obvious to even a casual reader, Mr. Ossowski relied on the McRoberts Report, which demonstrated little respect for fair process and no discernible interest in the actual causes of the millions of dollars of unrecoverable duties.\n\nGiven Mr. McRoberts’ testimony that he had “insisted”, with Mr. Wex, on hiring an arm’s-length, independent third party, it might have been possible to conclude that Mr. Ossowski assumed that based on reports of these conversations, there had indeed been an independent investigation, but for the fact that Mr. McRoberts is named as the sole author. This alone should have been cause for concern, given Mr. McRoberts’ role in the company’s file. This fact does not appear to have troubled Mr. Ossowski. When asked why he had not a spoken to the grievor before terminating her employment, as requested, Mr. Ossowski candidly, and without hesitation, answered that whatever she might have said, he still would have preferred Mr. McRoberts’ version of events to hers. To the extent that he knew that their versions might differ, he said that he preferred Mr. McRoberts’ version, even without having heard her version of the events. This is the very definition of bias and prejudgment.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-96", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 233–234", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "A failure to make reasonable, good faith efforts to ascertain the facts surrounding misconduct allegations would be problematic in any disciplinary process. It is particularly alarming in the context of what the employer describes as a multi-million-dollar liability. While the reasons for the failure to investigate remain unclear, it is clear that the employer’s choices were well suited to shielding those other than the grievor and poorly suited to determining the actual reasons for the timeline in the company’s file. These reasons remained opaque even after 11 hearing days.\n\nAt the hearing, Mr. McRoberts continued to refer to the McRoberts Report as an investigation and to Mr. Séguin as an investigator, even while he acknowledged that he knew this was inaccurate. These references cannot be construed as other than deliberate, if flimsy, camouflages for what truly occurred; they are lies. Mr. Ossowski’s testimony reflected the same inaccurate terms, and while their inaccuracy did not originate with him, the careless and negligent way he adopted them, without respect for the reality of the flawed termination process or the impact on the grievor, is of deep concern. The employer deceitfully disguised its failure to conduct a proper investigation, to give it the appearance of due process. This is bad faith.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-97", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 235–236", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Further, although not a determining factor, there is a troubling kitchen-sink flavour to the allegations that were initially piled up against the grievor only to later be abandoned or withdrawn. It must be clearly stated that merely withdrawing grounds for discipline is not, by itself, evidence of bad faith in the context of a properly conducted disciplinary process. But in this case, the unfounded grounds were only nominally abandoned or withdrawn. Mr. Ossowski testified that many of the unfounded grounds factored into the termination decision, even though the harassment allegations were known to be unfounded by the time the decision was made to terminate the grievor.\n\nIt is not acceptable to simultaneously set aside an allegation and continue to rely on it through innuendo. At the hearing, Mr. Ossowski characterized the grievor as distrusted, feared, uncooperative, and difficult. Had he stopped there, this would merely have been an opinion. But he did not stop there. He framed these characterizations as ongoing justifications for termination. At that point, the characterizations shifted from opinions to baseless personal attacks. This is bad faith.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-98", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 237–238", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The testimonies advanced by both Mr. McRoberts and Mr. Ossowski referenced the grievor making deliberate acts against the employer’s interest. Mr. Ossowski said that it would be reasonable to conclude that the lost duties were a deliberate act. Mr. McRoberts said that the grievor had engaged in “something like sabotage”. The only support he offered were his vague musings that she was not “on the same page” as him and that she did not “mesh”. This is not sufficient support for a sabotage allegation. Ms. Leblanc indicated that she and the grievor often ended up in “personal venting sessions” in their bilats. While I do not doubt her sincerity, this is insufficient as evidence of deliberate lack of care or sabotage. Venting to a subordinate employee may well be inappropriate, depending on the tone and content, but it does not prove intent to harm. The leap from not being on the same page or a failure to mesh to sabotage is considerable and demonstrates a rush to judgment.\n\nIn all, the employer’s egregious conduct in this matter consisted of bad faith, including its failures to engage in a timely or procedurally fair disciplinary process and to investigate (failures which the employer attempted to conceal), its rush to judgment, its reliance on unfounded allegations and its unsupported allegations of bad faith against the grievor.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-99", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 239–240", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor had a reasonable expectation that as a public service employee, her performance would be assessed fairly, and that if the employer contemplated discipline, it would do so in good faith, transparently and honestly, with respect for due process. None of these expectations were fulfilled. The grievor detailed the impacts of the employer’s egregious conduct in her testimony, which include the distress that drove her to seek counselling when she was on leave with pay (which the employer did not challenge) and her continuing difficulties with professional confidence, with second-guessing herself, and with trusting others.\n\nThe grievor testified that she felt completely blindsided by the events that occurred during the entire period at issue, starting with being sent home in April 2014. Like many executives, much of her life, including her social circle, had focussed on her work. She felt isolated and demoralized. She needed professional help to get through this extremely dark time. She continues to experience difficulties with self-confidence at her new job. She referenced an unreasonable level of paranoia. I did not understand that she used that word in a clinical sense, but rather, I understood that she referred to a constant and pervasive insecurity and fearfulness.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-100", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 241–242", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "These deep and long-lasting impacts are directly linked to the lack of fairness in her unreasonably protracted disciplinary process and the baseless accusations, including accusations of bad faith, made against her. She has also experienced a sense of loss. Her CBSA work mattered deeply to her. Again, this is consistent with her executive role. She is now unlikely to be able to attain her long-fostered goals and ambitions because “the runway is too short”. Although these impacts were not supported by medical evidence, they also were not challenged.\n\nThese impacts were not the normal consequences of a termination. They are connected to the egregious way in which the grievor was treated rather than to what would be expected following a fair disciplinary investigation or a termination. The grievor had a reasonable expectation that any disciplinary action would be conducted fairly and, at a minimum, be conducted in good faith. The employer’s breaches of this expectation were marked. The paranoia and lack of trust that the grievor describes was a foreseeable consequence of the breaches of fairness and trust committed by her employer. During the disciplinary process, the employer displayed a callous disregard for the impact of its actions on her. This is particularly true given the startling length of the flawed process. For almost three years, she was left at home, wondering what would become of her career and reputation. To the end, she held on to a hope that ultimately, the CBSA would act fairly.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-101", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 243–245", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The repeated, knowingly incorrect use of misleading terms like “investigator”, “investigation report”, “investigation methodology”, “arm’s length”, and “independent third party” aggravated the wrong done to the grievor through the failure to investigate. The banality conferred by repetition may have made these falsehoods more palatable to those fabricating them, but it did not transform them into truths. However, these repetitions, which began during the disciplinary process and continued at the hearing before the Board many years later, can be reasonably assumed to have exacerbated the continuing harms experienced by the grievor. Again, these harms are consequences of the employer’s callous bad faith, rather than being the foreseeable consequences of a fairly conducted disciplinary process or termination.\n\nBecause aggravated damages compensate intangible suffering, their calculation is an inexact science. Referring to previous cases is useful when considering the amount of the damages. Among the aggravated-damages cases submitted by the parties, Mattalah and Lyons are most relevant as they were employment cases in the federal public service. In Lyons, the Board noted that recent cases have found that a typical range for these damages, when unsupported by medical evidence, is $25 000 to $35 000, although higher and lower awards have been made (para. 136).\n\nIn Mattalah, aggravated damages of $20 000 applied in the context of an unfairly imposed performance plan that led to a lack of confidence, hurt feelings, low self-esteem, humiliation, stress, anxiety, and a feeling of betrayal (para. 164). These harms were experienced in the context of a lost posting, rather than a termination. In this case, the elements of bad faith are similar, but the harms are more severe.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-102", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 246–248", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In Lyons, the grievor received $135 000 in aggravated damages for significant, ongoing psychological harm related in part to a flawed disciplinary process. As in Lyons, some of the grievor’s psychological harm in this case relates to the loss of employment for which she had spent years developing specialized skills and knowledge. However, the claim in Lyons was supported by medical evidence and involved more extreme harms than what the grievor experienced, including long-term serious harm to both physical and psychological health.\n\nGiven the extent of the disregard for fair process in this case, it was foreseeable that the resulting damage would be deep. The grievor’s resilience, despite these harms, in finding alternate employment and getting on with her working life does not mean that these harms have disappeared. From her testimony, it was clear that even 8 years after the employer’s flawed disciplinary process started, the harms still affect her, personally and professionally. An award at the high end of the typical range is indicated. The appropriate amount of aggravated damages is $35 000.\n\nThe employer’s bad faith in the disciplinary process constitutes an independent actionable wrong. When considering whether punitive damages are necessary to punish the employer, I considered the Whiten proportionality “dimensions”, as follows: 1) the blameworthiness of the defendant’s conduct; 2) the plaintiff’s vulnerability; 3) the harm of the conduct to the plaintiff; 4) the need for deterrence; 5) the unjust enrichment for the defendant; and 6) the amount of other damage awards for the same misconduct (see Whiten, at paras. 112 to 126, Spruce Hollow, at para. 122).", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-103", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "para 249", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The blameworthiness of the employer’s conduct is clear, following the principles in Whiten. Bad faith, deceit, and reliance on baseless and withdrawn allegations make a sham of just-cause discipline and expectations of fairness and decency. The employer persisted in this course of conduct over the three years of the disciplinary process, and many elements of its bad faith were evident at the hearing in the continued references to a non-existent investigation process. The grievor’s vulnerability is also clear. For the three years during which she was at home, she was completely subject to the employer’s continued pretense that it was engaging in an appropriate disciplinary procedure. As a non-unionized public service employee receiving full pay, she had no recourse to the grievance process until she was disciplined. The employer held her working life in its hands and treated it recklessly, without respect for due process or ordinary standards of decency, which caused her lasting harm. Its behaviour deserves denunciation and punishment, and it should be deterred from repeating that behaviour.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-104", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 250–251", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Although the employer received no direct financial benefit from its behaviour, the McRoberts Report omits Mr. McRoberts’ role and responsibilities on the company’s file, despite his having had “not the most pleasant meeting” of his career in the wake of the file’s completion. His potential responsibility or culpability is entirely sidestepped in the McRoberts Report. This is important. Not only was the McRoberts Report a failure of due process, but also, it provided a direct benefit to Mr. McRoberts (and possibly others) by erasing his accountability and diverting attention from his role in the timing of the verification decision. This provided him with a benefit akin to unjust enrichment.\n\nIt is not contested that the grievor fulfilled her duty to mitigate her losses promptly. Her new job is less well paid than her previous role, but the salary gap is not huge. Her new employment is coextensive with most of the reinstatement period; compensatory damages will be much reduced by virtue of her efforts and considerable resilience, despite how the employer’s bad-faith dismissal process compromised her job-search abilities. Accordingly, the compensatory damages alone will be relatively modest, given what they might have been, and are unlikely to have a punitive impact. This impact is the rational purpose that punitive damages can serve.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-105", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 252–253", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Are the additional $35 000 in aggravated damages, when added to the compensatory damages, sufficient to deter, denounce, and punish the employer? The deterrent purpose of punitive damages has been compared to a fine, (see Lyons, at para. 156) and as such, must amount to more than a mere licensing fee for an employer’s bad faith. The employer was content to delay starting its disciplinary process until the grievor had been on leave for almost a year, at a cost of over $100 000 in salary. These salary costs continued to accrue and amounted to over $300 000 as the employer made its slow march toward a predetermined conclusion, but they did not deter it in its chosen path of bad faith. Further, no evidence suggests that the possibility that the loss of $26 000 000 of retroactive duties could have been avoided or reduced motivated the employer to properly investigate the overall handling of the company’s file. The apparent licensing fee that the CBSA was prepared to pay to engage in an extended bad-faith disciplinary process was very costly.\n\nFor these reasons, it is unlikely that the combined compensatory and aggravated damages will be sufficient as deterrence.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-106", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 254–256", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Robitaille PSLRB is directly relevant, given the investigation launched without verifying the facts, the reliance on unproven allegations, the employer’s attempt to avoid accountability, and the findings of breaches of transparency, diligence, prudence, and impartiality, which are similar in this case. However, the Robitaille PSLRB decision is almost 15 years old, and the grievor in that case was disciplined, not terminated. The grievor in this case was placed in more precarious circumstances by the employer’s egregious conduct. The value of money has been considerably affected by inflation in the intervening years. This all must be considered when assessing whether the same award ($50 000) could still serve a punitive purpose.\n\nLyons is a more recent decision. As in Lyons, in which $75 000 was awarded in punitive damages, the employer’s reprehensible approach to the disciplinary process in this case was conscious and deliberate. Its conduct shielded those whose conduct might otherwise have been scrutinized. Most importantly, as in Lyons, the employer knew that it was making false statements about the disciplinary process. Although this employer’s approach to the disciplinary process was perhaps somewhat less brazen, the flaws in both processes are similar in their falsified nature.\n\nIn arriving at the appropriate sum of punitive damages, I also considered the deliberate, callous, sustained, and bad-faith nature of the employer’s conduct in terminating the grievor. A punitive award at the higher end of the range is appropriate. The grievor is awarded $75 000 in punitive damages.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-107", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 257–266", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The resulting overall amount of damages reasonably reflects the minimum amount necessary to punish, denounce, and deter repetition of the employer’s bad faith. Given the grievor’s multiyear ordeal, her financial losses, and the lasting impacts on her life and her career, it does not unfairly enrich her.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe grievance is allowed.\n\nTabs 1 to 8, 10, 11, 13, and 14 of the “Employer Book of Documents” (Exhibit E-1) and tabs 14 and 16 of the “Grievor’s Book of Documents” (Exhibit G-1) and Exhibits E-3 and G-3, are ordered sealed. Further, in accordance with the sealing and confidentiality order, redactions were made at tabs 12 and 15 of Exhibit E-1 and in Exhibit E-2.\n\nThe grievor is retroactively reinstated to her previous occupational group and level as of the date of her termination, with full salary, and with all other employment-related compensation (including vacation and performance-based pay), and all employment benefits, including all dental, vision, and extended health benefits. Her banked sick leave is restored.\n\nAny employment income received from other sources after the date of the grievor’s termination will be deducted from the salary owed to her.\n\nPerformance-based pay will be based on performance ratings of “surpassed” for 50% of the retroactive period and “succeeds” for 50% of the retroactive period.\n\nThe grievor will be compensated for any out-of-pocket expenses for the buyback of pensionable time post-termination, which are not otherwise refunded to her in the process of her reinstatement.\n\nThe employer will pay the grievor aggravated damages in the amount of $35 000.\n\nThe employer will pay the grievor punitive damages in the amount of $75 000.", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521231-108", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 115", + "act_short": "Kline", + "act_name": "Kline v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Kline v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 115", + "marginal_note": "paras 267–268", + "heading": "Bad-faith termination of a CBSA employee; reinstatement and damages", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Interest on the amounts detailed paragraphs 261 to 264 is to be calculated as set out in the Federal Courts Act (R.S.C., 1985, c. F-7) at the pre-judgement rate to the date of these reasons. The post-judgement rate shall apply after that and shall also be awarded on the amounts for aggravated and punitive damages.\n\nThe Board remains seized of this matter for 120 days, to deal with issues arising from the issuance of this order. August 16, 2024. Edith Bramwell, a panel of the Federal Public Sector Labour Relations and Employment Board", + "current_to": "2024-08-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521231/index.do" + }, + { + "id": "fpslreb-521195-1", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 1–3", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Pedro Sousa Dias (“the grievor”) is a border services officer, classified at the FB-03 group and level, working for the Canada Border Services Agency (“CBSA” or “the employer”) at its Lansdowne, Ontario, port of entry. On December 30, 2021, he referred two grievances to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication under both ss. 209(1)(b) and (c)(i) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”).\n\nThis case arose out of events that began in March 2020 as the COVID-19 pandemic began to manifest in this part of the world. All workplaces were struggling to cope with the unprecedented global public health crisis. The federal government sent office workers home, but the need to provide critical services required most border services officers to remain in the workplace, with some exceptions. Little was known at the time about the COVID-19 virus. The employer began to develop guidance for management for dealing with exceptional circumstances, and it implemented several measures to cope with the situation.\n\nOne early measure was to approve 6990 leave (leave with pay for other reasons), which was a discretionary leave available under the collective agreement between the Treasury Board and the Public Service Alliance of Canada (“the bargaining agent”) that expired on June 20, 2018 (“the collective agreement”).", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-2", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 4–5", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In the very early days of the pandemic, the employer approved that leave based only on employees’ verbal attestations that they had consulted their doctors or public health professionals and that they, or the people with whom they cohabited, were medically vulnerable to the COVID-19 virus. As set out in the employer’s COVID-19 capsule entitled “Exploring flexibility for critical workers if you or someone you live with is vulnerable” (“the capsule”): … a) All employees providing critical services who put in a request for modified or at home duties must first contact the Public Health Authority or a medical professional about their circumstances and medical situation. Given the pressures on the health network, Management will only request medical certificates in exceptional circumstances. Otherwise, a verbal declaration that the employee has consulted their doctor or a public health nurse will suffice.… …\n\nIn March 2020, the grievor experienced a brief flu-like illness as a result of which public health authorities advised him to isolate. On March 31, 2020, he was approved for four days of 6990 leave with no need to provide a medical certificate.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-3", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "para 6", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "He then continued working onsite for several months but became increasingly concerned about workplace health-and-safety issues that he felt posed a risk to him and, therefore, to his wife who he understood to be at risk of a severe health outcome or death should she contract COVID-19 according to Health Canada guidelines. Accordingly, on June 3, 2020, he requested 6990 leave, and on June 4, 2020, his request was approved, effective June 5, 2020, as follows: … In looking at your request for an accommodation, due to the fact that your wife is considered higher risk for severe illness should she contract COVID-19, management’s questions and inquiries in relation to your situation is part of the accommodation process. We are attempting to have a better understanding about the particulars of your situation in order to determine if there is meaningful work available in the workplace that meet your accommodation needs. This process is a collaborative one, and I am appreciative of the information you have shared. In evaluating your request, based on the information provided, management is in support of offering you Leave with Pay for Other Reasons, effective June 5, 2020 with an ongoing review. I will connect with you via email on a weekly basis to determine extensions of this leave for the following week. Management is continually reviewing the operational requirements and the requests for Leave with Pay for Other Reasons. As circumstances change, you may asked to return to work given your role as an officer who provides critical services. Your flexibility and continued commitment to doing your part to safeguard Canadians is greatly appreciated. … [Sic throughout]", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-4", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 7–8", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On or about June 25, 2020, the employer began to review the situations of the nine employees, of which the grievor was one, who had been approved for 6990 leave based on their verbal attestations. The review was to determine, in each case, if the leave was still required, if any changes were needed, or if the leave should be discontinued. In a message to management, the purpose of the review was explained as follows: … In the early days of COVID-19 (March 2020), there was little expert health information available and minimal public health guidance for workplaces such as the CBSA. Consequently, at that time, the Agency was still developing its full scale occupational health and safety (OHS) response. A key part of our early response was approval for the broad used of leave with pay for other reasons as a means to help ensure the safety of our employees, their families, respective dependants, and the public. Since those early days, there have been significant advances in terms of expert health information, guidance from public health, and the implementation of numerous OHS measures within our workplaces. In order to ensure that the Agency is well positioned for the next stage of COVID-19 response, appropriately implement business resumption measures, continue to prioritize employee health and safety requirements, and manage CBSA resources effectively, it is important that the Agency fully review the use of leave with pay for other reasons cases and update its use to reflect the current conditions and those anticipated in the coming months. … [Sic throughout] [Emphasis in the original]\n\nThe employer asked for signed attestations and medical information via a medical questionnaire that employees were asked to take to their doctors to be completed.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-5", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 9–12", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Candace Ricci, an administrative superintendent at Lansdowne at the time, testified before the Board. She was responsible for carrying out the review process. A regional review committee had been struck to review the leaves. A subcommittee prepared the files, conducted preliminary reviews, and made recommendations.\n\nInitially, the grievor was one of three employees who did not wish to have their medical questionnaires completed, but ultimately, the employer received eight completed questionnaires. One employee, whose specialist would not complete the questionnaire, discussed the matter with Ms. Ricci, who resolved it by suggesting that he have his family doctor complete it. The grievor was the only employee who did not provide a completed questionnaire.\n\nMs. Ricci began each review by meeting with the employee, either in person or by phone. She met with the grievor by phone on August 12, 2020. He advised that he disagreed with the employer’s approach. On August 28, 2020, he confirmed in an email that he had already attested to his wife’s medical vulnerability (and did so again in that email) but that he would not have the requested medical questionnaire completed.\n\nOn September 9, 2020, the regional review committee reviewed the grievor’s situation and determined that it required answers to two questions and the completion of the written attestation and the medical questionnaire. The subcommittee recommended that he be removed from 6990 leave and that he be assigned to telework as an interim measure, to give him time to obtain and provide the required medical information.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-6", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 13–18", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On September 11 and 21, the employer again asked the grievor to provide the requested information. He answered the two questions but did not provide the written attestation or a completed medical questionnaire. He remained on 6990 leave until September 27, 2020.\n\nThe employer had been working on a telework arrangement for the nine employees on 6990 leave. On September 28, 2020, they all began teleworking on the Border Watch Line. Also on September 28, 2020, the employer sent the grievor the following: … Today was the deadline for the return of the medical questionnaire, and I have not received it. The Regional Review will be taking place next week, and in order to substantiate your request for either 6990 leave or accommodation in the form of telework due to living with a person who is at high risk for illness due to COVID 19, this is required to be completed. …\n\nOn September 30 and October 2, 2020, the employer asked again for the information.\n\nOn October 7, 2020, there was another committee review, this time of the grievor’s continued telework, as he was no longer on 6990 leave. On the same day, the employer asked him again to complete the attestation form and the medical questionnaire.\n\nOn October 20, 2020, the employer sent its final request and asked to have the information by November 18, 2020, failing which it would no longer be able to support the grievor’s telework arrangement. Despite this, further requests were sent to the grievor on October 23 and November 13 and 23, 2020.\n\nFinally, on February 4, 2021, the employer terminated the grievor’s telework assignment effective February 12, 2021, but advised him that if he provided the requested documentation, it would revisit its decision.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-7", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 19–23", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This is what the grievor grieved — the employer ended his telework assignment such that he was forced to use several types of earned leave until he could return to regular duties, which he felt he could do only once he and his wife were vaccinated.\n\nHe argued that the termination of his telework assignment amounted to what felt like a termination of employment because it had no end date, given the unknown future of the pandemic, or that it was a suspension that forced him to use his earned leave, which he characterized as a financial penalty.\n\nThe employer objected to the Board hearing these grievances. It submitted that the Board is without jurisdiction as these grievances cannot be adjudicated under either ss. 209(1)(b) or (c)(i) as they do not relate to any of the topics outlined in those sections.\n\nSection 209(1)(b) provides that a grievor may refer to adjudication a grievance related to a disciplinary action resulting in termination, demotion, suspension, or financial penalty. The employer stated that no disciplinary action was imposed on the grievor; that he was neither terminated, demoted, suspended, nor subject to a monetary penalty; and that the grievances, on their faces, show that no discipline was imposed.\n\nThe employer argued that the essence of the grievances was whether the grievor could continue either teleworking or being on 6990 leave. These matters come under s. 209(1)(a) of the Act and relate to the interpretation or application of the collective agreement. As such, he would need his bargaining agent’s support to refer these grievances to adjudication, as set out in s. 209(2) of the Act.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-8", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 24–28", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Unlike those cases in which an employee challenges an employer’s characterization of a termination as administrative and argues that it was disguised discipline, in this case, there was no discipline. It was about entitlements under the collective agreement or employer policy, none of which he could refer to adjudication without his bargaining agent’s support.\n\nThe employer also noted that the grievor had checked two of the grievance form boxes, indicating that the grievances were being referred to the Board not only under s. 209(1)(b) but also under s. 209(1)(c)(i). This was contradictory in that s. 209(1)(b) refers to disciplinary action, and s. 209(1)(c)(i) refers to actions other than disciplinary actions.\n\nThe employer submitted that as the Board’s jurisdiction is derived strictly from the Act, and as the subject of the grievances has nothing to do with discipline, the Board has no jurisdiction and should so decide based on the preliminary objection, without proceeding to hear evidence.\n\nThe grievor submitted that at the start of the COVID-19 pandemic, he was placed on 6990 leave with pay due to his wife’s health condition, which put her at risk of a severe health outcome or death due to COVID-19, according to Health Canada guidelines. Later, he was assigned to telework.\n\nIn his view, by first placing him on leave with pay and then on telework, the employer acknowledged that he was unable to return to onsite work. He had informed the employer that he would return to his normal duties as soon as he and his wife could be vaccinated against COVID-19.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-9", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 29–33", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "However, the employer directed him to have his wife see her doctor for a note that she was in a vulnerable group according to the Public Health Agency of Canada and to ask the doctor to assess the risk of viral transmission in the workplace, given the employer’s new protective measures that had been implemented in the workplace.\n\nThat direction was unreasonable. It did not make sense to have a doctor assess the workplace; normally, the health and safety committee would agree on a subject matter expert to do it. In this case, anybody who was on leave or teleworking was asked to go to their doctor. Every medical situation is different, and each doctor would have their own views of the efficacy of protective measures in the workplace.\n\nEven more concerning to the grievor was that in his view, the information to be taken to the doctor included inaccuracies; that is, the employer had already breached some of the new protective measures listed (the pod system) or was inconsistently enforcing them (wearing a mask).\n\nDue to these issues with the employer’s direction, the grievor felt that he was unable to comply, and as a result, the employer terminated the telework assignment and denied him the ability to continue working from home.\n\nThere was no reason to terminate his telework assignment other than to punish him for not following the direction. The employer lost an employee who was doing meaningful, productive work and doing a good job of it, according to his telework supervisors. In his view, there was nothing to be gained other than removing him from the workplace.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-10", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 34–38", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In January 2021, shortly before he received an ultimatum on February 4 to provide the information, followed by the February 12 termination of his telework assignment, the employer sent communications that advised that COVID-19 infection rates were increasing and that those working at home should continue to do so.\n\nAs well, had its direction complied with CBSA or Treasury Board policy, then the employer could argue that it was an administrative measure. However, it was not following the Treasury Board directive or policy, and what it requested was not a Treasury Board requirement. It did not have the authority to direct him to do it; therefore, its direction to him could not have been administrative, only punitive.\n\nHis telework assignment was not an accommodation. In his view, by its actions, the employer attempted to tie the pandemic-related health-and-safety concern to the accommodation process, to circumvent the Treasury Board directive.\n\nBy removing him from telework, while being fully aware that he could not return to the workplace, given his wife’s condition, the employer knowingly placed him in a situation of being unable to work.\n\nIn the grievor’s view, this constituted a suspension that resulted in a financial penalty as he was forced to use his earned leave. Further, as it had no end date, and given the uncertainty as to what the future held with respect to the pandemic, it felt like a termination. His employment was effectively, if temporarily, terminated.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-11", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "para 39", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Section 209 of the Act identifies the matters that an employee may refer to adjudication, 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 209 (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, le fonctionnaire […] peut renvoyer à l’arbitrage tout grief individuel portant sur : (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award; a) soit l’interprétation ou l’application, à son égard, de toute disposition d’une convention collective ou d’une décision arbitrale; (b) a disciplinary action resulting in termination, demotion, suspension or financial penalty; b) soit une mesure disciplinaire entraînant le licenciement, la rétrogradation, la suspension ou une sanction pécuniaire; (c) in the case of an employee in the core public administration, c) soit, s’il est un fonctionnaire de l’administration publique centrale : (i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct ….", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-12", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 39–42", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "(i) la rétrogradation ou le licenciement imposé sous le régime soit de l’alinéa 12(1)d) de la Loi sur la gestion des finances publiques pour rendement insuffisant, soit de l’alinéa 12(1)e) de cette loi pour toute raison autre que l’insuffisance du rendement, un manquement à la discipline ou une inconduite, … […] (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. (2) Pour que le fonctionnaire puisse renvoyer à l’arbitrage un grief individuel du type visé à l’alinéa (1)a), il faut que son agent négociateur accepte de le représenter dans la procédure d’arbitrage. … […] [Emphasis added]\n\nThe grievance bearing Board file no. 566-02-44973 states as follows: “I grieve the termination of my telework assignment as a contravention of the Treasury Board’s direction and the Emergency Response Act regarding the covid19 [sic] pandemic.”\n\nThe grievance bearing Board file no. 566-02-44974 states: “I grieve the termination of my telework assignment as a contravention of the CBSA’s direction (capsule) regarding the covid19 [sic] pandemic.”\n\nAs noted earlier in this decision, each grievance was referred under both ss. 209(1)(b) and (c)(i) of the Act. However, at the hearing, the grievor clarified that he invoked s. 209(1)(b) only and argued that the termination of his telework assignment was disguised discipline.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-13", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 43–45", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer asked the Board to conclude that it lacks jurisdiction in this matter because the employer’s actions were administrative, not disciplinary. Therefore, the grievor could not challenge them under s. 209(1)(b) but only under s. 209(1)(a), and only with bargaining agent support. The employer submitted that that was clear on the faces of the grievances and that the Board could make that determination by simply confirming a few facts with the grievor, without the need to hear evidence.\n\nThe employer’s objection was compelling; however, the grievor was self-represented and had the onus to demonstrate that he had been subjected to a termination, suspension, or financial penalty, as he alleged. To ensure that he had every opportunity to make his case that his grievances were referable to adjudication under s. 209(1)(b), as alleged, I reserved my decision on the employer’s objection and heard the evidence.\n\nThe grievor did not make out his case. He was unable to demonstrate that there was any discipline, much less a termination, suspension, or financial penalty, as would be required for him to refer his grievances to adjudication under s. 209(1)(b). In Bergey v. Canada (Attorney General), 2017 FCA 30, the Federal Court of Appeal stated at paragraph 37 that “… distinguishing between a disciplinary and a non-disciplinary employer action requires consideration of both the employer’s actual (as opposed to stated) intentions in taking the action and of the impact of the action on the employee’s career” [emphasis in the original]. The employer’s evidence was that it required the grievor to provide medical information so that it could assess the ongoing need for his telework assignment or 6990 leave. Ultimately, it ended that assignment when he did not provide the information.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-14", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 46–48", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer’s stated intention in reassessing the situation of each employee who had earlier been approved for leave based on their attestations alone, with no medical information, included implementing business resumption measures and managing CBSA resources effectively. Approving leave that way in the early days of the pandemic was to safeguard the health and safety of its employees and their cohabitants, at a time when the CBSA was still developing its full-scale occupational health and safety response to the pandemic.\n\nAlthough I do not doubt that most employees would have assumed as much in any event, the documentary evidence sets out that it was also made clear to employees that telework assignments and 6990 leave were interim measures and that like all the measures taken in the early responses to the pandemic, they would evolve as the situation evolved. The CBSA’s measures evolved with advances in public health information and guidance, and with the implementation of numerous occupational health and safety measures in its workplaces. They were also consistent with the CBSA’s telework policy and its policy on the duty to accommodate.\n\nThe grievor criticized the employer’s requirement for further medical information because, in his view, it was not required by the Treasury Board and, therefore, could not be imposed on him. Or, as he put it: “I didn’t comply with the direction because they weren’t complying with policy and directives, therefore, they did not have the authority to make me do this.”", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-15", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 49–50", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "He disagreed with the questions on the medical questionnaire. He disagreed with the list of health-and-safety measures that the employer put on the medical questionnaire, as he felt that they were not all followed or enforced. He felt that he had twice attested to his wife’s condition and that he should not have to do it again. (However, I note that it was established at the hearing that although the grievor had twice attested in an email to his wife’s condition, he had never attested to having consulted a doctor or public health official, as the written attestation form required.)\n\nThe grievor relies on Christenson v. Deputy Head (Canada Border Services Agency), 2013 PSLRB 25, which upheld the grievances of three CBSA firearms trainers against their five-day suspensions for breaching a firearms policy. In that case, the adjudicator held that the text of the policy was unclear as to whether it applied to trainers and further that it had been applied inconsistently. No one had warned or directed the grievors that the policy applied to them, even when members of management knew that they were not following it.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-16", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 51–52", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In this case, the grievor was not unclear about the CBSA’s policies. Rather, he disagreed with them or felt that they were insufficiently enforced. In any event, all the grievor’s criticisms of and disagreements with the employer’s approach, on their own, have little significance. His opinions on these matters, while he is free to hold them, do not transform the employer’s actions into discipline against him. As the Federal Court stated in Canada (Attorney General) v. Frazee, 2007 FC 1176 at para. 21: “… the issue is not whether an employer’s action is ill-conceived or badly executed but, rather, whether it amounts to a form of discipline …”. Similarly, while the grievor spoke about a toxic workplace culture and a sense of retribution and reprisal among staff, in Frazee, the Federal Court also added that “… an employee’s feelings about being unfairly treated do not convert administrative action into discipline …” (at paragraph 21).\n\nThe grievor also relies on Grant v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 37 (application for judicial review dismissed, Canada (Attorney General) v. Grant, 2017 FCA 10). In that decision, the Board allowed three grievances about the CBSA’s decision to suspend a grievor without pay, revoke her reliability status and then terminate her employment. It found that suspending the grievor without pay was punitive and that suspending her reliability status was a reaction to perceived misconduct, not to security concerns. The Board found that the grievor’s ultimate dismissal was out of proportion to the allegations of misconduct.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-17", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 53–54", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor claims that by ending his telework assignment the employer was intent on removing him from the workplace because he did not comply with the request for further medical information. In assessing the impact of the employer’s actions, the grievor claims that the employer failed to consider the productive telework he was doing, which contradicted any need for him to return to work in-person. Also, the grievor points to the fact that following the end of his telework assignment, in February 2021, he did not return to work until June 2021. In his view, this prolonged absence from work indicates an intent to punish and that this punitive effect outweighs any initial administrative intent on the employer’s part (see Grant, at para. 141; and Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70, upheld in Basra v. Canada (Attorney General), 2010 FCA 24).\n\nThe employer did not terminate the grievor’s employment. At all times, he remained employed with the CBSA. According to the grievor, the employer ended his telework assignment knowing he could not return to work and that this was a punishment and a suspension. The problem with the grievor’s argument is that the employer did not know that he could not return to work. This is precisely why the employer asked him to provide further medical information.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-18", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 55–56", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Instead of providing that information or returning to work, the grievor used other types of earned leave until he decided to return to regular duties. He has not demonstrated that the employer’s intent was other than what it stated (to implement business resumption measures and to manage CBSA resources effectively), or that it intended to punish or correct his behaviour by ending his telework assignment. Nor did the grievor establish that his period of leave after the end of his telework assignment was a consequence of the employer’s actions or intended as a financial penalty (see Green v. Deputy Head (Department of Indian Affairs and Northern Development), 2017 PSLREB 17 at paras. 344 to 349; and Rogers v. Canada (Revenue Agency), 2010 FCA 116 at paras. 13 to 21).\n\nTo the contrary, the employer showed considerable patience. For several months, it kept the grievor on 6990 leave and then on telework. During this time, he repeatedly refused to even attempt to do what was required to keep him on telework. He was then asked to return to onsite work. The grievor did not establish that there was any immediate adverse effect on him due to the employer’s actions throughout the entire process. This is also one of the indicia of discipline outlined in Frazee.", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521195-19", + "doc_type": "caselaw", + "act_code": "2024 FPSLREB 63", + "act_short": "Sousa Dias", + "act_name": "Sousa Dias v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Sousa Dias v. Deputy Head (Canada Border Services Agency), 2024 FPSLREB 63", + "marginal_note": "paras 57–61", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor could have challenged the issues that he asserts he felt strongly about concerning the employer’s response to the pandemic by filing a grievance and, with his bargaining agent’s support, referring it to adjudication under s. 209(1)(a). He chose not to even ask — he specified that the bargaining agent did not refuse to represent him in this matter; rather, he chose not to seek its support. If that is the case, then by making that choice, he put himself in the position of trying to make the argument that he was terminated, suspended, or subjected to a financial penalty.\n\nConsistent with the reasoning of numerous Board and court decisions, including Frazee, Sharaf v. Deputy Head (Public Health Agency of Canada), 2010 PSLRB 34, Rogers, Hood v. Canadian Food Inspection Agency, 2013 PSLRB 49, Ho v. Deputy Head (Department of National Defence), 2013 PSLRB 114, Theaker v. Deputy Head (Department of Justice), 2013 PSLRB 163, and Price v. National Film Board, 2021 FPSLREB 105, I have determined that the grievor was not subject to any disciplinary action, disguised or otherwise; therefore, I have no jurisdiction to adjudicate these grievances under s. 209(1)(b) of the Act.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nI declare that the Board is without jurisdiction to adjudicate these grievances.\n\nThe grievances are dismissed. May 13, 2024. Nancy Rosenberg, a panel of the Federal Public Sector Labour Relations and Employment Board", + "current_to": "2024-05-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521195/index.do" + }, + { + "id": "fpslreb-521082-1", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 1–4", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This matter concerns three individual grievances filed by Larry Anderson, Harbir Boparai, and Ronald Broda (“the grievors”) on May 26 to 29, 2012.\n\nOn 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 ss. 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 s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) 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 ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.\n\nOn 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 and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board, the Federal Public Sector Labour Relations and Employment Board Act and the Federal Public Sector Labour Relations Act.\n\nFor ease of reading, the term “Board” in this decision refers to the current Board and any of its predecessors.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-2", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 5–10", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At all material times, the grievors were border services officers classified at the FB-03 group and level and employed by the Canada Border Services Agency (“CBSA” or “the employer”).\n\nThe grievances are substantively the same. Each grievance alleges that the employer failed to grant the grievors their first pay increment on the appropriate date while they were employed as full-time indeterminate employees on a seasonal basis.\n\nThe collective agreement at issue in this matter was concluded on January 29, 2009, between the Treasury Board and the Public Service Alliance of Canada for the Border Services Group bargaining unit, and it expired on June 20, 2011 (“the collective agreement”).\n\nAs for the most part the facts were not in dispute, the parties agreed to proceed by way of written submissions.\n\nThe grievors take the position that the employer’s failure to grant their first pay increments on the anniversary dates of their first appointments violated the collective agreement, which states that for full-time and part-time employees, “[t]he pay increment period for employees at levels FB-1 to FB-8 is the anniversary date of such appointment.”\n\nThe employer denies that it violated the collective agreement. It argues that the collective agreement is silent on seasonal employees, and as such, it correctly followed the Treasury Board’s Directive on Terms and Conditions of Employment (“the Directive”) and the Treasury Board’s ARCHIVED - Pay increments (PSTCER sections 27 and 29 to 45) (“the Pay Increments Policy”) when it determined that the grievors were entitled to a pay increment after a period calculated to equate 12 months of actual work in their respective positions.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-3", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 11–17", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer did not raise any timeliness objection and agrees that the grievances were properly referred to adjudication.\n\nHowever, the employer raised a preliminary objection on the basis that the grievors have advanced new arguments that were not presented during the grievance process, which it argues is prohibited based on the Burchill principle (see Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.)).\n\nIn their reply submissions, the grievors argue that the nature of the grievances remain the same and therefore the Burchill principle does not apply.\n\nFor the reasons laid out in this decision, I conclude that the employer’s preliminary objection should be dismissed and that the grievances should be allowed.\n\nThe grievors were initially appointed in Victoria, British Columbia, as border services officers classified at the FB-03 group and level (“the Victoria positions”).\n\nMr. Anderson’s letter of appointment offered him a “… full-time indeterminate appointment on a seasonal basis …” effective May 1, 2010. It stated that he was required to work from May 1 to September 30 of every calendar year. It stated that he would be required to provide services in any of the CBSA’s West Coast and Yukon District locations and that his initial assignment would be at the Victoria or Sidney, British Columbia, location. It stated that he was subject to a 12-month probationary period that excluded any off-duty periods for seasonal employees. Finally, the letter stated that his employment was subject to the “Public Service Terms and Conditions of Employment Policy and Directives”.\n\nMr. Anderson worked in that position from May 1 to September 30, 2010.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-4", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 18–22", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Boparai and Mr. Broda each received the same appointment letter as did Mr. Anderson. The only difference was that their appointments were effective one year later, on May 1, 2011.\n\nThe grievors worked together at the Victoria or Sidney port in the CBSA’s West Coast and Yukon District from May 1 to September 30, 2011.\n\nOn August 16, 2011, certain employees at the CBSA’s Sidney and Victoria ports received a message about seasonal hours. It indicated that the CBSA’s Pacific Highway District might be able to offer separate seasonal contracts for the off-season.\n\nOn September 28, 2011, the employer circulated a link to a job opportunity advertisement for the appointment of indeterminate seasonal border services officers in its Pacific Highway District. The area of selection was open to “… employees of the CBSA providing front-line public protection services (e.g. Border Services Officer) and who occupy a position in the West Coast and Yukon District”.\n\nBetween September 27 and October 1, 2011, all three grievors responded to the advertisement.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-5", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 23–25", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On October 12, 2011, each grievor received a letter from the employer, informing them of their seasonal layoff and their entitlements while on off-season status. The letter included the following statement: … SUBJECT: SEASONAL LAYOFF The purpose of this letter is to advise you of your entitlements while in off-season status.… For purposes of establishing an entitlement to severance pay, vacation leave and statutory increments; a seasonal employee is deemed to have completed one year of continuous employment for each year of seasonal employment. However, the calculation of the severance payment, vacation leave, and statutory increments includes only those periods in which the employee was actually employed or was on vacation, sick or compensatory leave. … [Emphasis in the original]\n\nAlso on October 12, 2011, each grievor received an offer for a part-time indeterminate appointment on a seasonal basis effective October 13, 2011. The letter stated that they would be required to work 30 hours per week from October 1 to April 30 of every calendar year. The letter stated that they could be required to provide services at any of the CBSA’s Pacific Highway District locations and that their initial assignment was at the Port of Douglas in Surrey, B.C.\n\nThe grievors accepted the offers of employment and started in their seasonal positions in the CBSA’s Pacific Highway District on October 13, 2011 (“the Port of Douglas positions”).", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-6", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 26–27", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On November 17, 2011, Mr. Broda wrote to the employer, inquiring whether he would be subject to two separate probationary periods since he was subject to two separate seasonal contracts. The employer responded as follows: … Your probation is considered continuous and will be considered complete as of April 2012 (after 1 year). As you are considered “dual employment” all your leave entitlements are separate for each district. Leaves(s) [sic] earned during employment with WCY cannot be carried over to the separate period of employment with Pacific Highway District, and vice versa. …\n\nOn January 13, 2012, the employer emailed the following to Mr. Anderson, responding to his inquiry into his compensation concerns: … I will try to clarify what is a confusing situation. The “system” does not recognize your previous employment. You are employed by the Pac Hwy District, and your entitlements are based on that employment; there is no connection to your employment with Victoria. Although you are employed by the same organization, you are in a way employed in two separate jobs. While you are in the Pac Hwy District your “home” port is Pac Hwy District. When you return to Victoria, that is considered your home port. The two jobs run independent of each other. Each contract runs completely independent from the other, i.e. increments, leave credits. However, because your are employed by the same organization, anything to do with compensation and benefits, comes through one office. In order to keep the “two jobs” separate, two different PRI’s were utilized.… … [Sic throughout] [Emphasis in the original]", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-7", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 28–35", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On February 29, 2012, while the grievors were working in their Port of Douglas positions, they and other staff received an email from David Rizzo, Chief, Sidney/Northern Operations, and Nina Patel, Chief, Victoria Operations, advising them that the employer would convert the seasonal staff employed at that time in Victoria or Sidney to full-time indeterminate employment on a year-round basis if they wished. The grievors did.\n\nOn March 28, 2012, the grievors received a letter to advise them of a change to their “… hours of work from Indeterminate Seasonal to Indeterminate Full-time Year-round …” effective May 1, 2012.\n\nIn or around April, 2012, the grievors resigned from their Port of Douglas positions, effective April 30, 2012.\n\nOn May 1, 2012, the grievors returned to work in Victoria or Sidney but from then on as full-time, indeterminate, year-round border services officers.\n\nMr. Anderson received his first pay increment effective June 27, 2012.\n\nMr. Boparai and Mr. Broda received their first pay increments effective November 27, 2012.\n\nThe wording in all three grievances is identical, as follows, with the sole exception of the appointment date: … I have been continuously employed with Canada Border Services Agency since May 1, 2011 [or May 1, 2010, for Mr. Anderson] and the employer has not granted my pay increment. I grieve that the employer is not compensating me according to my collective agreement and any other CBSA and Treasury Board of Canada Secretariat Policies or Regulations that may apply. …\n\nAs a corrective measure, the grievors requested the following: “I request that I be afforded the pay and benefits to which I am entitled and any other corrective action appropriate in the circumstances, and that I be made whole.”", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-8", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "para 36", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As part of the documents jointly provided to the Board, two documents entitled “Grievance Hearing” outline the points raised during the grievance process meetings held on July 7 and 8, 2012. They are for the most part identical aside from the appointment date of Mr. Anderson, which is one year earlier than those of Mr. Boparai and Mr. Broda. Those documents provide the following: … Arguments - The griev[o]rs do not meet the criteria for dual employment. Management is claiming that the employees were working under dual employment. Dual employment refers to indeterminate employees who are on approved leave without pay (LWOP), and who accept a specified period employment with another organization (see attachment 1 Specified Period Appointments during Extended Period of Leave without Pay (Dual Employment) from the Public Service Staff Relations Act – PSSRA). These employees were not on LWOP; they are laid off at the end of season and are employed by the same organization. Dual employment has a distinct home position and a host position (see attachment 2 – Definitions under PSSRA). HR stated that while they are in PacHwy District their home port is PacHwy District and when they return to Victoria; that is considered their home port. How can one have two home ports? It defeats the criteria of dual employment. In this case Victoria should be the home port and PacHwy District would be the host port. Even if they are deemed to be on LWOP, section 9 of specified period appointment states appointments that occur during LWOP are included in the calculation of continuous employment and continuous service (see attachment 3, section nine of specified period appointments during extended periods of LWOP (dual employment)).", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-9", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "para 36", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In addition the policy also states that on return to indeterminate status of the home position, periods of employment that occurred during LWOP count for the purposes of continuous employment (see attachment 4 – section 10 of specified period appointments during extended period of LWOP (dual employment)). - The probation period is continuous therefore their service and employment should be considered continuous.… - The griev[o]rs are entitled to a pay increment upon their anniversary date, supported by various policies: the FB Collective Agreement (attachment 7), Treasury Board (TB) policy on pay increment 4.1 (attachment 8), TB Definitions (attachment 9) and TB directives on terms and conditions of employment part 5 (attachment 10). - As indeterminate seasonal employees, all periods they have worked would be included in the pay increment period, TB pay increment policy 4.13 (attachment 11). The griev[o]rs would like to reiterate the following: - The griev[o]rs have been continuously employed in the core public service since May 1, 2011 [or May 2010 for Mr. Anderson]. - They are employed by the same agency, in the same region, in the same classification and the same job. The only difference is the location. - They should not have two separate anniversary dates because of this. - They should have one anniversary date which would be from the appointment date in the initial letter of offer from WC&Y District. - The probationary period was considered continuous. - Various policies state that all periods of employment during LWOP count for continuous employment and continuous service. - Management is saying that they were employed in two separate positions.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-10", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 36–37", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "- Part 4.13 of the pay increment policy states all periods during which the employee performed the duties of the position are included in the calculation of the pay increment period. Therefore the time worked in both positions should be credited towards their pay increment and benefits towards service. - It is the union’s position that management is in contravention of appendix A of the CA and the following TB policies: specified period employment during extended LWOP, TB policy on pay increment, and the directive on terms and conditions of employment. Corrective Actions - We request the griev[o]rs be afforded the pay and benefits to which they are entitled and any other corrective action appropriate in the circumstances and that they be made whole by the following: - Their time worked at both locations is recognized as continuous employment and continuous service. - That this time be merged together and included toward their pay increment and other benefits towards length of service. - That they are compensated in back pay from the anniversary of when their first pay increment would be due. - That all annual leave earned at PacHwy District be paid out and that all sick leave earned is transferred to WC&Y District if it has not been already. … [Sic throughout] [Emphasis added]\n\nThe grievors maintain that the employer violated the collective agreement when it failed to grant them their first pay increments on the anniversary dates of their first appointments.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-11", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 38–42", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to the grievors, the Board’s fundamental task when interpreting a collective agreement is to ascertain the intent of the parties by looking first to the plain meaning of the language that they agreed to. The grievors refer to Brown and Beatty, Canadian Labour Arbitration, 5th ed. (“Brown and Beatty”), at paragraph 4:21, which is the leading text on labour arbitration.\n\nThe grievors argue that the Board has followed the approach set out in Brown and Beatty in innumerable cases, including those concerning the calculation of pay increment periods. They state that the applicable canons of interpretation were usefully summarized in Cruceru v. Treasury Board (Department of Justice), 2021 FPSLREB 30.\n\nAccording to the grievors, when the collective agreement language is read in conjunction with ancillary documents such as an employer’s internal policy, those ancillary documents are separate from and subordinate to the collective agreement unless they are incorporated into it by reference.\n\nThe grievors argue that this case turns on the interpretation of the Pay Notes provisions in Appendix A of the collective agreement (“the Pay Notes”), which apply to both full- and part-time employees and state that “[t]he pay increment period for employees at levels FB-1 to FB-8 is the anniversary date of such appointment.”\n\nThe grievors argue that the plain meaning of the Pay Notes requires granting pay increments on anniversary dates.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-12", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 43–44", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "They argue that the Board has previously described pay increments as a presumptive entitlement and as a collective agreement benefit that can be ousted only if based on clear language. They state that the parties to the collective agreement set out in clear terms that a pay increment is granted on the anniversary date of an employee’s appointment. Used in its normal, ordinary sense, the key term “anniversary date” in the collective agreement refers to a single, specified date occurring once each year. That meaning applies whenever anniversary dates are used to mark historical events, milestones in a relationship, or significant occasions. That is also congruent with the online Oxford Dictionary’s definition, which defines “anniversary” as “the date on which an event took place in a previous year.”\n\nThe grievors argue that based on a plain reading of the Pay Notes, the fact that they were seasonal employees, or that they were subject to two separate seasonal appointments, is entirely irrelevant. The collective agreement does not distinguish between full- and part-time employees or between employees working on a seasonal or year-round basis. The parties to the collective agreement must be presumed to have meant what they have said expressly — all employees in those positions receive pay increments on their anniversary dates.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-13", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 45–47", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievors highlight that the parties to the collective agreement chose to modify that general rule in specific circumstances, which they did expressly. For example, the general leave provisions in clause 33.02 specify that an extended leave without pay granted to an employee for reasons other than illness will interrupt a pay increment period. Clauses 38.01(g) and 40.01(g) go on to clarify that the interruption does not apply to those on maternity or parental leave without pay. Thus, the parties to the collective agreement clearly turned their minds to what periods should and should not count toward a pay increment, and they chose not to distinguish between employees working year-round and those working on a seasonal basis. In this case, none of the defined exceptions to the general pay increment rule apply; therefore, the grievors’ pay increment period is governed by the Pay Notes.\n\nThe grievors argue that they each received full-time indeterminate appointments on May 1; therefore, the anniversary date of their appointments is May 1 of the following year.\n\nIn terms of the Directive, the grievors argue that it applies throughout the core public administration, including to term, indeterminate, part-time, and seasonal employees. Both the Federal Court and the Board have found that the Directive is incorporated by reference into collective agreements (see Broekaert v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 90). However, the Directive is fully consistent with the interpretation that the grievors advanced.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-14", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 48–49", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "They point out that the Appendix to the Directive defines a “Pay increment period” as “… in respect of a position, the period between pay increments for the position as set out in the relevant collective agreement or terms and conditions of employment.” The Directive sets out an alternative method to calculate a pay increment period but only “[w]hen the relevant collective agreement is silent …”. The collective agreement in this case is not silent but rather clearly defines the pay increment period as being based on the anniversary date of the employee’s appointment; therefore, the alternative pay increment in the Directive does not apply.\n\nThe grievors argue that the purported justification that the employer put forward relies on an outdated policy. They argue that in addition to not being incorporated into the collective agreement, the employer’s Pay Increments Policy was not even in force by the time they received their appointments. They state that the Pay Increments Policy was a guide to the Public Service Terms and Conditions of Employment Regulations (“the regulations”), which was in force from 1993 until the Directive expressly replaced the regulations on April 1, 2009. While the Pay Increments Policy sets out clear and detailed pay increment rules applicable to seasonal employees, the Directive that replaced the regulations does not. Instead, the Directive introduced in 2009 defines a pay increment period by reference to the collective agreement language. Thus, the employer purports to rely on an outdated guide to the regulations that was the predecessor to the Directive. The Pay Increments Policy is not binding on the parties or applicable in this case.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-15", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 50–51", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievors maintain that the Board should follow its previous decision in Broekaert, which bears numerous similarities to this case. The issue in that case was whether casual employees were entitled to a pay increment after 12 months of employment. As in the present case, the binding language in Broekaert (in that case, found in the Terms and Conditions of Employment Policy) clearly stated that “… the pay increment period shall be 12 months …”. However, Mr. Broekaert’s employer tried to rely on its Pay Administration Volume, which stated that pay increment periods should be prorated based on hours actually worked.\n\nIn Broekaert, the Board interpreted the Terms and Conditions of Employment Policy in accordance with its plain meaning and found no binding authority that could override it. In particular, it rejected the submission of Mr. Broekaert’s employer that its Pay Administration Volume could take precedence over the collective agreement at issue. The grievors argue that the analysis in Broekaert is on all fours with their case. The parties are bound by the collective agreement and the Directive, which is incorporated into the agreement by reference. Those documents clearly define a pay increment period, which must be applied to the exclusion of other, non-binding documents.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-16", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 52–54", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to the grievors, the employer has essentially taken the position that the grievors’ pay increment period should be prorated based on the length of the season. If the employer is correct that the summer- and winter-seasonal appointments had separate, prorated pay increment periods, then summer-seasonal border services officers appointed effective May 1 would receive their first pay increment 26 months after the dates of their initial appointments. The grievors argue that it is inconceivable that the parties to the collective agreement contemplated that result when they agreed to peg the pay increment period, for all full- and part-time employees, to the “anniversary date” of their appointments, as the collective agreement states.\n\nThe grievors argue that the central issue in this case boils down to whether the key phrase “anniversary date” in the collective agreement means what it says. They submit that it must be given its normal and ordinary meaning. To the extent that the employer’s internal policies and manuals are inconsistent with that clear language, they should be disregarded. There is no binding language that suggests an alternate meaning — for the grievors, who were appointed on May 1, the “anniversary date of such appointment”, per the collective agreement, is May 1. As such, Mr. Anderson’s first pay increment should have been granted on May 1, 2011, while that of Mr. Boparai and Mr. Broda should have been granted on May 1, 2012.\n\nThe grievors also included arguments in their submissions as to why other policies and manuals were not applicable. However, they are not reproduced in this decision since the employer did not rely on them in its submissions.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-17", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 55–58", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer states that the grievors raised new arguments at adjudication that it did not have the opportunity to address during the grievance process. According to the employer, the grievors cannot raise new arguments at adjudication based on the principles enunciated in Burchill.\n\nThe employer highlights that during the grievance process, the grievors argued that their Port of Douglas employment should have counted toward the calculation of their pay increment periods for their Victoria positions. The employer states that it rejected this argument at each level of the grievance process on the basis that each grievor worked two separate positions, and that under the collective agreement scheme, each position was subject to its own, separate pay increment period.\n\nThe employer points out that the grievors no longer contest that they worked two separate positions or that their Port of Douglas employment should count toward the pay increment periods of their Victoria positions. Rather, the grievors now argue that pursuant to the Pay Notes, they were entitled to pay increments on the anniversaries of the dates of their appointments to the seasonal Victoria positions, regardless of whether they worked in the winter off-season. The employer argues that this is a novel argument, not previously raised in the grievance process and that the grievors have changed the nature of the grievances. As a result, it argues that the grievances should be dismissed.\n\nThe employer argues that should the Board determine that it has jurisdiction to render a decision on the merits of the grievances, it properly determined the grievors’ pay increment dates according to the scheme of the collective agreement.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-18", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 59–62", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer argues that the grievors were entitled to a pay increment only after a total of 12 months of actually performing the duties of the Victoria positions. The time they spent off-season from the Victoria positions did not count toward the calculation of their 12-month pay increment periods.\n\nThe employer argues that the grievors have mistakenly construed the Pay Notes, which is a broad statement that does not address the specific case of seasonal employees who work only part of the year. It states that neither the Pay Notes nor any other part of the collective agreement mentions seasonal employees with respect to determining pay increment dates.\n\nThe employer argues that when the collective agreement is silent on an issue pertaining to pay administration, the employer can then refer to the Directive. In this case, section 5.3 of the Directive expressly provides for determining pay increment periods in cases that are not contemplated by the collective agreement. It reads as follows: “When the relevant collective agreement is silent, the pay increment period is 12 months and is calculated in accordance with this Appendix.”\n\nThe employer argues that unlike the Pay Notes, the Directive refers to an increment “period”, and states that it is for a duration of “12 months”. It states that nothing in the wording of section 5.3 of the Directive requires that the 12 months comprising the pay increment period must be consecutive. The Directive also states that the increment period “is calculated”. The employer argues that this indicates that pay increments under that section are determined through calculation, not by an automatically occurring anniversary date from the date of appointment.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-19", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 63–65", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer states that it advised the grievors how their pay increment dates would be calculated in the layoff letters for their respective summer-seasonal Victoria positions. The letters stated this: … For purposes of establishing an entitlement to severance pay, vacation leave and statutory increments; a seasonal employee is deemed to have completed one year of continuous employment for each year of seasonal employment. However, the calculation of the severance payment, vacation leave, and statutory increments includes only those periods in which the employee was actually employed or was on vacation, sick or compensatory leave. … [Emphasis in the original]\n\nThe employer states that the layoff letters clearly communicated that the 12-month pay increment period for seasonal employees was calculated based on the total periods in which a seasonal employee actually worked or was on certain types of leave.\n\nThe employer argues that the approach for calculating pay increment periods outlined in the layoff letters aligns with the approach set out in the Pay Increments Policy. Section 4.13 of the Pay Increments Policy addresses as follows how pay increment dates are determined in the case of seasonal employees: 4.13 Seasonal employees All periods during which the employee performed the duties of the position, or was on leave of absence with pay, are included in the calculation of the pay increment period. Unless otherwise provided in the relevant collective agreement, pay plan or specific terms and conditions of employment, pay increments are not affected by periods of leave without pay. Note: The off-season is not included in establishing the pay increment date. …", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-20", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 66–68", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer argues that although the Pay Increments Policy is an archived Treasury Board policy, it continues to provide guidance on matters of pay administration, as long as it has not been superseded by new policy. The employer argues that section 4.13 of the Pay Increments Policy, pertaining to seasonal employees, has not been superseded or replaced by any other policy.\n\nThe employer argues that the Treasury Board is empowered under s. 11.1(1)(c) of the Financial Administration Act (R.S.C., 1985, c. F-11; “FAA”) to “… determine and regulate the pay to which persons employed in the public service are entitled for services rendered …”. The Federal Court of Appeal recognized that this is a wide power that authorizes federal employers to “… do anything that is not expressly or implicitly prohibited by a collective agreement or a law …” (see Canada (Attorney General) v. Association of Justice Counsel, 2016 FCA 92 at para. 24; see also Brescia v. Canada (Treasury Board), 2005 FCA 236 at paras. 50 and 55; Canada (Attorney General) v. Public Service Alliance of Canada, 2017 FCA 208 at para. 14; Cooke v. Treasury Board (Department of the Environment), 2021 FPSLREB 42 at para. 28; and Broekaert, at paras. 37 to 39).\n\nThe employer argues that in this case, there was a gap in the collective agreement scheme, including the Directive, with respect to how the pay increment periods for seasonal employees should be calculated. Under s. 11.1(1)(c) of the FAA, the Pay Increments Policy filled the gap. Therefore, the employer could refer to the Pay Increments Policy when it calculated the grievors’ pay increment periods according to the time they actually worked in their Victoria positions.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-21", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 69–72", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to the employer, the grievors improperly rely on Broekaert to argue that Treasury Board policies, like the Pay Increments Policy, are inapplicable. The employer argues that unlike in Broekaert, there is no contradiction between the collective agreement’s scheme and Treasury Board policy in this case. Rather, the employer argues that the Pay Increments Policy directly supports the collective agreement scheme by clarifying how pay increments should be calculated when the collective agreement is silent and section 5.3 of the Directive applies.\n\nThe employer argues that the grievors’ reference to the Pay Increments Policy during the grievance process is a demonstration that initially, the grievors shared the employer’s view that the Pay Increments Policy was both applicable and relevant and that their pay increment dates should be calculated based on the total time they actually performed the duties of their positions.\n\nIn summary, the employer argues that it properly followed section 5.3 of the Directive and section 4.13 of the Pay Increments Policy in determining the grievors’ pay increment dates for their Victoria positions. Accordingly, the employer determined that their pay increment dates should be calculated based on the total time that they actually performed the duties of the Victoria positions, excluding the time they spent off-season.\n\nThe employer adds that the grievors’ interpretation of the collective agreement would lead to two absurd consequences.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-22", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 73–75", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "First, applying the Pay Notes to seasonal employees would lead to an absurd and unfair outcome for year-round border services officers. Seasonal border services officers would be entitled to the pay increment at the same time as their year-round colleagues, despite working only a fraction of the year. The employer argues that this would create two tiers of pay increment entitlements: an entitlement after a full year of work, and an entitlement after only one season — regardless of the length of that season. It states that the parties to the collective agreement could not have intended to create a double standard for year-round and seasonal border services officers.\n\nSecond, the employer argues that the grievors’ contention that pay increments occur automatically for all full-time and part-time employees on the anniversaries of their appointments, regardless of how much time they actually work, is at odds with the letter and spirit of clause 33.02 of the collective agreement, which provides that “… time spent on such leave [leave without pay] which is for a period of more than three (3) months shall not be counted for pay increment purposes.”\n\nThe employer argues that clause 33.02 of the collective agreement demonstrates that the pay increment date for employees under the collective agreement is not automatic in all cases. It further demonstrates that the parties to the collective agreement did not intend for the pay increment period to comprise extended periods of leave without pay during which an employee does not work. Therefore, it would be absurd for the parties to the collective agreement to have intended that the pay increment period for seasonal employees would include extended off-season periods during which they do not perform their positions’ duties.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-23", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 76–78", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to the employer, the grievors’ argument that seasonal employees are subject to automatic pay increment dates is inconsistent with the collective agreement, which must be read in its entire context and in harmony with other incorporated pay-administration provisions, such as section 5.3 of the Directive. The employer argues that it clearly communicated to the grievors how the pay increment periods for seasonal employees would be calculated, both through the layoff letters and through the publicly accessible Pay Increments Policy. As a result, the employer states that the grievors are not entitled to a shorter pay increment period than are their year-round border-services-officer colleagues.\n\nThe employer also included in its submissions a response to the arguments raised by the grievors during the grievance process (based on the 2 seasonal appointments amounting to a period of 12 months of continuous employment); however, since the grievors no longer rely on those arguments, it is not necessary to reproduce them in this decision.\n\nThe grievors maintain that based on the plain meaning of the Pay Notes, all employees, including them, receive pay increments based on the anniversary dates of their appointments. They argue that the employer’s argument that the grievors were barred from raising that argument at adjudication pursuant to the Federal Court of Appeal’s decision in Burchill fundamentally misconstrues the principle enunciated in that decision. They state that Burchill applies only when a party raises an allegation at adjudication that has “… so altered the original grievance as to change its nature and make it a new grievance”.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-24", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 79–81", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievors state the only issue during the grievance process, and now at adjudication, was and is whether the employer violated the collective agreement by failing to grant their pay increments on the appropriate dates. They state that the nature of the grievances remains the same, and therefore, the Burchill principle does not apply.\n\nThe grievors state that in Burchill, the grievance initially alleged that Mr. Burchill had indeterminate employment status and that he should not have been laid off. At adjudication, Mr. Burchill claimed for the first time that his layoff was, in fact, disguised discipline. The Federal Court of Appeal found that the adjudicator lacked jurisdiction to consider the new grievance as it had not been presented and dealt with during the grievance process, writing that “… it was not open to the applicant … either to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance complaining of disciplinary action leading to discharge …” (at paragraph 5).\n\nAccording to the grievors, Burchill prevents a grievor from attempting to introduce a new grievance at adjudication. In Schofield v. Canada (Attorney General), 2004 FC 622 at para. 16, for example, the Court prevented a grievor from introducing a claim that he had been demoted when the grievance initially claimed that he had been prematurely recalled from an overseas assignment. However, Burchill does not prevent introducing new arguments, provided that the grievance has not changed.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-25", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "para 82", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievors argue that this point is clearly set out in Delage v. Treasury Board (Department of Fisheries and Oceans), 2008 PSLRB 56. In that case, Mr. Delage alleged that his employer had failed to include a period of parental leave in the calculation of a retroactive payment, contrary to the collective agreement, entitling him to compensation. That remained the issue at adjudication, but Mr. Delage introduced a new human rights argument in support of his grievance, which led to a Burchill objection. The Board dismissed the objection on the following grounds: … 13 The grievor alleges in his grievance that the employer failed to comply with clause 18.07(c)(vii) of the collective agreement by refusing to include the period of parental leave in the calculation of the retroactive amount paid to him following the reclassification of his position. He asks that the employer correct this situation by revising the retroactive payment. 14 The grievor’s failure to present a human rights argument at the various levels of the grievance process and the fact that he only did so at the adjudication stage does not change the nature of the grievance. The details of the grievance and the corrective action requested remain exactly the same. 15 Whether or not the grievor presents a discrimination argument based on family status does not change what is at issue. In fact, the grievance is based on the interpretation of clause 18.07(c)(vii) of the collective agreement. According to the documents on file, the issue in the grievance is whether the expression “pay revision” includes a reclassification like the one that occurred in this case. A number of arguments can be advanced to consider the reclassification as a pay revision. The opposite can also be argued.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-26", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "para 82", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The parties are free to present arguments at adjudication that were not presented during the internal grievance process. 16 The rule established in Burchill is irrelevant to resolving the employer’s objection. In Burchill, the Court states that a grievance presented at adjudication cannot differ from the one presented in the internal grievance procedure. The complaint to be considered by the adjudicator must be stated in the grievance. In this case, the grievance referred to adjudication is identical to the one filed internally. In addition, the complaint is clearly stated in the grievance. … 21 In summary, the presentation of a human rights argument at adjudication, even where the argument was not presented to the employer within the internal grievance procedure, does not in any way constitute a change in the grievance as it is understood in Burchill and in the other decisions filed by the employer. 22 In the grievance filed at the first level of the grievance procedure and later referred to adjudication, the grievor clearly set out what he was accusing the employer of having done, along with the corrective action requested. Those factors are not affected by accepting a human rights argument. … [Emphasis in the original]", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-27", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 83–85", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievors argue that the analysis in Delage applies directly to the employer’s Burchill objection in this case. Each grievance alleges that the grievors were continuously employed for over one year without receiving a pay increment, that the employer failed to compensate the grievors in accordance with the collective agreement, and that the grievors ought to be compensated for the pay and benefits to which they are entitled. Like in Delage, the grievors clearly set out what they allege the employer of having done, along with the corrective action requested — the nature of the grievances remains exactly the same. The grievors argue that the issue was, and remains, whether the employer breached the collective agreement by failing to grant their pay increments on the appropriate dates. They argue that they are free to reframe their arguments and to introduce new arguments to support their position.\n\nThe grievors ask that the Board dismiss the employer’s objection.\n\nAccording to the grievors, the crux of the employer’s position on the merits of the grievances is that the collective agreement is silent with respect to when the grievors should receive their pay increments. All the employer’s arguments, and the language upon which it relies, rest on that central premise. The grievors argue that the employer’s position is fundamentally incompatible with the plain language in the Pay Notes, which define the pay increment period by reference to the anniversary date of the initial appointment.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-28", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 86–89", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievors argue that in light of this clear language, the employer cannot argue that the collective agreement is silent on the issue of pay increments or that there is a “gap in the Collective Agreement scheme” when it comes to seasonal employees. The grievors each received a “… full-time indeterminate appointment on a seasonal basis …” in their appointment letters, and the Pay Notes plainly apply to full-time employees. Nothing in the collective agreement sets out different pay increment rules for seasonal employees.\n\nThe grievors state that the employer is correct that the Pay Notes are a broad statement. However, they argue that this demonstrates that the Pay Notes were intended to apply equally to all full- and part-time border services officers, including full-time indeterminate seasonal employees. Had the parties to the collective agreement intended to exclude seasonal employees from that part of the Pay Notes provisions, they would have done so, as they did at clause 33.02, which sets out a different calculation with respect to leave entitlements for employees on approved leave without pay.\n\nThe grievors argue that given that the Pay Notes expressly define the border services officers’ pay increment period, the remainder of the employer’s arguments must be rejected.\n\nThe grievors highlight that the employer relies on the Directive, but the Directive clearly states that a pay increment period is “… the period between pay increments for the position as set out in the relevant collective agreement or terms and conditions of employment.” The Directive then goes on at section 5.3 to provide a pay increment calculation that applies only when the relevant collective agreement is silent. As such, they argue that the calculation at section 5.3 does not apply in this case.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-29", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 90–93", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievors further argue that the employer relies on its Pay Increments Policy, which was based on a document that was replaced by the Directive.\n\nAs for the letters sent to the grievors informing them of their entitlements while in off-season status, the grievors argue that those letters are irrelevant insofar as they conflict with the Pay Notes.\n\nThe grievors also note that the employer misquoted the Pay Notes in its submissions by omitting the phrase “pay increment period”. The employer stated that “[u]nlike the Pay Note [sic], the Directive refers to an increment ‘period’”. The grievors point out that this appears to be a mistake on the employer’s part, as both the Pay Notes and the Directive refer to “pay increment periods”.\n\nIn terms of the employer’s argument that the parties to the collective agreement could not have intended for border services officers working a fraction of the year to receive the same pay increments as their year-round colleagues, the grievors argue that the employer could make the same argument with respect to part-time employees, who also work fewer hours than their full-time colleagues. However, the grievors point out that under the Pay Notes, all employees receive their pay increments on the anniversary dates of their initial appointments, regardless of hours worked. They argue that this is not an absurd or unfair result but rather what the parties to the collective agreement expressly agreed to when they defined the pay increment period by reference to the “anniversary date”, rather than “12 months of year-round employment”.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-30", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 94–98", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievors argued for the first time at adjudication that they were entitled to a pay increment on the anniversary dates of their first indeterminate appointments based solely on the plain reading of the Pay Notes. The employer argues that that is contrary to what the grievors presented in their individual grievances and during the grievance process, in which they argued that they should have received their pay increments based on having been continuously employed for a period of 12 months.\n\nThe employer objects to the introduction of this “new” argument by the grievors and, relying on Burchill, argues that the grievances should be dismissed on the basis that the grievors have changed the nature of the grievances.\n\nFor the reasons that follow, I disagree.\n\nIt is worth reproducing again the grievances’ wording. They state as follows: … I have been continuously employed with Canada Border Services Agency since May 1, 2011 [or May 1, 2010, for Mr. Anderson] and the employer has not granted my pay increment. I grieve that the employer is not compensating me according to my collective agreement and any other CBSA and Treasury Board of Canada Secretariat Policies or Regulations that may apply. …\n\nAs a corrective measure, the grievors request the following: “I request that I be afforded the pay and benefits to which I am entitled and any other corrective action appropriate in the circumstances and that I be made whole.”", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-31", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 99–101", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Based on the two documents entitled “Grievance Hearing” (reproduced earlier in this decision), which purport to outline the points raised during the grievance process meetings held on July 7 and 8, 2012, the grievors argued that they “… should not have two separate anniversary dates …” and that “[t]hey should have one anniversary date which would be from the appointment date in the initial letter of offer from WC&Y District.” As corrective action, they requested to be “… compensated in back pay from the anniversary of when their first pay increment would be due.”\n\nAs was held in Delage, the Burchill decision cannot be interpreted as a blanket pronouncement preventing grievors from raising any new arguments at adjudication to support their cases. Indeed, grievors are free to raise new arguments at adjudication to support their positions, provided that those arguments do not change the nature of the dispute that the parties discussed during the grievance process.\n\nIn this case, the “new” argument to which the employer objects does not in any way change the nature of the grievances. The parties have disputed and continue to dispute the appropriate date on which the grievors were entitled to their first pay increments and the consequential pay and benefits issues that are attached to it. This is, and has always been, the fundamental issue between the parties, and the nature of their dispute has not changed by virtue of a “new” argument being brought forward to advocate that point at adjudication.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-32", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 102–106", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Whether the grievors argue that they should have received their pay increments on their first anniversary dates based on having been continuously employed, or whether they argue that they should have received their pay increments on those very dates based solely on the plain reading of the Pay Notes, it remains that they are pursuing the same dispute; i.e., they should have received a pay increment on the anniversaries of the dates on which they were first appointed. At all times, the employer knew that the exact dates of the pay increments were at issue, and it cannot genuinely claim to have been taken by surprise with respect to the nature of the dispute being pursued at adjudication.\n\nAs a result, the employer’s preliminary objection is dismissed.\n\nThe issue to be determined is when the grievors became eligible for their first pay increments.\n\nThe essential facts are not in dispute. The grievors were each appointed to an FB-03 “… full-time indeterminate appointment on a seasonal basis …” in Victoria, effective May 1, 2010, in the case of Mr. Anderson, and effective May 1, 2011, in the case of Mr. Boparai and Mr. Broda. They were required to work from May 1 to September 30 of every calendar year and were placed on a “seasonal layoff” from October 1 to April 30 of each year.\n\nIn March 2012, the grievors were advised of a change to their “hours of work” to take effect May 1, 2012, at which point they returned to their Victoria positions as full-time indeterminate employees on a year-round basis.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-33", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 107–109", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Anderson received his first pay increment effective June 27, 2012, which was approximately 26 months after his initial appointment. Mr. Boparai and Mr. Broda received their first pay increments effective November 27, 2012, which was approximately 19 months after their initial appointments. These dates represent the dates on which the grievors completed a period equivalent to 12 months of actual work at their Victoria positions.\n\nThe grievors maintain that they should have received their first pay increments on the anniversary dates of their initial appointments, which corresponds to May 1, 2011, for Mr. Anderson, and May 1, 2012, for Mr. Boparai and Mr. Broda.\n\nThe grievors base their argument on the plain and ordinary reading of the language in the collective agreement.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-34", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 110–111", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Article 62 of the collective agreement provides the pay-administration provisions. The relevant sections read as follows: ARTICLE 62 ARTICLE 62 PAY ADMINISTRATION ADMINISTRATION DE LA PAYE 62.01 Except as provided in this Article, the terms and conditions governing the application of pay to employees are not affected by this Agreement. 62.01 Sauf selon qu’il est stipulé dans le présent article, les conditions régissant l’application de la rémunération aux employé-e-s ne sont pas modifiées par la présente convention. 62.02 An employee is entitled to be paid for services rendered at: 62.02 L’employé-e a droit, pour la prestation de ses services : (a) the pay specified in Appendix A for the classification of the position to which the employee is appointed, if the classification coincides with that prescribed in the employee’s certificate of appointment …. a. à la rémunération indiquée à l’appendice A pour la classification du poste auquel l’employé-e est nommé, si cette classification concorde avec celle qu’indique son certificat de nomination […]. 62.03 (a) The rates of pay set forth in Appendix A shall become effective on the dates specified. 62.03 a) Les taux de rémunération indiqués à l'appendice A entrent en vigueur aux dates précisées. … […] [Emphasis added]\n\nPut simply, clause 62.01 means that the Treasury Board terms and conditions governing the application of pay apply, except when article 62 provides otherwise. In this case, it does.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-35", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 112–114", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Clause 62.02(a) specifies that an employee is entitled to be paid at the pay rates specified in Appendix A. It is uncontested that all three grievors were employees, and as such, pursuant to clause 62.02(a), they were entitled to the pay specified in Appendix A. Moreover, clause 62.03(a) confirms that the rates in Appendix A are effective on the dates specified in that Appendix.\n\nAppendix A details in a grid format the annual rates of pay applicable for each classification in the Border Services Group (FB). Appendix A also includes the Pay Notes that are the subject of this dispute. Among other things, these Pay Notes define the pay increment period. They read as follows: FB - BORDER SERVICES GROUP ANNUAL RATES OF PAY FB – GROUPE : SERVICES FRONTALIERS, TAUX DE RÉMUNÉRATION ANNUELS … […] PAY NOTES NOTES SUR LA RÉMUNÉRATION PAY INCREMENT FOR FULL-TIME AND PART-TIME EMPLOYEES AUGMENTATION D’ÉCHELON DE RÉMUNÉRATION POUR LES EMPLOYÉ-E-S À TEMPS PLEIN ET À TEMPS PARTIEL 1. The pay increment period for employees at levels FB-1 to FB-8 is the anniversary date of such appointment. A pay increment shall be to the next rate in the scale of rates. 1. La période d’augmentation d’échelon de rémunération pour les employé-e-s aux niveaux FB-1 à FB-8 est la date anniversaire de ladite nomination. L’augmentation d’échelon de rémunération sera au taux suivant de l’échelle de taux. … […] [Emphasis added]\n\nIn the grievors’ opinion, the language in the Pay Notes is clear. It provides that for full-time and part-time employees, the pay increment period is the anniversary date of the appointment. As a result, they believe that the fact that they were hired on a seasonal basis is irrelevant to the determination of the date of their first pay increment.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-36", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 115–118", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer, on the other hand, believes the collective agreement is silent as it relates to seasonal employees. As a result, it argues that it is necessary to turn to the Directive and the Pay Increments Policy to determine the applicable pay increment period.\n\nI am unable to agree with the employer’s argument. A plain reading of the collective agreement’s Pay Notes clearly shows that the collective agreement is not silent. Rather, it explicitly defines the pay increment period for full-time and part-time employees as being the anniversary dates of their appointments.\n\nAs the grievors noted, the rules of interpretation were recently reviewed and summarized in Cruceru as follows: … [84] As outlined in authoritative sources such as Brown and Beatty, at paragraph 4:2100, and as recognized throughout the Board’s case law, canons of interpretation such as the following guide this analysis: (1) the parties are assumed to have meant what they said, (2) the meaning and intent of the collective agreement is to be sought in its express provisions, (3) the words of a collective agreement must be given their grammatical and ordinary sense, (4) they must [sic] read in their entire context, in harmony with the scheme of the collective agreement, and (5) when the same words reappear, they are to be given the same interpretation. …\n\nBased on a plain and ordinary reading of the Pay Notes, the pay increment period is the “anniversary date” of an employee’s appointment. I believe that the term “anniversary date” is self-explanatory and that it does not leave room for debate. It is plainly what it says — a date that once set, is repeated each year.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-37", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 119–121", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Furthermore, based on a plain and ordinary reading of the Pay Notes, only two criteria must be met for an employee to be eligible for a pay increment on their anniversary date: they must (1) be a full-time or part-time employee, and (2) have been appointed at levels FB-1 to FB-8. There are no other criteria. There is no mention that an employee must actually perform the duties of their position continuously throughout the year without interruption; nor is any exception expressly made for indeterminate full-time or part-time employees who are hired to work on a seasonal basis.\n\nAs such, I find that the language of the collective agreement is clear as it relates to the pay increment period. However, when seeking to determine the intention of the parties regarding specific clauses in the collective agreement, the analysis does not stop there. As pointed out in Brown and Beatty, at paragraph 4:21, adjudicators must also ensure that the interpretation of specific clauses in a collective agreement is in harmony with the rest of the agreement and would not result in absurd or inconsistent outcomes. It reads as follows: In searching for the parties’ intention with respect to a particular provision in the agreement, arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense unless to do so would lead to some absurdity or inconsistency with the rest of the collective agreement, or unless the context reveals that the words were used in some other sense.…\n\nThe employer argues that the exception highlighted in Brown and Beatty applies in this case. It argues that applying the Pay Notes to seasonal employees would lead to an absurd and unfair outcome for year-round border services officers.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-38", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 122–123", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer argues that seasonal border services officers would be entitled to the pay increment at the same time as their year-round colleagues, despite working only a portion of the year. It argues that the parties to the collective agreement could not have intended to create a double standard for year-round and seasonal border services officers.\n\nHowever, as the grievors point out, this so-called double standard already exists as both full-time and part-time employees benefit from a pay increment on their anniversary dates despite the fact they do not work the same number of hours in a year. I also observe that it is entirely possible that a seasonal employee could work the same number of hours as a part-time employee over the course of a year, with the sole difference being how the employer assigned the hours that were worked. As such, I cannot agree that applying the plain language of the collective agreement to the grievors would lead to an absurd outcome, as argued by the employer.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-39", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 124–125", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer also points to clause 33.02 of the collective agreement and argues that the grievors’ interpretation is at odds with it and would lead to another absurdity or inconsistency with the collective agreement. Clause 33.02 is located in the general leave section of the collective agreement and provides as follows: 33.02 Except as otherwise specified in this Agreement: 33.02 Sauf disposition contraire dans la présente convention : (a) where leave without pay for a period in excess of three (3) months is granted to an employee for reasons other than illness, the total period of leave granted shall be deducted from “continuous employment” for the purpose of calculating severance pay and from “service” for the purpose of calculating vacation leave; a. lorsqu'un congé non payé est accordé à un employé-e pour une période de plus de trois (3) mois pour un motif autre que la maladie, la période totale du congé accordé est déduite de la période d' « emploi continu » servant à calculer l'indemnité de départ et de la période de « service » servant à calculer les congés annuels; (b) time spent on such leave which is for a period of more than three (3) months shall not be counted for pay increment purposes. b. le temps consacré à un tel congé d'une durée de plus de trois (3) mois ne compte pas aux fins de l'augmentation d'échelon de rémunération.\n\nThe employer argues that this demonstrates that the pay increment date is not automatic in all cases and that the parties to the collective agreement did not intend for the pay increment period to comprise extended periods of leave without pay during which an employee is not working.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-40", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 126–128", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I agree with the employer to the extent clause 33.02 creates an exception to the general rule in the Pay Notes. Indeed, looking at the entire scheme of the collective agreement, it is clear that the parties to the collective agreement turned their minds to creating an exception to a pay increment occurring on one’s anniversary date. This exception is explicitly detailed in clause 33.02 and excludes from the calculation of a pay increment period time granted to an employee of leave without pay for more than three months, other than sick leave (or maternity or parental leave without pay granted under clauses 38.01(g) and 40.01(g)). However, since the grievors were technically on seasonal layoff from their Victoria positions, this exception does not apply to them.\n\nThe parties to the collective agreement could have extended the exception in clause 33.02 to periods of seasonal layoff; however, they did not. The fact that they chose to limit the exception to pay increments occurring on an anniversary date to only certain periods of leave without pay in excess of three months does not appear absurd given that these periods of leave without pay are at an employee’s request. This stands in stark contrast to periods of layoff which are unilaterally imposed by the employer.\n\nOnce again, I do not believe that applying the plain language of the collective agreement to the grievors would result in an absurd outcome or inconsistent application of the collective agreement as the employer suggested in relation to clause 33.02. To the contrary, the employer’s position would result in the need to read into the collective agreement an exception that does not exist. As a decision maker, I do not possess that authority.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-41", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 129–132", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The scope of a decision maker’s authority in a case as the one before me was summarized well in Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, in which the Board stated this at paragraph 50: 50 I start with the trite but true observation that my authority as an adjudicator is limited to and by the express terms and conditions of the collective agreement. I can only interpret and apply the collective agreement. I cannot modify terms or conditions that are clear. Nor can I make new ones. The fact that a particular provision may seem unfair is not a reason for me to ignore it if the provision is otherwise clear ….\n\nIn this case, the Pay Notes are very clear. They provide that for full-time and part-time employees at levels FB-1 to FB-8, the pay increment period is the anniversary date of such appointment. The collective agreement provides for a sole exception to the pay increment period occurring on the anniversary date of an employee’s appointment. It is clause 33.02. It excludes from the calculation of the pay increment period any leave without pay granted to an employee of more than three months, other than sick leave (or maternity or parental leave under clauses 38.01(g) and 40.01(g)).\n\nI find no reason why the provisions of the collective agreement as it relates to the pay increment period should not be applied as just stated.\n\nThe grievors were all hired as FB-03 employees in “full-time indeterminate appointments”. The fact that the appointments were on a seasonal basis does not change that the grievors were appointed as full-time employees. Had the employer not wished for them to benefit from the entitlements of full-time employees, it could have hired them on a different basis. It did not.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-42", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 133–135", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Since the grievors were hired as full-time employees, they are covered by the plain wording of the Pay Notes that applies to full- and part-time employees. Further, the exception in clause 33.02 does not apply to them as they were not on a granted leave of absence without pay during their off season from their Victoria positions.\n\nI conclude and find that the grievors were entitled to pay increments on the anniversary dates of their respective appointments to the Victoria positions, being May 1, 2010, for Mr. Anderson, and May 1, 2011, for Mr. Boparai and Mr. Broda. Therefore, Mr. Anderson was entitled to his first pay increment on May 1, 2011, and Mr. Boparai and Mr. Broda were both entitled to their first pay increment on May 1, 2012.\n\nSince the Pay Notes’ language is clear, and based on the application of clauses 62.01, 62.02(a), and 62.03(a), any reliance on external directives or manuals would violate the collective agreement. On this point, I find that Broekaert is entirely distinguishable since the collective agreement language in that case was silent, which made it necessary to refer to external documents to make a determination. That is not so in this case.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-43", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "paras 136–142", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "However, had I concluded that the collective agreement was silent as it relates to the grievors, the outcome would have been the same, since section 5.3 of the Directive provides “[w]hen the relevant collective agreement is silent, the pay increment period is 12 months and is calculated in accordance with this Appendix”. As the Appendix to the Directive does not address how a pay increment period should be calculated for full-time employees hired on a seasonal basis, the grievors would have been entitled to a pay increment 12 months after their initial appointments. The Pay Increments Policy would have been of no assistance since it purports to apply and interpret the regulations that were explicitly replaced by the Directive effective April 1, 2009. Therefore, it stands to reason that the Pay Increments Policy was likewise replaced by the Directive.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe employer’s objection based on the Burchill principle is dismissed.\n\nThe grievances are allowed.\n\nI order the Treasury Board to recalculate Mr. Anderson’s salary and any related benefits based on his first pay increment occurring on May 1, 2011.\n\nI order the Treasury Board to recalculate Mr. Boparai’s and Mr. Broda’s salaries and any related benefits based on their first pay increment occurring on May 1, 2012.\n\nI order the Treasury Board to pay the grievors the difference between the amounts recalculated under paragraphs 140 and 141 respectively of this decision and the amounts that were paid to them before those recalculations were made, less the customary deductions, within 60 days of this decision.", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-521082-44", + "doc_type": "caselaw", + "act_code": "2023 FPSLREB 75", + "act_short": "Anderson", + "act_name": "Anderson v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Anderson v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 75", + "marginal_note": "para 143", + "heading": "CBSA grievance; interpretation of the FB-group collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The Board will remain seized for a period of 90 days of the issuance of this decision with respect to any issues that arise with the calculation of the amounts referred to in paragraphs 140, 141 or 142 of this decision. July 31, 2023. Audrey Lizotte, a panel of the Federal Public Sector Labour Relations and Employment Board", + "current_to": "2023-07-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/521082/index.do" + }, + { + "id": "fpslreb-520948-1", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 1–5", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This decision is issued at the same time as its companion decision White v. Treasury Board (Correctional Service of Canada), 2022 FPSLREB 52. Together, they offer a reformulation and simplification of the principles set out in Vallée v. Treasury Board (Royal Canadian Mounted Police), 2007 PSLRB 52, for determining whether an employer has violated a prohibition contained in section 147 of the Canada Labour Code (R.S.C., 1985, c. L-2; “the Code”).\n\nIn this matter, Alex Burlacu (“the complainant”) made what is generally called a “reprisal complaint” under s. 133 of the Code. Mr. Burlacu is a senior program officer with the Canada Border Services Agency (“CBSA”). He alleged that Andrew LeFrank, then a director general for the CBSA, threatened to discipline him for actions he took in relation to a health and safety issue in his workplace, in contravention of s. 147 of the Code. These provisions fall within Part II of the Code, which governs health and safety in the federal public service and federally regulated workplaces.\n\nOn February 19, 2019, Mr. Burlacu provided the CBSA with a violence-in-the-workplace notice, pursuant to the Canada Occupational Health and Safety Regulations (SOR/86-304). Related to that notice, on March 4, 2019, he exercised his right to refuse unsafe work, pursuant to s. 128(1) of the Code.\n\nIn response to these actions, the CBSA arranged for Mr. Burlacu to report to a different manager on an interim and temporary basis. During several discussions that followed, most of which took place via email, the complainant questioned and challenged management’s decision to require the change in reporting relationship.\n\nEventually, on March 19, 2019, Mr. LeFrank ordered Mr. Burlacu to report to the new supervisor or face possible disciplinary action.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-2", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 6–8", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On April 30, 2019, Mr. Burlacu made this complaint, alleging that the March 19, 2019, order violated s. 147 of the Code. As corrective action, the complainant requested that Mr. LeFrank’s order be set aside so that he could return to the duties of his substantive position.\n\nThe Treasury Board is the complainant’s legal employer: see s. 240(c), and the definition of “employer” in s. 2(1), of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). As s. 147 of the Code imposes a prohibition on an employer, the Treasury Board is the respondent to the complaint.\n\nIn this decision, “the Board” refers to the Federal Public Sector Labour Relations and Employment Board and its predecessors.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-3", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 9–10", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I will quote more extensively from the relevant provisions of the Code in the reasons that follow, but for introductory purposes, I want to highlight the following portions of s. 147: 147 No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee … 147 Il est interdit à l’employeur de congédier, suspendre, mettre à pied ou rétrograder un employé ou de lui imposer une sanction pécuniaire ou autre ou de refuser de lui verser la rémunération afférente à la période au cours de laquelle il aurait travaillé s’il ne s’était pas prévalu des droits prévus par la présente partie, ou de prendre — ou menacer de prendre — des mesures disciplinaires contre lui parce que : […] (c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part. c) soit il a observé les dispositions de la présente partie ou cherché à les faire appliquer. [Emphasis added]\n\nThe complainant argued that there was a direct link between the exercise of his rights under the Code and the threat of discipline, in violation of s. 147, and that the complaint be allowed.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-4", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 11–12", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondent argued that no threat of discipline was made. All Mr. LeFrank did was caution Mr. Burlacu about the implications if he did not report to the new manager. Alternatively, if the March 19, 2019, direction amounted to a threat of discipline, then it was not linked to the complainant’s exercise of rights under the Code but to his refusal to cooperate with a change in reporting relationship, a change that the employer was authorized to make. Either way, the respondent did not violate s. 147, it argued.\n\nThe underlying events of this case have led to multiple administrative and legal actions on the part of the complainant, which are proceeding or have proceeded in front of several decision makers. After the passage of three years, the workplace-violence notice is still awaiting investigation by a competent person. Some related grievances presented to the CBSA are now the subjects of judicial reviews in front of the Federal Court or the Federal Court of Appeal. A finding that there was “no danger” with respect to the complainant’s March 4, 2019, work refusal was the subject of a decision rendered by the Occupational Health and Safety Tribunal of Canada (Burlacu v. Canada Border Services Agency, 2021 OHSTC 4; “Burlacu 2021 (OHSTC)”).", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-5", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 13–16", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "While these other proceedings are not before the Board, much of the evidence in this matter is intertwined with evidence that may be related to these other proceedings. For example, in Burlacu 2021 (OHSTC), the seven-page summary of evidence at paragraphs 3 to 16 overlaps entirely with the evidence put before the Board in this matter. The emails exchanged between the complainant and his manager in February and March 2019 contain extensive arguments about the employer’s rights and responsibilities under the Code, several of which relate directly to the complainant’s arguments before me.\n\nTherefore, while the essential facts of this case are relatively simple, reporting them and the parties’ arguments in this case is more complex and multilayered. I have endeavoured to accurately report the scope of the parties’ evidence and arguments while respecting the limits of the Board’s mandate.\n\nThe challenge before me is to consider the broader context of the events while limiting my decision to one issue: Did the respondent violate s. 147 of the Code?\n\nAs will be detailed in the reasons that follow, when an employee makes a work refusal under the Code and subsequently makes a complaint under s. 133 in relation to that work refusal, the respondent bears the burden of proving that there was no violation of s. 147.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-6", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 17–22", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I find that the respondent has met that burden. While I agree with Mr. Burlacu that he was threatened with discipline, the respondent has satisfied me, on a balance of probabilities, that this threat was not because of Mr. Burlacu’s work refusal under the Code. The CBSA sought to put into place a change in reporting relationship that would temporarily provide a safe work environment for the complainant. The evidence shows that Mr. Burlacu was seeking a different interim solution, such as being granted leave with pay for other reasons. He went to considerable effort to question and challenge the employer’s authority to direct the change in reporting relationship. The threat of discipline was based on a perception by Mr. LeFrank of possible insubordination on the part of Mr. Burlacu, not to his work refusal under the Code.\n\nThe respondent called Mr. LeFrank as its witness. At the time of the events in question, Mr. LeFrank was Director General of Enforcement and Intelligence Operations at the CBSA. He testified that in that position, he had some 150 direct and 2000 indirect reports across the country. Mr. Burlacu was an indirect report.\n\nIn February and March 2019, Mr. LeFrank had the lead role in responding to Mr. Burlacu’s workplace-violence notice and work refusal. Most of the correspondence referenced in the chronology that follows involved email exchanges between the two of them.\n\nMr. LeFrank retired from the CBSA in May of 2019; he testified that his last actual day of work was March 28, 2019, just shortly after the events in question.\n\nThe complainant testified for himself.\n\nI will make two procedural notes before summarizing the evidence.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-7", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 23", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At one point during the hearing, the complainant began to testify about the meaning of certain email exchanges between him and Mr. LeFrank. The respondent objected to this testimony on the basis that the complainant was not following the rule in Browne v. Dunn, 1893 CanLII 65 (FOREP), which requires that a party intending to challenge the credibility of a witness by putting forward contradictory evidence must put that contradictory evidence to that witness. The complainant had not questioned Mr. LeFrank about those emails when he was cross-examining Mr. LeFrank. After the rule was explained to Mr. Burlacu, I allowed the complainant to continue his testimony, provided that the respondent be allowed to recall Mr. LeFrank to testify further about the document in question. The respondent did recall Mr. LeFrank, and the complainant was also given the right to cross-examine further Mr. LeFrank during that recall testimony.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-8", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 24–25", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I will also note that in the case management process before the hearing, the complainant took the position that the content of his workplace-violence notice was not relevant to the issues before the Board. Alternatively, if the respondent were to claim that the threat of discipline was related to the workplace-violence notice, then all documents related to that notice should be produced to him, he argued, and the Board should order their pre-hearing production. I ruled that the content of the notice was arguably relevant and ordered the respondent to produce to the complainant all documents related to it. At the hearing, the complainant included the workplace-violence notice in his book of documents and testified about it, and it was accepted as evidence. I note that in other parts of the documentary evidence, the complainant took the position that his workplace-violence notice and work refusal were inextricably linked.\n\nAlthough they did not appear as witnesses, three other CBSA employees were referenced frequently in the testimony and documentary evidence before me. The three employees and their work relationships to the complainant and Mr. LeFrank at the time of the events in question were as follows: · Mehdi Ghaani, Acting Manager of the Operations Branch, and Mr. Burlacu’s direct supervisor; · Sharon Spicer, Director of Inland Enforcement Operations and Case Management, Mr. Ghaani’s manager, and a direct report to Mr. LeFrank; and · Brett Bush, Director of Inland Enforcement Program, an alternate work unit, and a direct report to Mr. LeFrank.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-9", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 26–29", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The summary of evidence that follows is based on witness testimony and documents entered into evidence. Facts not in dispute are summarized without referencing the source. For any conflict in the evidence, I make specific reference to what I heard from different witnesses.\n\nIn the following sections, I will first summarize the chronology of events, followed by a few additional points of evidence that do not fit easily into the chronology.\n\nOn February 7, 2019, Mr. Burlacu made a request to Mr. Ghaani for the approval of leave with pay to attend a Federal Court proceeding that he was involved in with the CBSA. He made the request under article 52 of his collective agreement, “… leave with or without pay for other reasons”. On February 11, 2019, Mr. Ghaani denied the leave request. In the course of the next two days, an exchange of more than a dozen emails took place. During this exchange, Mr. Ghaani maintained his position that the leave requested would not be approved under article 52 and that Mr. Burlacu would have to take some other form of leave (vacation, compensatory leave, etc.). During this exchange, Mr. Ghaani also told Mr. Burlacu that any unauthorized absence, without approved leave, could result in disciplinary action.\n\nI will note that the respondent objected to this exchange of emails being entered in evidence, on the basis that it preceded any exercise of rights under the Code by the complainant. I allowed the exchange to be entered as I found it provided context for the events that followed. I also note that in the exchange, Mr. Burlacu indicated to Mr. Ghaani that he was considering exercising his rights under the Code.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-10", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 30–32", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On Tuesday, February 19, 2019, at 1:51 p.m., Mr. Burlacu provided a violence-in-the-workplace notice, pursuant to the Canada Occupational Health and Safety Regulations. It was given to Mr. Ghaani. The notice alleged workplace violence due to a “pattern of behaviour” by management with respect to leave requests. The notice alleged that management consulted Labour Relations on “every request” made by Mr. Burlacu and alleged that the CBSA was failing to “… treat [him] in accordance with the values of the public sector ….”\n\nMr. Ghaani’s response, at 3:41 p.m., indicated that he and the complainant had met to discuss leave approval issues. He explained that most of the complainant’s leave requests had been addressed but that he needed more time to respond to his request for leave with income averaging. He also indicated that since the violence-in-the-workplace notice related to him, he was referring the notice to Ms. Spicer.\n\nMs. Spicer responded at 4:27 p.m. She acknowledged receipt of the violence-in-the-workplace notice and indicated that she took Mr. Burlacu’s allegations as very serious. She authorized him to take leave with pay for the rest of February 19 and for the following day, Wednesday, February 20. The complainant replied at 4:37 p.m., agreeing to the short-term plan. He also indicated that his email to Mr. Ghaani should not be taken as a complete list of the issues that had led to his allegation of workplace violence.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-11", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 33–35", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Burlacu returned to work on Thursday, February 21. He met with Mr. LeFrank that morning and again the next day. They began a discussion of interim measures. Following these meetings, at 11:14 a.m. on February 22, Mr. Burlacu sent an email to Mr. LeFrank, asking to be informed about what steps would be taken in the interim to protect him from the workplace violence. He also stated that he was prepared to fully participate in the investigation into his workplace-violence notice.\n\nOn Monday February 25, the complainant had a compressed day off work. At 9:20 a.m. that morning, he sent Mr. Ghaani an email indicating that on the advice of his doctor, he would be away from the office until March 4, 2019. He testified that he was compelled to make this request to Mr. Ghaani because Mr. LeFrank had not accepted his proposal to report directly to him. Mr. LeFrank testified that it would have been acceptable for this leave request to have been made directly to him.\n\nAlso on Monday, February 25, at 9:23 a.m., Mr. LeFrank wrote a follow-up email to Mr. Burlacu’s summary of their meeting on February 22. In it, he said, “In order to arrive at an interim solution I may need to identify another person to whom you can report temporarily and who is not included in the scope of the investigation. That may require a list of names from you. I hope to have an answer for you today.”", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-12", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 36–41", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant testified that he did not see Mr. LeFrank’s February 25 email until he returned to work on March 4, 2019. He sent an email that morning at 9:29 a.m., stating this: … … I cannot see how I can continue to perform employment-related activities (especially requesting leave) absent some measures being taken by the Employer, even on an interim basis, to limit my exposure to the circumstances that gave raise to my work place violence complaint. …\n\nHe also indicated that he was about to have a conversation with an advisor from the Informal Conflict Management System program.\n\nOn Monday, March 4, 2019, at 10:35 a.m., Mr. Burlacu exercised his right to refuse work pursuant to s. 128(1) of the Code, based on the following perceived danger: … · the imminent threat to my mental health arising out of the requirement to continue to perform my employment-related activities (especially requesting leave) in the absence of any measures being taken by the Employer, even on an interim basis, to limit my exposure to the circumstances that gave raise to my work place violence complaint. …\n\nThe work refusal was made to Mr. Ghaani, who then forwarded it to Ms. Spicer. He asked her if Mr. Burlacu could be removed from the team as soon as possible.\n\nOn March 4, at 11:18 a.m., Mr. LeFrank wrote to Mr. Burlacu and explained that to identify an appropriate interim reporting relationship, he needed a list of the individuals related to the workplace-violence notice.\n\nOn March 4, at 12:09 p.m., Mr. Burlacu identified Mr. Ghaani, Ms. Spicer, and any labour relations advisor or advisors assisting them in providing responses to his requests as the individuals related to the workplace-violence notice.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-13", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 42", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On Tuesday, March 5, at 3:47 p.m., Mr. LeFrank wrote an email to Mr. Burlacu in response to the workplace-violence notice and his subsequent work refusal. In this email, he · communicated his responsibility for ensuring that employees have a safe and healthy work environment; · acknowledged that Mr. Burlacu’s immediate supervisor and director were related to the workplace-violence notice (i.e., Mr. Ghaani and Ms. Spicer); · explained that an interim and temporary solution had been identified, which was reporting to the director of inland enforcement programs (i.e., Mr. Bush), and in determining the assignment, he took into consideration Mr. Burlacu’s safety and mental health and the need to provide meaningful work until a formal investigation was completed; · explained why it would not be appropriate for Mr. Burlacu to report directly to him, given his schedule and volume of emails, and said that given their mutual agreement to engage in informal conflict management he did not think a direct reporting relationship appropriate, as it might jeopardize the success of that process; · acknowledged Mr. Burlacu’s concerns about being “pushed out” of the Case Review section and explained that a temporary change in reporting relationship was necessary, given the workplace-violence notice and the subsequent work refusal and alleged threats to his mental health; and · with respect to Mr. Burlacu’s proposal to be placed on leave with pay, said that he could not approve it as “… there is no precedent or authority to provide … leave with pay pending an informal-conflict-management process or investigations of violence.”", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-14", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 43–45", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On Tuesday, March 5, at 7:01 p.m., Mr. Burlacu responded. In this email, he · argued that Mr. LeFrank had authority to grant leave with pay under s. 11.1(1)(c) of the Financial Administration Act (R.S.C., 1985, c. F-11); · reiterated his belief that management’s actions or inactions toward him and his legitimate requests were taken with the goal of pushing him out of the unit; · emphasized that his workplace-violence notice related to psychological violence “… in the course of exercising managerial authority …”; · described the temporary reporting relationship as a “temporary solution” rather than an “assignment”; · requested to remain in his current cubicle and attend weekly meetings of the Case Review Unit; and · took the position that any further delay in answering his request for leave with income averaging was a continuation of workplace violence.\n\nOn Wednesday, March 6, at 2:16 p.m., Mr. LeFrank promised to respond the next day with respect to the request for leave with income averaging and the requests about the interim change in reporting.\n\nOn Thursday, March 7, at 5:21 p.m., Mr. LeFrank wrote to explain that: · Mr. Burlacu’s request to remain in his current cubicle was approved; · his request to attend weekly meetings of the Case Review Unit was not approved, given the need to separate him from the manager of that unit (i.e., Mr. Ghaani), to protect him from the alleged workplace violence; · the effective date of the change in reporting relationship would be Monday, March 11, 2019.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-15", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 46", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On Thursday, March 7, at 7:46 p.m., Mr. Burlacu responded by email. Unlike the previous emails in this chain, in which the subject line was blank, this reply included a subject, “Continued refusal – subsection 128(9) of the Canada Labour Code”. In this email, he · questioned whether Mr. LeFrank’s emails represented the immediate action that the employer was taking pursuant to s. 128(8) of the Code (i.e., if the employer agrees there is a danger, to take action to protect the employee from the danger), and if so, requested a copy of the written report setting out the results of the investigation conducted pursuant to s. 128(7.1); · stated that he was continuing his work refusal pursuant to s. 128(9), given management’s refusal to allow him to attend team meetings and not to grant him leave with pay; and · questioned the legal authority of the employer to remove him from his position, pursuant to s. 49 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the PSEA”).", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-16", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 47–49", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. LeFrank testified that on March 8, 2019, he provided Mr. Burlacu with what he called the “stage one investigation report” with respect to the work refusal (i.e., the report required by s. 128(7.1)). The decision listed in the report was one of “No Danger”. He recalled that Mr. Burlacu did not understand how the employer could conclude that there was no danger but still proceed with a change in reporting relationship. He testified that while he had found no danger, he did not dismiss Mr. Burlacu’s view that there was a danger, and that he wanted an investigation by a competent person to proceed so that Mr. Burlacu could return to his position in a situation in which he did not feel threatened. He testified that he had difficulty understanding Mr. Burlacu’s allegations of violence, which is why he wrote these comments in his investigation report: “The nature of these allegations do not align with work refusals normally investigated at the Agency. Further, the alleged workplace violence is not experienced by other persons in the unit even though they are operating in the same environment.”\n\nOn Friday, March 8, at 5:38 p.m., Mr. Burlacu wrote again to Mr. LeFrank, following their meeting. In this email, he · thanked Mr. LeFrank for emphasizing to Mr. Bush the importance of the complainant remaining in his current cubicle; · wrote that he did not view Mr. Ghaani’s presence at team meetings as an exercise of his managerial authority but that he was willing to accept the solution of attending those Case Review meetings that Mr. Ghaani would not attend; and · accepted the interim and temporary solution and abandoned his refusal to work, effective immediately.\n\nMr. Burlacu testified that as of March 11, 2019, he began reporting to Mr. Bush.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-17", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 50", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On Tuesday, March 12, at 10:42 a.m., Mr. LeFrank wrote to Mr. Burlacu. In this email, he wrote as follows: … As a point of clarification, having received my work refusal stage one investigation report are you agreeing with my findings that there is no danger in which case there would be no need for an interim temporary reporting arrangement or do you disagree with my findings, continue to require an interim temporary arrangement, and the work refusal continues for the regular reporting relationship of your substantive position? This is important for me to know in order to refer your work refusal to a labour investigator that will likely conclude more quickly than the violence in the workplace complaint. …", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-18", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 51", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On Wednesday, March 13, at 10:37 a.m., Mr. Burlacu wrote back to Mr. LeFrank, responding to the email of March 12 and referencing a discussion they had that day. In this email, he · stated that he no longer believed the matter to be resolved and that pursuant to s. 128(9) of the Code, he was continuing his right to refuse work; · restated his view that a danger existed and that his agreement to the interim solution was predicated on that; · questioned how Mr. LeFrank could determine that no danger existed while maintaining the need for a temporary assignment; · said, With respect, I cannot see how the work refusal can be regarded as separate from the work place violence complaint, when the work refusal was specifically premised on the failure of the Employer to take any measure to “limit my exposure to the circumstances that gave raise to my work place violence complaint.”; · questioned the authority of the employer to unilaterally assign other duties and said that he had been refusing since summer of 2017 to be pushed out of his unit through harassment and now psychological violence; and · rejected the temporary work arrangement and said that “… if you are ordering me to report to Mr. Bush, please do so explicitly [and] indicate what the legal basis is for such an order ….”", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-19", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 52–54", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On Friday, March 15, at 4:15 p.m., Mr. LeFrank wrote to Mr. Burlacu. In this email, he · indicated that the temporary interim reporting relationship was initiated and put in effect as a result of the workplace-violence notice; · explaining why he had asked for clarification, said that he had expected a rejection of the stage one investigation finding of no danger, and therefore expected it to go to a “labour investigator” due to confidentiality concerns, but that he was subsequently informed that the Work Place Health and Safety Committee needed to investigate; · indicated that his authority to assign other work was under s. 129(5) of the Code; and · confirmed his direction that Mr. Burlacu report to Mr. Bush until the workplace-violence notice was resolved.\n\nOn Tuesday, March 19, at 9:45 a.m., Mr. Burlacu wrote back to Mr. LeFrank. In this email, he challenged the authority of the employer to assign other work under s. 129(5) of the Code because that section is triggered by the employee’s exercise of rights under s. 129(1.3), which he had not done. He also reiterated his interest in using the informal-conflict-management process to resolve the matters in dispute.\n\nLater that day, at 3:41 p.m., Mr. LeFrank wrote that in addition to s. 129(5), he had the authority to assign other work under the “general duty clause” of the Code, at s. 124 (which states that the “… employer shall ensure that the health and safety at work of every person employed by the employer is protected”) and under s. 128.1(3) (“An employer may assign reasonable alternative work to employees who are deemed under subsection (1) of (2) to be at work.”).", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-20", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 55–58", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Two hours later, at 5:41 p.m., Mr. Burlacu wrote to Mr. LeFrank. In this email, he · disagreed with Mr. LeFrank’s assertion that s. 124 provides the employer with the “… unilateral authority to remove me from a position to which I have been appointed by the Public Service Commission …”, particularly after finding that there was no danger; · challenged Mr. LeFrank’s reliance on s. 128.1(3) because that fell under the section dealing with employees on shift during a work stoppage; and · requested a meeting the following day.\n\nMr. LeFrank’s response to that email is the subject of this complaint. Dated March 19, 2019, at 5:54 p.m., he wrote the following to Mr. Burlacu: Alex - I will not be meeting with you tomorrow. The situation is clear. You will report immediately to Mr. Bush. Failure to comply with this direction may result in disciplinary action as I find it to be insubordination. …\n\nOn March 21, 2019, the Work Place Health and Safety Committee completed its stage II investigation report into Mr. Burlacu’s work refusal. The committee concluded that there was “No Danger” but also noted, “Although this investigation has ruled that there is no reasonable danger to employees, the conclusion has been made that the complainant believes his mental well-being is in danger.”\n\nOn March 22, 2019, Mr. Burlacu and Mr. LeFrank participated in an informal-conflict-management session in an effort to resolve the issues in dispute.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-21", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 59–61", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On March 24 and 25, 2019, Mr. Burlacu and Mr. LeFrank exchanged several more emails, in which they discussed the relationship between the workplace-violence notice and the work-refusal process, the employer’s response to the stage II report, and the alternate reporting relationship to Mr. Bush. Mr. Burlacu testified that in these emails, he gave Mr. LeFrank two opportunities to deny that his email of March 19, 2019, was a threat made because the complainant had exercised the right that the Code gave him to refuse to work, and that Mr. LeFrank did not deny that.\n\nOn March 25, at 1:59 p.m., Mr. LeFrank wrote this: “I have agreed to continue to keep the temporary interim reporting arrangement in place until the conclusion of the complaint investigation or should you choose, you consider the matter resolved.”\n\nIn reply, on March 25, 2019, at 5:13 p.m., Mr. Burlacu stated that he had complied with the order of March 19 to report to Mr. Bush but added, “I am now of the view that this threat was made so as to prevent me from fully exercising my rights under s. 128.” He stated his belief that this rendered any further proceedings under s. 128 moot and concluded with the following: … … Therefore, I cannot see how I have any choice other than to comply with your order, regardless of the fact that I absolutely disagree with the finding of ‘no danger,’ the manner in which the investigations were conducted, both at stage I and II, and your reliance on section 124 to explain your order that I report to Mr. Bush. …", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-22", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 62–65", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Following the results of the stage II investigation by the Work Place Health and Safety Committee, Mr. Burlacu’s work refusal was referred to “the Labour Program” on March 26, 2019. The official conducting that review is called the “ministerial delegate”. Her report was completed on April 3, 2019, and confirmed the finding of “no danger”. This report was the subject of Mr. Burlacu’s appeal to the Occupational Health and Safety Tribunal of Canada in Burlacu 2021 (OHSTC).\n\nAs already noted, Mr. LeFrank’s last day of work at the CBSA, before his retirement, was March 28, 2019.\n\nMr. Burlacu made his complaint under s. 133 of the Code to the Board on April 30, 2019, directly in relation to the content of Mr. LeFrank’s email of March 19, 2019.\n\nI want to summarize five additional points of evidence that do not fit easily into the chronology of events.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-23", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 66–67", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "First, Mr. Burlacu testified about what he saw as a pattern in which managers were alleging insubordination on his part, leading up to the use of that word in Mr. LeFrank’s March 19, 2019, email. He cited content from a harassment complaint he made against Ms. Spicer on March 27, 2019. He took me to that complaint, which lists more than 25 incidents between September 2017 and the date of that complaint. He testified about two of these incidents in particular. The first was in September of 2017, when Ms. Spicer is alleged to have commented that he was “bordering on insubordination” for continuing to request written confirmation of who his manager was. The second was in April of 2018, in which the Director General of Labour Relations, following a review of multiple grievances filed by Mr. Burlacu, is alleged to have harassed him by writing in an email that the complainant “… ‘often question[s] management decisions to the point of near insubordination.’ ”\n\nMr. Burlacu testified that he also made these same allegations in a January 31, 2019, harassment complaint against two labour relations officers. That complaint also alleged harassment by Labour Relations staff for having concluded that he “… ‘often question[s] management decisions to the point of near insubordination’ ” and for sharing that information with his managers.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-24", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 68–69", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In relation to the harassment complaint of January 31, 2019, I take note that it was the subject of a decision of the Federal Court in Burlacu v. Canada (Attorney General), 2021 FC 339. The emails with respect to insubordination are summarized at paragraphs 13 and 15 of that decision. The Federal Court heard that matter on judicial review of the CBSA’s rejection of a grievance that Mr. Burlacu filed after the CBSA determined the harassment complaint unfounded. The Federal Court upheld the employer’s decision. Mr. Burlacu has appealed that decision to the Federal Court of Appeal (file no. A-140-21).\n\nSecond, Mr. LeFrank testified at length about his intentions behind putting the alternate reporting relationship into place. He said that a solution was needed to remove Mr. Burlacu from potential harm but to still allow him to perform meaningful work. He testified that in the end, he concluded that “it was time to go to work” and that no further discussion on the alternate reporting relationship was needed. In cross-examination, he testified about the content of the March 19, 2019, email, and he said to Mr. Burlacu: “I was trying to caution you. I was trying to encourage you to comply with my direction. In no way was I trying to dissuade you to refuse work.” He also testified that he supports any individual’s right to redress, particularly when it comes to health and well-being, and that throughout, he was trying to make sure that he had done everything he could to protect Mr. Burlacu’s health and safety.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-25", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 70–72", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Third, the complainant testified that at the time of the hearing, his workplace-violence notice remained outstanding as it had still not been investigated by a competent person. The CBSA had made proposals for appointing a competent person, but he still disagreed with some aspects of the appointment.\n\nFourth, the complainant testified that he was not actually disciplined for insubordination with respect to the order to report to Mr. Bush, and he has not been disciplined at any time by the CBSA for insubordination.\n\nFifth, the complainant acknowledged that he has several proceedings before the Federal Court and the Federal Court of Appeal that relate directly or indirectly to the events in this matter.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-26", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 73", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The prohibition against reprisals is found at s. 147 of the Code, which reads as follows: 147 No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee … (c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part. 147 Il est interdit à l’employeur de congédier, suspendre, mettre à pied ou rétrograder un employé ou de lui imposer une sanction pécuniaire ou autre ou de refuser de lui verser la rémunération afférente à la période au cours de laquelle il aurait travaillé s’il ne s’était pas prévalu des droits prévus par la présente partie, ou de prendre — ou menacer de prendre — des mesures disciplinaires contre lui parce que : […] c) soit il a observé les dispositions de la présente partie ou cherché à les faire appliquer. [Emphasis added]", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-27", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 74", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The provision that allows an employee to make a reprisal complaint is found at s. 133, which reads in part as follows: 133 (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention. … 133 (1) L’employé — ou la personne qu’il désigne à cette fin — peut, sous réserve du paragraphe (3), présenter une plainte écrite [à la Commission] au motif que son employeur a pris, à son endroit, des mesures contraires à l’article 147. […] (3) A complaint in respect of the exercise of a right under section 128 … may not be made unless the employee has complied with subsection 128(6) …. … (3) Dans les cas où la plainte découle de l’exercice par l’employé des droits prévus aux articles 128 […], sa présentation est subordonnée, selon le cas, à l’observation du paragraphe 128(6) par l’employé […] […] (5) On receipt of a complaint made under this section, the Board may assist the parties to the complaint to settle the complaint and shall, if it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, hear and determine the complaint. (5) Sur réception de la plainte, [la Commission] peut aider les parties à régler le point en litige; [si elle] décide de ne pas le faire ou si les parties ne sont pas parvenues à régler l’affaire dans le délai [qu’elle] juge raisonnable dans les circonstances, [elle] l’instruit [elle-même].", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-28", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 74", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "(6) A complaint made under this section in respect of the exercise of a right under section 128 … is itself evidence that the contravention actually occurred and, if a party to the complaint proceedings alleges that the contravention did not occur, the burden of proof is on that party. (6) Dans les cas où la plainte découle de l’exercice par l’employé des droits prévus aux articles 128 […], sa seule présentation constitue une preuve de la contravention; il incombe dès lors à la partie qui nie celle-ci de prouver le contraire.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-29", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 75", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The provision at s. 133(6) is important because it reverses the burden of proof onto the respondent, in a situation where a complainant exercised their right to refuse to perform an activity reasonably perceived as dangerous. That right is found at s. 128, which reads in part as follows: 128 (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that … 128 (1) Sous réserve des autres dispositions du présent article, l’employé au travail peut refuser d’utiliser ou de faire fonctionner une machine ou une chose, de travailler dans un lieu ou d’accomplir une tâche s’il a des motifs raisonnables de croire que, selon le cas : […] (c) the performance of the activity constitutes a danger to the employee or to another employee. … c) l’accomplissement de la tâche constitue un danger pour lui-même ou un autre employé. […] (6) An employee who refuses to use or operate a machine or thing, work in a place or perform an activity under subsection (1) … shall report the circumstances of the matter to the employer without delay. … (6) L’employé qui se prévaut des dispositions du paragraphe (1) […] fait sans délai rapport sur la question à son employeur. […] (7.1) The employer shall, immediately after being informed of a refusal under subsection (6), investigate the matter in the presence of the employee who reported it. Immediately after concluding the investigation, the employer shall prepare a written report setting out the results of the investigation. … (7.1) Saisi du rapport fait en application du paragraphe (6), l’employeur fait enquête sans délai en présence de l’employé.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-30", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 75–79", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Dès qu’il l’a terminée, il rédige un rapport dans lequel figurent les résultats de son enquête. […]\n\nThis Board’s mandate to hear complaints made under s. 133 of the Code is set out in s. 240 of the Act, which provides that the Board deals with complaints made under s. 133 of the Code in respect of the federal public service and may order an employer to remedy the situation pursuant to s. 134 of the Code.\n\nOther disputes that can arise under Part II of the Code in respect of the federal public service are not within the Board’s mandate. For example, if an employee refuses to do work that the employee believes to be dangerous, and his or her employer determines that there is no danger, the employee’s appeal process (under ss. 128 and 129) does not end up before this Board.\n\nWhile the distinction is legally clear, in practice, this can present some challenges.\n\nIn some cases, the same underlying set of events and facts could give rise to two or more different complaint processes, raising distinct legal questions and ending up before different decision makers.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-31", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 80–82", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As already noted, in this particular case, the question of whether Mr. Burlacu was subjected to workplace violence is the issue of his workplace-violence notice of February 19, 2019, which is to be investigated by a competent person. The question of whether there was a danger in the workplace justifying Mr. Burlacu’s refusal of work on March 5, 2019, went through three stages of investigation, ultimately ending up before the Occupational Health and Safety Tribunal of Canada in Burlacu 2021 (OHSTC). Mr. Burlacu’s complaints of harassment have been the subjects of grievances denied by the CBSA. He has sought judicial review of at least one of those grievance decisions before the Federal Court, and that matter is now being appealed before the Federal Court of Appeal.\n\nWhen there are distinctive processes emerging from the same set of events, the Board must sort out which events relate to the provisions set out at s. 147 of the Code from those that are not relevant to it. At the same time, it must avoid reaching conclusions on matters that must be decided by other decision makers.\n\nThe respondent argued that the standard test applied by the Board in complaints involving s. 133 of the Code was established in Vallée at para. 64, which reads as follows: 64 Thus, the complainant would have to demonstrate that: 1. he exercised his rights under Part II of the [Code] (section 147); 2. he suffered reprisals (sections 133 and 147 of the [Code]); 3. these reprisals are of a disciplinary nature, as defined in the [Code] (section 147); and 4. there is a direct link between his exercising of his rights and the actions taken against him.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-32", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 83–84", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondent noted that the complainant in Vallée had not exercised his right to refuse unsafe work, and therefore, the reverse burden of proof did not apply in that matter. It argued that in the context of a complaint made under s. 133 of the Code in relation with a s. 128 work refusal, the test set out in White v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 63 “White 2013”, would apply. That test, at paragraph 142, reads as follows: 142 The burden established by subsection 133(6) of the Code, which is proving that a contravention of section 147 did not occur, will be satisfied by the respondent if it can establish any one of the following: 1. The complainant did not act in accordance with section 128. 2. The respondent neither disciplined nor financially penalized the complainant. 3. If the respondent either disciplined or financially penalized the complainant, it was not in any way related to the complainant exercising his rights under section 128 of the Code.\n\nThe complainant argued that Vallée should not be applied because of the issue of the reserve burden of proof. He did not dispute the use of White 2013 as the test for his complaint, except that he argued that steps 2 and 3 would need to be broadened to include the threat of discipline and not limited to situations involving a financial penalty. He agreed with the third criterion in White 2013 and said that in this case, the respondent must demonstrate that the threat of discipline is “not in any way related” to the exercising of his rights under the Code.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-33", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 85–86", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant argued the Board could also use an alternative test, similar to White 2013, set out as follows by the Canada Industrial Relations Board (CIRB) in Bah v. Royal Bank of Canada, 2018 CIRB 867 at para. 33: [33] Thus, the [CIRB] must determine whether the employer took retaliatory action, which is prohibited under section 147 of the Code. In Paquet, 2013 CIRB 691, the [CIRB] established a three-step analysis to determine whether a violation of section 147 of the Code has occurred. If we apply these steps to this matter, the following questions arise: · Did the employer impose, or threaten to impose, discipline on the complainant? · Was the complainant participating in a process under Part II of the Code? · Did a nexus exist between the Part II process and the disciplinary action?\n\nI disagree with the complainant that Vallée is to be dispensed with as a test simply because that case did not involve a reverse onus on the respondent. Vallée has been applied by this Board in many cases in which the reverse onus did apply. See, for example, Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40 at para. 75, Nash v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 4 at para. 77, Vanegas v. Treasury Board (Correctional Service of Canada), 2018 FPSLREB 60 at para. 65, and Pezze v. Treasury Board (Department of Natural Resources), 2020 FPSLREB 37 at para. 7.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-34", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 87–88", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the same time, I agree that Vallée has some limitations. The wording of the first and fourth criteria in Vallée are too narrowly focused on the “exercising of … rights” under Part II of the Code. While the first part of s. 147 does speak about the exercising of rights, the latter part of s. 147 prohibits reprisals when an employee “… has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part” [emphasis added] (see s. 147(c)). The enquiry with regards to the first and fourth criteria of Vallée must therefore encompass any actions taken in accordance with, or in furtherance of, Part II of the Code, not just those that involve the exercising of rights.\n\nI note that the third criterion in Vallée is also narrower than the wording of s. 147, which speaks not only of reprisals, but of threat of reprisals. As argued by the complainant, this is also a limitation of the second criterion set out in White 2013. In that regard, it is also important to note that not all reprisals are financial in nature. I agree with the principle articulated in Chaves v. Treasury Board (Correctional Service Canada), 2005 PSLRB 45, in which the Board concluded, at paragraph 72, as follows: [72] … The intent and goal of the [Code provisions] are to ensure a safe workplace for employees and the “whistle blowing” provisions of the [Code] would be rendered meaningless if the employer were allowed to take action against an employee, as long as that action did not result in a financial penalty for the employee.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-35", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 89–90", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "However, when it comes to the critical fourth criterion in Vallée, I think that the preponderance of the case law favours the careful consideration of whether a direct link exists between the exercise of rights or taking of action under the Code and a respondent’s alleged reprisal action. In other words, as stated in section 147 of the Code, the question is whether an employer has taken the alleged retaliatory action because an employee has acted in accordance with, or in furtherance of, Part II of the Code. Thus, I find that the fourth criterion in Vallée is more appropriate than the third criterion in White 2013, which requires the respondent to demonstrate that the discipline “… was not in any way related to the complainant exercising his rights under section 128 of the Code” [emphasis added] (at paragraph 142).\n\nIt is worth noting that the Board in White 2013 did not actually apply that criterion to the matter before it. The Board rejected the complaint at step 1 of its three-part test on the basis that Mr. White had no reasonable cause to refuse work (see paragraph 179). Therefore, no one actually knows if the Board would have applied the third criterion in White 2013 differently than the fourth criterion in Vallée.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-36", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 91–92", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "For similar reasons, I think the third criterion in Bah (“Did a nexus exist between the Part II process and the disciplinary action?”; at paragraph 33) must be considered in light of the actual wording of s. 147. More is required than simply “a nexus”. Section 147 states that an employer is prohibited from making a reprisal “… because the employee … (c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part” [emphasis added]. This is more than simply establishing a relationship between the two events. What is required is a careful weighing of the facts to see whether there is a causal link between the discipline made or threatened and the employee’s exercise of rights under the Code, or his or her other actions taken under the Code.\n\nThis approach is reflected in the preponderance of the case law I have considered. For example, in Vanegas, at para. 67, the Board applied Vallée and stated, “Retaliatory action must however be inextricably linked to the complainant’s exercise of her rights under section 128 of the [Code] …” [emphasis added]. In that case, a correctional officer who participated in a work refusal was required to stay on site for a period of 45 minutes, cutting into her scheduled vacation time. The Board concluded that this action was neither retaliatory in nature nor an act of reprisal (see paragraph 75).", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-37", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 93–95", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In Pezze (at paragraph 43), the Board confirmed that close proximity in time between the exercise of a right under the Code and the administration of discipline is not, in and of itself, proof of a violation of s. 147. That complaint was about a letter of discipline issued at the time of a work refusal under the Code. However, as the Board determined, the letter was not linked to the work refusal but was issued for unprofessional and disrespectful comments.\n\nThe Board in Pezze followed an earlier decision, Sousa-Dias v. Treasury Board (Canada Border Services Agency), 2017 PSLREB 62, in which Mr. Sousa-Dias had received a one-day suspension for refusing to attend a meeting to discuss a work refusal. In that decision, the Board concluded that the discipline was for insubordination and that it was linked to a poor labour-management environment, and it stated, “This lack of respect carried over into the work-refusal process but was not linked to that process” (at paragraph 131).\n\nIn Martin-Ivie, the Board allowed the complaint made under s. 133 of the Code. Nevertheless, in the reasoning, the Board distinguished a reprisal prohibited under s. 147 from discipline administered when an employee violates an employer’s code of conduct, at paragraph 59, as follows: 59 If the story ended there, I would have no qualms finding in favour of the respondent. Instituting an investigation to look into a possible breach of an employer policy is not, in and of itself, in my opinion a threat of discipline. An employer has every right to discipline an employee for a breach of its policies. The complainant cannot hide behind the exercise of her rights under the Code to avoid disciplinary action which may result from actions which are a violation of the employer’s code of conduct.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-38", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 96–99", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Having considered the parties’ arguments, the wording of s. 147 of the Code, and the case law, I find it more useful to reformulate and simplify the principles in Vallée as follows: 1. Has the complainant acted in accordance with Part II of the Code or sought the enforcement of any of the provisions of that Part (section 147)? 2. Has the respondent taken against the complainant an action prohibited by section 147 of the Code (sections 133 and 147)? and 3. Is there a direct link between (a) the action taken against the complainant and (b) the complainant acting in accordance with Part II of the Code or seeking the enforcement of any of the provisions of that Part?\n\nIn this matter, there is no dispute between the parties that the complainant has properly invoked, pursuant to s. 128(1)(c) of the Code, his right to refuse work that he believed to be a danger and that he has notified his employer of that, pursuant to s. 128(6). Further, there is no dispute between the parties that the burden of proof in this matter lies with the respondent, pursuant to s. 133(6). Procedurally, the case proceeded on that basis, with the respondent leading in both evidence and argument.\n\nAs discussed, there is no dispute between the parties that Mr. Burlacu exercised his rights under the Code, meeting criterion #1. On February 19, 2019, he reported workplace violence, which at the time was provided for in Part XX of the Canada Occupational Health and Safety Regulations. (The Code has since been amended to provide for a right to complain about workplace violence).\n\nFurthermore, on March 4, 2019, Mr. Burlacu exercised his right to refuse work he considered a danger to his health and safety.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-39", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 100–102", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On March 8, 2019, after several email exchanges between Mr. Burlacu and Mr. LeFrank, the complainant accepted as an interim and temporary solution the change in reporting relationship to Mr. Bush and abandoned his work refusal. However, on March 13, 2019, after a further exchange of emails about the status of his work refusal, the complainant reiterated his right to refuse dangerous work. That work refusal was still in place on March 19, when Mr. LeFrank ordered Mr. Burlacu to report to Mr. Bush or face possible disciplinary action.\n\nAs I have already concluded, given that a work refusal was in place, the reverse burden of proof as outlined in s. 133(6) applies. There is no dispute between the parties on that point.\n\nThe respondent argued that Mr. LeFrank’s email of March 19, 2019, was not a threat of discipline but merely a “caution” of the consequences Mr. Burlacu would face if he continued to challenge the change in reporting relationship to Mr. Bush. This argument was related directly to Mr. LeFrank’s testimony about the intention of his email. He testified that he wanted to caution Mr. Burlacu about the importance of following the directions he was providing, as his supervisor. It cited Nash, at paras. 79 to 81, for authority that an employer can caution an employee for refusing to perform duties and for the principle that the Board can distinguish between a threat and a caution.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-40", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 103–106", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant argued that after receiving Mr. LeFrank’s email, he had no choice but to comply with it. He perceived the email as a threat, and in email communications to Mr. LeFrank on March 24 and 25, 2019, he described it as a threat. Mr. LeFrank never corrected his characterization of the email as a threat; at the time of the events, Mr. LeFrank could have clarified his statement as a caution but did not.\n\nFor the purposes of applying the second criterion set out earlier in this decision, I find that there is little to distinguish a “caution” from a “threat”. The issue that I have to determine is whether the respondent has taken against the complainant an action prohibited by section 147 of the Code. What Mr. LeFrank called a caution, Mr. Burlacu took as a threat. Either way, the result is the same: “If you continue with X behaviour, I may impose result Y on you.”\n\nI find that the email of March 19, 2019, amounted to an action prohibited by section 147 of the Code, meeting the second criterion set out earlier. The respondent’s argument about Mr. LeFrank’s intent behind the email are best taken up during the third and final part of the analysis.\n\nI turn now to the heart of this matter, which is whether there is a direct link between the threat contained in Mr. LeFrank’s email and Mr. Burlacu’s actions in accordance with, or furtherance of, Part II of the Code. As discussed, given the reverse onus that applies to the respondent, it was up to the respondent to demonstrate that, on a balance of probabilities, the threat was not made because Mr. Burlacu had exercised his right to refuse work that he considered dangerous.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-41", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 107–110", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "It is useful to repeat the key phrases in Mr. LeFrank’s email to the complainant of March 19, 2019: “The situation is clear. You will report immediately to Mr. Bush. Failure to comply with this direction may result in disciplinary action as I find it to be insubordination.”\n\nWere I to follow the third criterion set out in White 2013 and Bah, as argued by the complainant, the respondent might have a harder time meeting its burden. Following Mr. Burlacu’s workplace-violence notice and his subsequent work refusal, he and Mr. LeFrank engaged in extended discussions, both in person and by email, about the interim measures to be put into place to provide the complainant with a safe work environment. These discussions touched on the reasons for Mr. Burlacu’s actions under the Code and the employer’s obligations and authorities under the Code. The March 19 email was, effectively, the culmination of those discussions. To suggest that the email was “not in any way related” to the issues about the Code or that “a nexus” did not exist between the threat of discipline and Mr. Burlacu’s exercise of rights would fly in the face of these basic facts.\n\nHowever, the issue is whether there is a causation, or put in the words used in s. 147 of the Code, whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code.\n\nI find that the respondent has met the burden of demonstrating that there is not a causal link between the threat of discipline in this case and Mr. Burlacu’s actions in accordance with, or in furtherance of, Part II of the Code, for the following reasons.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-42", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 111", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "First, I consider the context of Mr. LeFrank’s email and the words he used in it. Once it became clear that Ms. Spicer and Mr. Ghaani were related to the workplace-violence notice, Mr. LeFrank sought to put into place a change in reporting relationship. In meetings and via several emails, Mr. Burlacu sought other alternatives, such as reporting directly to Mr. LeFrank or being granted leave with pay, but Mr. LeFrank did not approve of those. He decided that Mr. Burlacu should report to Mr. Bush. During the exchange of several other emails, they then discussed the terms of that reporting relationship. On March 8, the complainant agreed to the change in reporting relationship as a temporary and interim measure and abandoned his work refusal. However, after Mr. LeFrank’s email of March 12, in which he sought clarification on the status of the work refusal, Mr. Burlacu reiterated his work refusal and began to question Mr. LeFrank again on why the change in reporting relationship was required. His emails said that he would not report to Mr. Bush unless there was a direct order to do so.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-43", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 112–114", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "What the context shows is that the threat of discipline was made following a prolonged exchange of emails between the 2 men in which Mr. Burlacu continued to question or challenge the change in reporting relationship to Mr. Bush and Mr. LeFrank’s managerial authority to do so. This occurred multiple times over a period of nearly 2 weeks, even after Mr. Burlacu said that he would require a direct order and after Mr. LeFrank made that direct order. The last email from Mr. Burlacu was sent on March 19, 2019, at 5:41 p.m., and Mr. LeFrank’s reply came 13 minutes later. The words he used were precise. He clearly conveyed to Mr. Burlacu the unambiguous direction to report to Mr. Bush. And he said, “Failure to comply with this direction may result in disciplinary action as I find it to be insubordination.”\n\nOn the basis of their plain meaning, and when considered in context, what the words used to convey Mr. LeFrank’s direction in the email suggest is that the threat of discipline was made because Mr. LeFrank found Mr. Burlacu’s behaviour to be insubordinate.\n\nI wish to emphasize that the question in front of me is not whether Mr. Burlacu’s behaviour was insubordinate. I need not conclude that his behaviour was insubordinate; nor do I need to assess whether Mr. LeFrank’s view of the situation was justified. Rather, the issue that I must determine is whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code. On that point, I find Mr. LeFrank’s testimony to be credible with regards to his considering that Mr. Burlacu was insubordinate at the time.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-44", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 115–117", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Second, I take account of Mr. LeFrank’s testimony that he was not in any way trying to dissuade the complainant from refusing work or acting in accordance with, or in furtherance of, Part II of the Code. While he did not fully understand why Mr. Burlacu felt that he had been subjected to workplace violence, once he knew who was involved, he began searching for an alternative reporting relationship. Once the work refusal was made, the change was put into place as soon as possible. Mr. LeFrank testified that there were a limited number of options, as there were only four managers to choose from, and that he wanted someone with strong management experience to supervise Mr. Burlacu, as well as a meaningful work situation for him.\n\nAccording to Mr. LeFrank, the reason for the change in reporting relationship was to separate Mr. Burlacu from those managers who related to the workplace-violence notice: Ms. Spicer and Mr. Ghaani. The need for the change was reinforced after Mr. Burlacu alleged that the reasons for his work refusal were inextricably linked with the workplace-violence notice.\n\nI find Mr. LeFrank’s explanation of his intentions credible and plausible. He wanted Mr. Burlacu to be working and sought to temporarily separate him from his former managers. He thought that the reporting relationship to Mr. Bush would provide a safe working environment. I note that Mr. Burlacu never said that reporting to Mr. Bush represented a potential danger. Nor did he name Mr. Bush as a person related to his workplace-violence notice. Nor was Mr. Bush named as a respondent in any of the harassment complaints.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-45", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 118–119", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Quite simply, in light of all the circumstances put in evidence before the Board, I find it more probable than not that Mr. LeFrank wanted Mr. Burlacu to comply with the direction to report to Mr. Bush, and his threat of discipline was made because of Mr. Burlacu’s continued resistance to that direction. I do find that the tone of his email conveys a sense of exasperation about the ongoing nature of Mr. Burlacu’s emails about the interim solution. However, I do not find that surprising, particularly looking at it in hindsight in that the exchange happened within the last 10 business days of Mr. LeFrank’s career with the CBSA.\n\nI note as well that Mr. LeFrank’s testimony was made as a retired person, three years after the events in question. Despite that, he testified with clarity about his intentions in the decisions he made in 2019 and nevertheless said that he fully supports Mr. Burlacu’s right to seek recourse under the Code and before this Board. Nothing in the evidence before the Board puts that testimony into question.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-46", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 120–121", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Third, I wish to highlight Mr. Burlacu’s testimony about the issue of CBSA management viewing his behaviour as insubordinate. In his testimony, he referenced Mr. Ghaani’s threat of discipline in their discussion of his leave requests in their exchange of emails from February 7 to 13, 2019. He also brought me to the content of the harassment complaint he made on March 27, 2019, against Ms. Spicer. That complaint, which, including attachments, numbered some 45 pages in length, covered a period from September of 2017 through January of 2019. In very general terms, the complaint concerns Ms. Spicer’s approach to managing Mr. Burlacu, and many conflicts with respect to management’s approval or rejection of leave requests made by the complainant. Within the complaint, he alleged that some CBSA Labour Relations staff had exchanged emails that stated that he “… often questions management decisions to the point of near insubordination.” He alleged that Labour Relation’s perception of him was shared with Ms. Spicer. He alleged that Ms. Spicer wrote an email in September 2018, accusing him of “bordering on insubordination”. He also included some of these same allegations in a harassment complaint made on January 31, 2019, against the two Labour Relations staff members involved in that exchange of emails.\n\nHe argued that while Mr. LeFrank might not have seen those documents before March 19, 2019, he should have at least been aware of the fact that some managers and Labour Relations staff had seen the complainant’s behaviour as insubordinate and that therefore, he would take the threat of discipline seriously.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-47", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 122–123", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In my assessment, Mr. Burlacu’s evidence and argument on this point further suggest a causal nexus between the threat of discipline and Mr. LeFrank’s opinion that Mr. Burlacu was being insubordinate. Consequently, they reinforce the respondent’s contention that the threat of discipline was because of perceived insubordination and not related to the complainant’s actions under the Code.\n\nAgain, I make no assessment of whether Mr. Burlacu’s behaviour amounted to insubordination. As Mr. Burlacu himself testified, he was not actually disciplined by the CBSA at the time for insubordination or since. The issue in this case is only to establish the cause behind Mr. LeFrank’s threat of discipline.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-48", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 124–125", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondent cited Nash for its arguments that Mr. LeFrank’s email was merely a caution and that a caution about not reporting to work should not be considered disciplinary. Although I have found Mr. LeFrank’s email to be more than a caution, Nash is nevertheless instructive about the legitimacy of an employer directing an employee to work, even in the context of the exercising of a right to refuse dangerous work. The following passage from Nash, at para. 82, is analogous to the situation in this case: 82 A disciplinary sanction must at least have the potential to prejudicially affect an employee. In this case, the grievor being cautioned that if he refused to do any work, and not just that for which he had exercised his rights under the Code, he would be sent home, in my opinion is not disciplinary in the context of either of the work refusals. A reasonable employer can expect an employee in the workplace to perform the duties of his or her position. A failure on the employee’s part to meet his or her employment obligations warrants a caution that he or she may end up without pay for that failure. Such a caution is not disciplinary. Furthermore, the employer was entitled to assign legitimate work to the grievor regardless of whether or not he had previously invoked his rights under the Code in relation to other work. [Emphasis added]\n\nFor similar conclusions, see also Vanegas, at para. 77, Nash, at para. 86, Sousa-Dias, at para. 130, and Pezze, at para. 42.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-49", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 126–127", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Although the employer bears the burden of disproving the complaint in this case, the complainant nevertheless made a series of arguments in response to those of the respondent to try to establish that there was indeed a direct relationship between the threat of discipline and his acting in accordance with, or in furtherance of, Part II of the Code. However, the issue before me is whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code. Many of these arguments relate to the larger events surrounding the workplace conflict. I find that most of these arguments are not relevant to the issues before me; those that are relevant do not change my assessment. Rather than taking these in the order presented by Mr. Burlacu, I will try to take these roughly in chronological order.\n\nFirst, the complainant argued that Mr. LeFrank unnecessarily delayed putting into place temporary measures after the workplace-violence notice was made. The complaint was made on February 19, and the first time the reporting relationship to Mr. Bush was mentioned in an email was March 8. This undermines Mr. LeFrank’s explanation of the reasons for the change in reporting relationship, the complainant argued. He referenced Stiermann v. Treasury Board (Department of Industry), 2019 FPSLREB 52 at para. 53, for the principle that following a workplace-violence notice, an employer must act quickly. If the purpose was to keep him safe, given the workplace-violence notice, why the delay?", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-50", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 128–129", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I do not find the delay significant. After his workplace-violence notice, Mr. Burlacu was granted leave for February 19 and 20. He was in the office on February 21 and 22, during which time he met twice with Mr. LeFrank. He was on a compressed workday off on February 25 and on sick leave from February 26 to March 2. On Monday, March 4, he returned to work, and only at that time did he tell Mr. LeFrank who were the persons involved in his workplace-violence notice. He filed a work refusal the same day. The reporting relationship to Mr. Bush was detailed in Mr. LeFrank’s email to Mr. Burlacu of March 5, 2019, at 3:47 p.m. Even if this were a significant delay, I do not see how this would help shed any light on the reasons for Mr. LeFrank’s threat of discipline.\n\nSecond, the complainant challenged Mr. LeFrank’s reasons for not granting him the alternative of leave with pay, at least pending the outcome of the informal-conflict-management process. Mr. LeFrank had written and testified that he did not have authority to grant such leave. But he could not name a document that limited his authority, the complainant argued. He added that leave could have been granted under the collective agreement and argued that before Mr. LeFrank did something the law prohibited (forcing a change in reporting relationship), he should have done everything the law allowed (granting leave with pay). Instead, he imposed the reporting relationship to Mr. Bush, Mr. Burlacu argued.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-51", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 130–132", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I do not find this argument relevant to the issue before me. Mr. Burlacu had the option of filing a grievance if he felt that the denial of his leave request was unreasonable. An employer’s interpretation and application of the collective agreement can always be challenged by way of a grievance, with the employee’s bargaining agent’s support.\n\nThird, the complainant argued that he made a reasonable proposal to report directly to Mr. LeFrank as an interim measure. Mr. LeFrank testified that he did not agree to the direct report because he already had a large number of direct and indirect reports, he did not think that he could respond quickly enough to the volume of emails, and he did not want to jeopardize the informal-conflict-management session scheduled for late March 2019, in which he would be representing the CBSA in an effort to resolve Mr. Burlacu’s disputes.\n\nIn my view, Mr. LeFrank’s reasons for not accepting a direct reporting relationship seem perfectly reasonable, particularly given his pending retirement. Nevertheless, I do not find this argument relevant to the issue before me. I am not seized with a grievance about Mr. Burlacu having to report to Mr. Bush. Nor am I seized with a grievance that challenges the authority of Mr. LeFrank to make a change in reporting relationship to Mr. Bush. Mr. Burlacu suggested that such a change might be in violation of his appointment under the PSEA, but that has no bearing on the issue before me, which is whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code. The interpretation or application of the PSEA cannot help to answer that question.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-52", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 133", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Fourth, the complainant argued that Mr. LeFrank failed to properly explain why the change in reporting relationship was consistent with the employer’s rights and responsibilities under the Code. He referred to their email exchanges of March 5 to 19, 2019. In those, Mr. LeFrank first cited s. 129(5), but Mr. Burlacu pointed out that that section applies only to the exercise of rights under s. 129, not those under s. 128. Mr. LeFrank then pointed out what he called the “general duty clause” at s. 124 of the Code, which reads, “[the] employer shall ensure that the health and safety at work of every person employed by the employer is protected.” Mr. Burlacu challenged Mr. LeFrank’s assumption that the duty listed in s. 124 provided him with the authority to remove the complainant from his position. Mr. LeFrank also cited s. 128.1(3) as authority. Mr. Burlacu argued that this section applies only to workers on shift, which did not apply to his case.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-53", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 134–135", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "There is no doubt in my mind that Mr. Burlacu had closely studied the Code and that during his email exchanges with Mr. LeFrank, he demonstrated a better understanding of some of its details. However, whether or not the employer had the authority to make the change in reporting relationship does not help determining whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code. Mr. Burlacu clearly was seeking alternative solutions to a change in reporting relationship, but ultimately, it is up to management to put into place a temporary solution when faced with a workplace-violence notice. The Board is not seized with either assessing Mr. LeFrank’s understanding of the nuances of the Code or assessing whether the solution chosen was the best one under the circumstances. The complainant’s argument sheds no light on the issue before the Board. Further, Mr. Burlacu could have challenged the exercise of Mr. LeFrank’s managerial authority by way of a grievance.\n\nFifth, the complainant argued that I should consider the subject line of Mr. LeFrank’s email of March 19, 2019: “Re: Continued refusal – subsection 128(9) of the Canada Labour Code”. This establishes a clear link between the threat of discipline and his actions in accordance with, or in furtherance of, Part II of the Code, he said.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-54", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 136–138", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I disagree. The entire email chain entered into evidence, from March 5 to 19, 2019, consisted of 12 emails, each of which was clearly linked to the one before it. When the email chain started, with an email written by Mr. LeFrank, the subject line was blank. The subject line in question was added by the complainant himself in one of his response emails. The subject line does not change my assessment that Mr. LeFrank’s threat of discipline was because of perceived insubordination.\n\nSixth, the complainant argued that in the further exchange of emails between him and Mr. LeFrank on March 24 and 25, 2019, he clearly articulated his view that he had compiled with reporting to Mr. Bush only because Mr. LeFrank had made a threat of discipline, in violation of the Code. He argued that if Mr. LeFrank had not intended to make a threat, he should have corrected the record then. This is evidence of a direct link between the threat of discipline and his actions in accordance with, or in furtherance of, Part II of the Code, he argued.\n\nI disagree. Mr. LeFrank could not recall the final one of those emails, which is not surprising given the fact that at the time, he was in his last days of work for the CBSA, and given the passage of time. Even if he had fully absorbed the content of Mr. Burlacu’s emails, I place no value in his failure to try to change Mr. Burlacu’s views. The actual subject being discussed by Mr. Burlacu and Mr. LeFrank in those emails was whether the work refusal was still in effect and whether it would then be referred to the Work Place Health and Safety Committee for review.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-55", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 139–140", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Seventh, the complainant argued that Mr. LeFrank had no reason to send the email he did on March 12, 2019, except that he was trying to force a finding that there was no danger in the workplace, and that this intention was confirmed in the events that followed their March 24 and 25, 2019, exchange. On March 8, Mr. Burlacu had abandoned his work refusal; on March 11, he started reporting to Mr. Bush. The issue should have ended there, he argued. The fact that it did not end there demonstrated that Mr. LeFrank was trying not to protect his health and safety but to compel him into an agreement that the workplace did not represent a danger, he said. He argued that Mr. LeFrank was engaged in a deliberate attempt to achieve a finding of “no danger”, because the ministerial designate at Labour Program could rule “no danger” because there had been a temporary measure put in place. It was for those reasons that he refused to agree to the temporary measure and reiterated his work refusal. Throughout the process, Mr. LeFrank did not properly follow the provisions of the Code, and included in these errors was the threat of discipline made on March 19, the complainant argued.\n\nThe respondent argued that Mr. LeFrank was making his best effort to be compliant with the Code. He wanted to ensure that Mr. Burlacu agreed that the work refusal was resolved, because if not, he wanted to refer the matter to the Work Place Health and Safety Committee and later the ministerial designate at the Labour Program. Mr. Burlacu’s response of March 13 made it clear that the issue was not resolved, and there was a point of urgency in ensuring a safer work environment through the change in reporting relationship.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-56", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 141", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Sorting out this exchange of emails and the events that follow would involve covering much of the same events and arguments made before the Occupational Health and Safety Tribunal of Canada in Burlacu 2021 (OHSTC). That decision already clarifies the appropriate distinction between the workplace-violence-notice process and the work-refusal process (see paragraph 66). That decision also contains a conclusion that Mr. Burlacu demonstrates a remarkable technical understanding of the provisions of the Code (see paragraph 67), a conclusion I fully concur with. His understanding prevailed before that tribunal, which determined that the ministerial designate at the Labour Program did not have jurisdiction to reach a finding of “no danger” because only Mr. Burlacu can make the proper referral to the ministerial delegate. In essence, what the decision says is that it was not up to Mr. LeFrank to move the work refusal through to that stage; doing so would have been Mr. Burlacu’s decision.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-57", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 142", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Does that conclusion undermine the respondent’s argument that Mr. LeFrank’s email of March 19, 2019, was not because of Mr. Burlacu’s actions in accordance with, or in furtherance of, Part II of the Code? I do not find that it does. It is useful to review the first major paragraph in Mr. LeFrank’s email of March 12, 2019, which reads as follows: … As a point of clarification, having received my work refusal stage one investigation report are you agreeing with my findings that there is no danger in which case there would be no need for an interim temporary reporting arrangement or do you disagree with my findings, continue to require an interim temporary arrangement, and the work refusal continues for the regular reporting relationship of your substantive position? This is important for me to know in order to refer your work refusal to a labour investigator that will likely conclude more quickly than the violence in the workplace complaint. …", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-58", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "para 143", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. LeFrank testified that while he did not completely understand why Mr. Burlacu felt that he was subject to workplace violence, or why his work was dangerous, he accepted that that is how Mr. Burlacu felt. He wanted to have the issue resolved, and in the meantime, he wanted Mr. Burlacu to have a safe work environment. His email of March 12 reflected a motivation of obtaining a third-party conclusion more quickly. That might not have been the best choice of action, but, on a balance of probabilities, I can find no malice in it or any attempt on Mr. LeFrank’s part to stop Mr. Burlacu from acting in accordance with, or in furtherance of, Part II of the Code. Furthermore, while Mr. Burlacu’s emails of March 24 and 25 did not request the referral of the work refusal to the Labour Program, they also expressed a clear disagreement with the finding of “No Danger”. Once again, I accept Mr. LeFrank’s testimony that he was looking for a solution, taking into account both the workplace-violence notice and the work refusal, even though the processes were different. I find it more probable than not that he wanted the interim reporting solution in place until a resolution could be found, and he wanted to see the issue resolved as quickly as possible.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-59", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 144–145", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Eighth, the complainant argued that subsequent changes made in reporting relationships at the CBSA reveal that the order that he report to Mr. Bush was not made in his best interests. He testified that in June of 2019, Ms. Spicer was made the acting director general for two weeks. As the director general, she oversaw Mr. Bush, which placed Mr. Burlacu back into an indirect report relationship to her. The CBSA did not proactively address this. Mr. Burlacu had to raise it as an issue, he said. Rather than granting him leave with pay for a week, it made yet another reporting change. This indicates that the CBSA was not interested in his health and safety, he argued. A similar issue happened in the fall of 2019, he said, when Ms. Spicer was placed in an acting vice-president role at the CBSA for two weeks. No protective measures were put into place then, he argued.\n\nI am entirely unconvinced that changes in reporting relationships made by the CBSA in June and November of 2019 shed any light on whether Mr. LeFrank violated s. 147 of the Code in March of 2019. Mr. Burlacu clearly had concerns about being brought back into an indirect reporting relationship with Ms. Spicer, and he had opportunities to raise those concerns. Whether or not the CBSA’s actions after the complaint at hand was filed on April 30, 2019, were appropriate or sufficient is not an issue before me. These events occurred entirely after the facts relevant to this case. Further, there is no evidence before me to suggest that Mr. LeFrank was aware of any CBSA’s possible later actions at the time of his March 19, 2019, email.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-60", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 146–148", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Ninth, reference was made during the course of testimony to the fact that there have been significant delays commencing an investigation of Mr. Burlacu’s February 19, 2019, workplace-violence notice. At the time of the hearing, an investigation of the complaint by a competent person had still not commenced. Testimony revealed that there were delays in the selection of a competent person and that although a person has been found, at the time of the hearing, there remained outstanding issues with respect to starting the investigation.\n\nWhile a delay of this duration may not be ideal, the full facts and causes of that delay are not relevant to the determination of this complaint, which is about whether the threat of discipline was because Mr. Burlacu was acting in accordance with, or in furtherance of, Part II of the Code.\n\nIn this matter, the respondent bore the burden of proving that its threat of discipline was not because the complainant was acting in accordance with, or in furtherance of, Part II of the Code. I am satisfied that on a balance of probabilities, the threat of discipline was made because Mr. LeFrank felt that Mr. Burlacu’s ongoing resistance to reporting to Mr. Bush amounted to insubordination. The threat was not made because the complainant was acting in accordance with, or in furtherance of, Part II of the Code. None of the complainant’s multiple arguments that he has been subject to several forms of injustice at the hands of the CBSA have discredited the respondent’s evidence. As such, I find the respondent has established that it did not violate s. 147 of the Code.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-61", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 149–150", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Because of the Board’s limited mandate under the Code, it is not my role to get to the heart of the conflict Mr. Burlacu has with his employer. Much of it appears to be rooted in how his managers responded to his leave requests, with either denials or challenges to his requests, and to other questions of how his work was being managed. Whether this amounted to workplace violence is a question to be addressed by the competent person.\n\nWhat is not clear is why Mr. Burlacu so strongly resisted reporting to Mr. Bush. Mr. Burlacu never alleged that he was or would be subject to workplace violence or harassment at the hands of Mr. Bush. On March 8, 2019, Mr. Burlacu accepted reporting to Mr. Bush as an interim measure and abandoned his work refusal. He then reiterated the work refusal on March 13, 2019, not because of any allegation that Mr. Bush represented a danger but because he disagreed with the content and questions of Mr. LeFrank’s email of March 12, 2019. He then strenuously resisted the change in reporting relationship multiple times over a period of several days. Mr. LeFrank felt that that resistance amounted to insubordination, which is why he stated that he would consider discipline if Mr. Burlacu continued to resist.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-62", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 151–153", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Burlacu stated that he did not want to be “pushed out of [his] unit”, but it is not clear whether he made a complaint about that. This is not such a complaint. Ultimately, the only clarity I could find is that Mr. Burlacu thought that the CBSA should have sought other alternative solutions to his complaints, such as allowing him to report to Mr. LeFrank or placing him on leave with pay pending the results of a mediation or an investigation. He also suggested before me that instead of moving him to a new manager, the CBSA could have allowed him to stay in his position and could have reassigned Mr. Ghaani and Ms. Spicer to new positions.\n\nI take note of information provided by the respondent that Ms. Spicer and Mr. Ghaani are no longer in the positions they occupied when Mr. Burlacu made his workplace-violence notice. From that point of view, it indicated that there would be no risk to Mr. Burlacu were the Board to uphold his complaint and return him to his previous position. This is also not relevant to the determination of the issue before me.\n\nMr. Burlacu has every right to seek recourse under the Code and through the grievance process, but he does not get to set the terms of how the employer responds to his many complaints and actions. The underlying fact is that he remains an employee of the CBSA, and it has the right to expect him to work. Given his multiple complaints against his former managers, Mr. Ghaani and Ms. Spicer, it is to be entirely understandable that it would separate him from them while the process is underway to investigate and rule on his complaint.", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-520948-63", + "doc_type": "caselaw", + "act_code": "2022 FPSLREB 51", + "act_short": "Burlacu", + "act_name": "Burlacu v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Burlacu v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 51", + "marginal_note": "paras 154–156", + "heading": "CBSA; occupational health and safety and staffing", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As I have noted, Mr. Burlacu has initiated multiple recourse processes in the form of complaints, grievances, and judicial reviews before different decision makers, all related to the same underlying issues affecting his work for the CBSA. This decision addresses only one small aspect of those issues.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe complaint is dismissed. June 22, 2022. David Orfald, a panel of the Federal Public Sector Labour Relations and Employment Board", + "current_to": "2022-06-22", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/520948/index.do" + }, + { + "id": "fpslreb-483604-1", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 1–4", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor was employed as an indeterminate FB-02 (border services) officer trainee with the Canada Border Services Agency (CBSA) in the Officer Induction Development (OID) Program from January 13, 2014, until the termination of her employment on June 15, 2015, which she grieved. As of her termination, she was on probation.\n\nOn November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (PSLREB) to replace the former Public Service Labour Relations Board (PSLRB) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40; EAP No. 2) also came into force (SI/2014-84). Pursuant to s. 396 of the EAP No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) as that Act read immediately before that day.\n\nOn 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 PSLREB and the titles of the PSLREBA and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (FPSLRA).\n\nThis grievance is dismissed for the reasons that follow.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-2", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 5–6", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "A part of this grievance relates to the search and seizure of items in the car of the grievor’s brother. The police officer involved in this seizure testified, and the occurrence report was admitted as an exhibit. The police officer is now an undercover officer. The parties agreed that the officer’s identity should not be revealed in this decision and that the general occurrence report that refers to the officer should be sealed, in accordance with the test established in Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835, and R. v. Mentuck, 2001 SCC 76, known commonly as the “Dagenais/Mentuck” test.\n\nIn Canada (Attorney General) v. Philps, 2019 FCA 240, at par. 23, the Federal Court of Appeal relied on the test set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, at paragraphs 48 and 53, where the Supreme Court considered its jurisprudence relating to publication bans in the criminal context in Dagenais and Mentuck, for determining whether to redact names in a proceeding before the Board. The Supreme Court held that in administrative proceedings, confidentiality orders should not be issued unless the order is necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk. The Court also held that the risk in question must be “real and substantial”. In addition, the salutary effects of the confidentiality order, including the effects on the right of litigants to a fair trial, must outweigh its deleterious effects, including the effects on the right to free expression.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-3", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 7–9", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In Mentuck, the publication ban request related to the identities of undercover police officers, among other facts. In applying its test, the Court addressed the names and identities of undercover police officers as follows: 46 However, I accept that the publication of the names and identities of the officers in question would create a serious risk to the efficacy of current, similar operations. Given that the officers involved appear to go by their real names in the course of this undercover work, publishing their names could very easily alert targets that their apparent criminal associates are in fact police officers. Furthermore, since the operations in question have already been commenced, it would obviously be unreasonable for officers to adopt pseudonyms now. The targets already know their real names. Accordingly, I agree with Menzies J. that a ban on the publication of officers’ names is necessary and that there is no reasonable alternative. [Emphasis in the original]\n\nI therefore find that the anonymization and sealing order are necessary to prevent a serious risk to an important interest (police operations) that outweighs the right of the public to know the identity of the police officer and there is no other reasonable alternative to anonymizing the decision and sealing the exhibit. I find that the risk in question is “real and substantial”. I also find that the salutary effects of the confidentiality order, including the effects on the right to a fair hearing, outweigh its deleterious effects, including the effects on the right to free expression.\n\nAccordingly, I have identified the police officer in this decision by the initials “A.B.” I have also ordered that the occurrence report be sealed.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-4", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 10–13", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor disclosed to the employer as part of her case a grievance report prepared by her former representative on this grievance, which was the bargaining agent for the Border Services (FB) Group. The employer did not object to the introduction of this report and relied on it in its final arguments.\n\nIt is unusual for a grievance report to be introduced as evidence. This grievance report identifies the strengths and weaknesses of the grievance before the Board. It is the former representative’s assessment based on his/her review of the facts as set out by the grievor. The former representative’s assessment of the merits of a grievance is not relevant in the evidence portion of a grievance hearing as it is simply the former representative’s assessment. In this sense, it is more like submissions. Accordingly, it is not relevant evidence to the issues in the grievance before me and I have given it no weight.\n\nThere was no request for an exclusion of witnesses. Four witnesses testified for the employer, and the grievor testified.\n\nA witness for the employer was not available on the scheduled hearing days. The employer reserved its right to contact the witness by teleconference after the scheduled hearing days concluded. The grievor consented to this approach. After the hearing dates concluded, the employer’s counsel advised that it did not need to call the witness.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-5", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 14–16", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer relied on s. 62 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA) to terminate the grievor’s employment. That section provides as follows: 62 (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of (a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or (b) the notice period determined by the separate agency in respect of the class of employees of which that employee is a member, in the case of a separate agency to which the Commission has exclusive authority to make appointments, and the employee ceases to be an employee at the end of that notice period. Compensation in lieu of notice (2) Instead of notifying an employee under subsection (1), the deputy head may notify the employee that his or her employment will be terminated on the date specified by the deputy head and that they will be paid an amount equal to the salary they would have been paid during the notice period under that subsection. [Emphasis in the original]\n\nThe application of this provision is commonly referred to as a “rejection on probation”.\n\nThe FPSLRA sets out the jurisdiction to refer an individual grievance to adjudication. Section 211 states that any termination of employment under the PSEA cannot be referred to adjudication.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-6", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 17–18", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The jurisdiction of the Board to hear a rejection-on-probation grievance is limited. The Federal Court, in Chaudhry v. Canada (Attorney General), 2007 FC 389, set out the limited basis of the Board’s jurisdiction as follows: [51] In these circumstances, the employer satisfied the adjudicator that it had met the burden of proof which required it to show some evidence of an employment-related reason for a rejection on probation. In this regard see Canada (Attorney General) v. Leonarduzzi (2001), 205 F.T.R 238, at para. 37, where Lemieux J. wrote: Specifically, the employer need not establish a prima facie case nor just cause but simply some evidence the rejection was related to employment issues and not for any other purpose. … [53] Once the employer’s onus was met, the burden shifted to the employee to show bad faith. In this regard, the adjudicator concluded that the Applicant had not shown that the Rejection on Probation was a sham or made in bad faith.\n\nTello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134, at paragraph 111, sets out the shifting burdens of proof in a rejection on probation grievance. The employer must show that i) the grievor was on probation, ii) the probationary period was still in effect at the time of the termination, iii) she was given notice or compensation in lieu of notice, and iv) she was provided with a letter stating why she was rejected on probation. The burden then shifts to the grievor to demonstrate that the decision to terminate her employment by way of a rejection on probation was a sham, camouflage, or contrived reliance on the PSEA or that it was done in bad faith.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-7", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 19–22", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer relied on the grievor’s removal of protected documents from the workplace when she was a summer student (before her appointment as an FB-02 officer trainee) to support the rejection on probation. While she acknowledges that the documents were in her possession, she maintains that they ended up in her possession inadvertently. Her position is that she was rejected on probation based on discriminatory grounds and because she made a complaint about being photographed by the news media while on duty.\n\nIn the summary of evidence, I set out the grievor’s background and an overview of the CBSA’s OID program. I then summarize evidence on her performance assessments during the probationary period. I then summarize the alleged employment-related reason for the rejection on probation, the investigation of the allegation, and the termination of employment. I then turn to the allegations of a breach of human rights and the events that she relied on to support her position that the rejection on probation was a sham or camouflage.\n\nIn her testimony, the grievor referred to a narrative document that she had prepared. The employer did not object to her reliance on it and it was entered as an exhibit.\n\nThe grievor self-identifies as a Muslim and wears a hijab. She was employed by the CBSA as a summer student in 2012. In that role, she worked in the CBSA’s Corporate Services branch at Pearson International Airport (“Pearson”).", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-8", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 23–26", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Sharnreet Sandhu was the superintendent of Corporate Services at Pearson in the summer of 2012. She testified that the role of Corporate Services includes managing employee performance-management agreements and learning plans. She testified that the role of a summer student was as a “floater” and covering for those on leave. The role also involved clerical duties such as filing and photocopying. Superintendent Sandhu testified that the role included filing performance-management documents, as well as entering data in an electronic database related to learning plans.\n\nThe grievor testified that she was not given any training on the handling and storage requirements for sensitive information. Superintendent Sandhu testified that all summer students were provided with orientation training that would have included training on security and the high level of confidentiality required in the position. She also recalled meeting with the summer students and explaining the high level of confidentiality required of them.\n\nThe grievor was selected for the Officer Induction Training Program (OITP) in 2013, which is an online learning program followed by an 18-week in-residence program at the CBSA College in Rigaud, Quebec. This portion of the training program is unpaid, and the participants are not employees until they graduate.\n\nThe grievor graduated from the OITP in December 2013 and was offered a full-time appointment as an FB-02 officer trainee, starting January 13, 2014. Her work location was at Pearson in the Passenger Operations District.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-9", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "para 27", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The offer letter stated that the grievor was subject to a probationary period for the duration of the OID program or twelve months, whichever was longer, excluding any periods of leave without pay, full-time language training or leave with pay in excess of thirty consecutive days, in accordance with s. 61 of the PSEA. The duration of the OID program is a minimum of 12 months and a maximum of 18 months. Its length can be extended on a case-by-case basis at management’s discretion. At 12, 15, and 18 months, the officer trainee is evaluated based on an evaluation package. To be eligible for promotion, trainee officers are required to present evidence supporting their competency development, undergo a performance questionnaire quarterly review, and present proof of their successful completion of all core training. This evaluation package is reviewed by the Merit Review Board (MRB) and then the MRB provides a recommendation for promotion, further development, or for removal from the program. If at the time of the presentation of the Evaluation package the officer trainee has consistently demonstrated all required competencies and meets the FB-03 merit criteria, she will be recommended for appointment to a permanent FB-03 position.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-10", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 28–30", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "If an officer trainee is not successful at the 12-month mark or at the 15-month mark, an enhanced developmental plan is put together in consultation with the trainee, the OID program unit, and the trainee’s superintendent (supervisor). The plan is designed to support the trainee in developing the appropriate competencies and in performing at the required level. The officer trainee is then reassessed after an additional 3-month period (15 months and 18 months). If a trainee is not successful at the 18-month review, he or she is subject to removal from the OID program.\n\nThe grievor’s employment was not terminated because of her performance during the probationary period. I have included a summary of her performance only for the purpose of explaining the extension of her probationary period up to the time of the termination of her employment. She did not agree with some of the performance evaluations and provided testimony explaining the context of the evaluations and her explanations. In light of the fact that her performance during the probationary period was not a ground for her rejection on probation, I have not summarized that testimony.\n\nIn the grievor’s enhanced performance-development plan dated November 28, 2014 , it was noted that her performance to that date did not meet the requirements for appointment to the FB-03 level. It stated that “significant improvement” needed to be demonstrated for her to be considered for appointment at the 12-month mark of the OID program.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-11", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 31–36", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In the quarterly review dated December 20, 2014, the superintendent noted that the grievor had demonstrated some improvement over the previous quarter. The superintendent also noted that if she continued the momentum, she would meet all the expectations set out in the enhanced performance-development plan.\n\nOn January 15, 2015, the grievor was advised by Human Resources that she would continue in the OID program until the next time for assessment (at the 15-month mark), on April 13, 2015.\n\nAn Enhanced Performance Development Plan was prepared on February 4, 2015 and signed by the grievor on March 4, 2015.\n\nThe grievor was provided with a Performance Questionnaire prepared by her superintendent on April 2, 2015. It noted improvements in those areas that had been identified as requiring improvement as well as an isolated incident of poor performance that had not reoccurred (the superintendent noted that the grievor had “learned from her mistake”). The questionnaire was mostly positive and ended with “Good work Mariam!!”\n\nOn April 29, 2015, the grievor wrote an email to the OID program team noting that the 15-month assessment period had passed (April 13, 2015) and asking about the status of her participation in the OID program. On May 1, 2015, she received the following reply: …Senior management has advised us of a pending Labour Relations / Personal Security Investigation currently under way that needs to be resolved before proceeding with your acting assignment process under the OID Program. We will keep up-dated as the situation develops. …\n\nThe grievor received no other performance evaluation after this period and her evaluation package was not reviewed by the MRB.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-12", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 37–39", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On January 25, 2015, Constable A.B. stopped the grievor’s brother in his vehicle when the constable noticed that it had no visible licence plate. The occurrence report notes that on approaching the car, the constable first noticed a “strong odour” of marijuana (a controlled substance at that time). When the driver opened his window, the constable reported that there was evidence of marijuana, in plain view. He arrested the occupants of the car and conducted a search of the vehicle, which turned up a box that contained performance evaluations of FB officers from 2012 on letter-sized paper. The evaluations were marked “Protected” and contained the officers’ names as well as their personal record identification (PRI) numbers. The documents filed as exhibits in this hearing had the PRI numbers redacted. The parties agreed that the PRI numbers in the documents seized by Constable A.B. had not been redacted.\n\nAt the hearing, Constable A.B. identified the documents that he had retrieved from the vehicle. He testified that he was concerned enough about them to continue the investigation at the police station. The CBSA was contacted by a colleague of his and advised of the seized documents, which were returned to the CBSA the following day. The grievor’s brother was not charged with any drug offences and was released\n\nIn cross-examination, Constable A.B. was asked if the arrest had been lawful. He stated that he believed so. He disagreed with the assertion made by the grievor’s representative that he had not had sufficient grounds for an arrest. He also disagreed with the assertion that he needed a warrant to conduct a search of the vehicle.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-13", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 40–43", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Superintendent Sandhu testified that a PRI is a unique identifier. She also testified that performance evaluations were normally done on legal-sized paper. Superintendent Matthew Forrest, Superintendent of Corporate Operations, testified that a PRI is used to obtain salary information, for letters of employment, and for applying to other positions. He also stated that the performance evaluations contained phone numbers, which, along with an employee’s name, could be used in identity theft. The performance evaluations that were filed as exhibits in this hearing do not contain phone numbers of the employees – either their office phone number or their home phone number.\n\nOn February 17, 2015, the grievor received an emailed notification from Superintendent Forrest of a fact-finding meeting “regarding a security issue” on February 23, 2015. She was advised of her right to have a bargaining agent representative attend the meeting with her, in light of the fact that disciplinary action might result.\n\nThe grievor testified that when she received the notification, she was not aware of any security issues. She spoke to her bargaining agent representative, who asked if she was aware of any incident that management would want to investigate. She replied that she was not aware of any incident. She testified that she did not have regular communications with her brother before the incident.\n\nSuperintendent Forrest testified that the grievor’s representative did not ask for particulars before the meeting but that if he had, Superintendent Forrest would have explained “as far as [he] could”.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-14", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "para 44", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The fact-finding meeting took place on February 23, 2015. Superintendent Forrest was accompanied by a note-taker. The grievor attended with her bargaining agent representative. Superintendent Forrest prepared notes of the interview based on his notes and those of the note-taker immediately after the interview.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-15", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "para 45", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor was advised by Superintendent Forrest that her brother had been arrested for the possession of marijuana, and she was shown the police report of the arrest. She told Superintendent Forrest that she was completely unaware of the arrest. She also told him that the car referred to in the police report was her brother’s and that she had never driven it to work. Superintendent Forrest then told her about the employee evaluations found in the trunk of the car. In his disciplinary report, he set out the grievor’s reaction to being told that the documents had been found in her brother’s trunk as follows: … … Mariam claimed to have no idea of the occurrence. When presented with the documents that were found in the vehicle she claimed to recognize what they were and has handled them often, but claimed to never have seen these ones before. When asked why these documents were in the back of the vehicle, Mariam offered no explanation. She offered no clarification of how the documents were moved from the CBSA premises to that vehicle or why they would be reproductions of the originals… When asked directly if she removed the photocopied [sic] and then removed the documents from the workplace, Mariam denied the allegation. When asked how they would be in her/her brother’s possession she offered: “Like I said, I have no idea. I can’t speak to if I unknowingly took them.” … At the end of the interview she speculated that it may have been a mistake on her part but was reminded that she still needed to report these incidents to management. …", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-16", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 46–50", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor testified that the first time she learned of the incident involving her brother was at the fact-finding meeting. She testified that she was “dumbfounded” when informed by Superintendent Forrest. She also testified that she was truthful in her answers at the meeting.\n\nSuperintendent Forrest testified that in the fact-finding interview, there was no emotion in the grievor’s voice. In his disciplinary report, he expressed the opinion that she had not taken any responsibility for her actions or expressed any genuine remorse.\n\nAt the fact-finding meeting, the grievor was asked what she would have done had she been aware that the documents had left the CBSA’s offices. She replied that she would have immediately reported it to Superintendent Sandhu. She testified that at the end of the meeting, she was advised that the investigation would continue but that it was unlikely that she would have to speak to the investigators again.\n\nSuperintendent Forrest testified that the grievor or her bargaining agent representative could have provided further information after the fact-finding interview but did not. The grievor testified that at the end of her interview, she was under the impression that no more was required from her in the investigation.\n\nAfter the fact-finding interview of February 23, 2015, the grievor confronted her brother about the arrest and about the documents being found in the trunk of his car. She testified that there were items of hers, including a box of school documents, from 2012 in the trunk of his car. She had moved in June 2014 and testified that she had asked her brother to move some of her belongings. The box was left behind in the trunk. She testified that it mostly contained university assignments, readings, exams, and notes.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-17", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 51–53", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor testified that she must have picked up the documents at work inadvertently while putting her schoolwork in her bag and then shoved the pile of papers (the schoolwork and the performance evaluations) in a box and forgot them. The grievor testified that she had made a mistake in removing the protected documents from Pearson, stating, “I’m human.” She denied “knowingly” taking them.\n\nSuperintendent Sandhu testified that she did not understand how the grievor could have taken the performance appraisal documents inadvertently. She testified that the photocopier was not near a workspace and that once photocopied, the documents were supposed to be filed. The original documents were then sent to the CBSA’s Regional Headquarters. Superintendent Sandhu also testified that she had never seen the grievor studying while at work. In cross-examination, Superintendent Sandhu stated that it was possible that the grievor could have picked up the documents inadvertently.\n\nSuperintendent Forrest provided his disciplinary report to management on March 5, 2015. He recommended that in light of the seriousness of the grievor’s conduct, her security clearance be revoked and that her employment be terminated, as the CBSA could “… no longer trust or support her decision making ability”. He testified that he had no further involvement in the decision to terminate her employment.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-18", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 54–57", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On March 31, 2015, William Sawchuk, Senior Investigator, Personnel Security Screening Section, advised the grievor that a security interview was required. She was also provided with a “Security Interview Notification” that her reliability status or security clearance was to be reviewed “… as a result of concerns which have come to our attention”. The purpose of the interview was “… to provide [her] an opportunity to provide information in a forthright and honest manner with respect to the concerns that have arisen and to answer all questions truthfully”. She was also advised that she could be accompanied by an observer, who was not allowed to interfere in any way with the interview process.\n\nThe interview took place on April 9, 2015. The grievor brought a bargaining agent representative as an observer. The grievor told Mr. Sawchuk that the only plausible explanation of how the performance evaluations ended up in her possession was that she might have accidentally taken them off the premises along with her school materials.\n\nMr. Sawchuk spoke to Superintendent Forrest about Superintendent Forrest’s fact-finding meeting with the grievor. Superintendent Forrest testified that it was a brief conversation and that he was not aware of the contents of any security report. He testified that the disciplinary investigation was segregated from the security investigation, and vice-versa, for the investigations not to influence each other. He testified that he had no knowledge of Mr. Sawchuk’s interview of the grievor.\n\nThe grievor testified that her impression was that the security investigation was connected to the fact-finding investigation.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-19", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "para 58", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On June 2, 2015, the grievor was advised of a disciplinary meeting scheduled for June 3, 2015. On that day, Christine Durocher, Director, Passenger Operations, advised her that “… additional information has come to management’s attention which requires further consideration and validation” and that the disciplinary meeting was postponed. The grievor testified that she was never told what additional information had come to management’s attention.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-20", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "para 59", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The disciplinary meeting took place on June 15, 2015. The grievor had a bargaining agent representative with her. She was presented with a letter terminating her employment, signed by Jennifer Richens, Acting Director General of the CBSA’s Training and Development Directorate. The letter stated as follows: … …Throughout the course of the meeting with management [February 23, 2015 fact-finding] you denied having taken the protected documents, offered no explanation as to how the documents could have been removed from CBSA premises and had “no idea” as to how they came to be in the vehicle. As an employee of the CBSA you occupy a position of authority and have access to protected information and systems. With authority comes the expectation that your decisions and actions will be guided by the Agency’s Code of Conduct and values, including integrity. Based on a thorough review of this case, I am satisfied that you were made aware of the allegations and that you had the opportunity to present information to management that you wished to have considered prior to a decision being made. I find on the balance of probabilities that you removed protected documents from CBSA premises without authorization, failed to properly secure the documents and allowed them to be viewed by unauthorized persons. Moreover, the findings listed above along with your conduct during the investigation of the incidents are contrary to the Code of Conduct and demonstrate a lack of integrity that has irrevocably damaged the bond of trust that is fundamental to the employer-employee relationship.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-21", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 59–63", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Consequently, in accordance with the authority delegated to me by the Deputy Minister, and pursuant to section 62 of the Public Service Employment Act, please be advised that your employment is hereby terminated effective the date of receipt of this letter during the probationary period from your position as a CBSA Officer Trainee. As of the date of receipt of this letter, you are no longer authorized to report for duty, however, pursuant to section 62(2) of Public Service Employment Act, you will be paid 30 days in lieu of notice. …\n\nMs. Richens testified that she first became aware of concerns about the grievor when she was asked to review the documentation for the grievor’s rejection on probation. She reviewed the report prepared by Superintendent Forrest as well as the police report. She testified that this information gave her “grave concerns”. She testified that her decision to reject the grievor on probation was not a disciplinary decision but was based on integrity.\n\nIn cross-examination, Ms. Richens explained her reference in the termination letter to the grievor’s conduct during the investigation. She stated that she relied on the fact that the grievor expressed no remorse and took no responsibility for her actions.\n\nMs. Richens was asked by counsel for the employer why the grievor was allowed to stay in the workplace until the termination of her employment, given the concerns about her integrity. Ms. Richens stated that due process had to be followed.\n\nMs. Richens testified that it was normal to carry out two investigations — one for security, and the other with respect to labour relations — and that they would be parallel and separate. She testified that she had not seen the security investigation report before preparing for this hearing.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-22", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 64–68", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor testified that she believed that the employer would have considered the security investigation, as it contained her side of the story.\n\nMs. Richens testified that she had never met the grievor and that she had never seen the grievor before the hearing. She testified that she was shocked to hear the allegation of racism in a document that the grievor had provided to the Canadian Human Rights Commission (CHRC; discussed later in this decision). She testified that she had thought that the name “Malik” was of Hungarian origin, based on her experience, and that she had not been aware that the grievor was Muslim or wore a hijab.\n\nIn cross-examination, Ms. Richens noted that in the grievor’s performance assessments, some areas for improvement had been identified.\n\nThe grievor contacted Mr. Sawchuk after her termination of employment, and she testified that he told her that he would not complete his investigation or issue a report because her employment had been terminated. She did obtain a “Security Review Investigation Report” through an access-to-information request. The report, dated May 5, 2015, was signed by Mr. Sawchuk as well as others in the Personnel Security Screening Section but ultimately was not signed off by the Departmental Security Officer. Mr. Sawchuk’s recommendation was that the matter be referred to the Security Review Committee for consideration of a possible suspension of the grievor’s reliability status.\n\nThe grievor testified that the work environment at Pearson was toxic and alleged that colleagues had made racist comments to her.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-23", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 69–72", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "To place in context the grievor’s evidence relating to her complaint about the coverage of her by the Canadian Broadcasting Corporation (CBC) and her human rights complaint to the CHRC, it is necessary to first set out the events of January 2014.\n\nShortly after she started working at Pearson, on January 29, 2014, the grievor was asked if she would be willing to appear in a video being prepared by the CBSA called, “Arriving by Air”. She signed a consent and waiver form, allowing the CBSA to film her. The release was specific to that video. The name tag on her uniform was changed. The video was shown on terminal screens at Pearson commencing in December 2014. The grievor testified that she agreed to appear in it in “the interests of being a team player”.\n\nThe grievor testified that in the first week of March of 2015, a CBSA representative approached her, accompanied by a camera operator, while she was working at a booth in Primary Inspection. She was asked if she minded if she was put in “a couple of shots” while working. She testified that she was not informed about the purpose of the “shots” or that the camera operator was from the CBC.\n\nThe grievor was on leave from March 8 to 18, 2015, and had limited Internet access then. She testified that on March 10, 2015, she was advised by a friend that her photo was the main image in an online CBC article entitled, “March Break 2015: How to avoid an airport meltdown”. She testified that friends of hers shared the article on Facebook and “tagged” her. She also testified that the article was posted on the CBC Facebook page and that there were a large number of comments from the public, many of which were discriminatory. She provided some of the comments at the hearing. The photograph of her clearly shows her name tag on her uniform.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-24", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 73–74", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor testified that on or about April 3, 2015, she met with Acting Chief David Berndt to express her concerns about her personal safety as well as what she felt was a lack of consent. She followed up with an email to him in which she stated that had she been advised that the photograph of her would be used by the CBC, she would not have agreed to it. She also stated in the email that given the current anti-Islamic sentiment around the world, she did not appreciate being put in a national news article. She noted that although she had not experienced any specific threats, it was a safety concern for her, as she often worked late.\n\nMs. Durocher replied to the grievor on April 15, 2015, stating that it was the CBSA’s intention to meet with her and to provide a more fulsome response once inquiries had been completed.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-25", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "para 75", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On May 20, 2015, Ms. Durocher provided the following email response: I am writing you further to my email of April 20, 2015 concerning the CBC video taping of “March Break 2015”. As the Director of Passenger Operations District, my first and foremost concern is the safety of the staff and, in this regard, I had A/Chief Berndt meet with you to discuss precautions you may take, as you raised concerns. A/Chief Berndt met with you on May 2, 2015 and discussed your concerns, as well as, precautions you may consider. A/Chief Berndt has confirmed that he discussed the tools that have been developed to assist officers with safety concerns when not at work. He has advised me that you understood the precautions available, however, your main concern with the matter was related to your not fully understanding the purpose of the video footage. In this regard, I have followed up with Communications and they have confirmed that you did provide verbal consent and were advised that CBC was taking the footage for a March break video. Communications has confirmed that only volunteers that consent/agree to be filmed and have their names visible are used in video footage. They have assured me that if an individual expresses any concerns with being taped they will guarantee that they are not included in the footage. However, I understand that in this particular incident you did not fully understand what the footage was being used for and, therefore I have requested that a more thorough discussion and/or consent is required before future taping occurs at Passenger Operations District. I understand that you have not had any specific threats stemming from this video footage and would request, that if you do, that you advise Management immediately. …", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-26", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 76–80", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor requested a meeting with Ms. Durocher, whose assistant scheduled one for June 2, 2015. The grievor reiterated her concerns to Ms. Durocher about the CBC article and the use of her image. She testified that she expressed her dissatisfaction with the CBSA investigation and the response to her concerns.\n\nFollowing the meeting, the grievor wrote to Ms. Durocher on June 15, 2015, denying that she had provided consent for the taping. She stated, “I cannot understate how upsetting this matter is to me, given the other stressors I am currently facing …”.\n\nMs. Richens testified that she had no knowledge of the CBC article until making her preparations for this hearing. She testified that she was not made aware of this issue and that it did not factor into her decision to terminate the grievor’s employment.\n\nThe grievor testified that she believed that someone would have mentioned her complaint about the CBC coverage to Ms. Richens but admitted that she had no proof.\n\nThe grievor filed a complaint with the CHRC on June 15, 2016, a year after her termination. She alleged that she had been discriminated against on the grounds of race, colour, and religion by how she was treated in an adverse, differential manner and by the termination. In a report dated June 26, 2018, the CHRC determined that it was “… plain and obvious that this complaint cannot succeed”. The report recommended that the complaint be dismissed as frivolous, under s. 41(1)(d) of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA).", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-27", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 81–84", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor was given an opportunity by the CHRC to respond to the report. She provided it with undated submissions. A significant part of her submissions consists of argument. I have summarized the relevant parts of her argument in the summary of the arguments section later in this decision. In her submissions, she wrote about the finding of the protected documents in her brother’s car and corrected the statement in the CHRC report that she had removed protected documents from the workplace while she was on probation, as follows: …The respondent says that the investigation determined that the complainant had removed protected documents from the workplace while she was a probationary officer trainee. This statement is not true. Not once did I remove a single document while I was an officer trainee. I unknowingly took paperwork home that I assumed was my own coursework, in 2012, while I was an administrative student. I moved in 2014 and had asked my brother to help me move some of my belongings to my new residence; these belongings included a box full of academic coursework. I was unaware that there were protected CBSA documents in that box, with my coursework.\n\nLater in her response, she stated that she agreed that there was evidence of negligence on her part in 2012 but that there was no evidence of malfeasance.\n\nThe CHRC reviewed the submissions and dismissed the complaint on September 28, 2018. The grievor did not apply for a judicial review of the CHRC’s decision.\n\nThe following is a summary of the arguments made at the hearing, in addition to additional submissions made by teleconference call on February 12, 2020.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-28", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 85–89", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer submitted that I did not have jurisdiction over this grievance and that the proper procedure for the grievor was a judicial review application to the Federal Court.\n\nThe employer referred me to Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.), and Tello. It stated that it was required only to provide an employment-related reason for the termination of the grievor’s employment. In this case, it submitted that it had an employment-related reason and that the grievor had admitted her negligence in her CHRC submissions.\n\nThe employer submitted that the removal of the performance appraisals from the workplace was a serious issue. It did not have to prove any intent to remove them. In the alternative, it argued that it was more likely than not that the grievor knew about the existence of the documents. The employer submitted that the chain of events as described by the grievor was not plausible.\n\nThe employer also submitted that the grievor’s discrimination allegations were simply wild allegations without any substantive support. The employer also noted that the grievor demonstrated a lack of remorse for her actions.\n\nThe employer submitted that it had met its burden of proof and that the grievor had not met her burden to show that the termination of employment was a sham. The employer noted that the decision-maker, Ms. Richens, was not aware of the grievor’s issues with the CBC. There was no evidence to support retaliation by the CBSA for her raising those issues.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-29", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 90–96", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer submitted that the discrimination issues raised by the grievor had been addressed by the CHRC and had been dismissed. It submitted that these issues should not be relitigated and relied on the principle of issue estoppel; see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44. The employer stated that these were the same issues and the same parties and that the grievor was estopped from raising these issues in this proceeding.\n\nIn the alternative, the employer stated that Ms. Richens knew only the grievor’s gender and that she was not aware of the grievor’s race or religion. The employer submitted that there was no basis for determining that the termination of employment was tainted by discrimination.\n\nIn conclusion, the employer submitted that the grievor had failed to meet her burden and that the grievance should be dismissed.\n\nThe grievor submitted that the termination of employment was done in bad faith and that it was a planned and purposeful act. She stated that her probationary status was improperly extended in bad faith.\n\nThe grievor submitted that the arrest of her brother and the search of his car were illegal. She submitted that the police officer did not have probable cause to search the vehicle.\n\nThe grievor submitted that the testimony of Superintendent Forrest was not reliable. He testified that he was not aware of the security investigation, but there is evidence that he had a detailed conversation with the security investigator.\n\nThe grievor submitted that the security investigation report contained information that would not support a termination of employment and that Ms. Richens should have considered it.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-30", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 97–102", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor doubted that Ms. Richens was not aware of the issues the grievor raised about the CBC report. She stated that it was likely that Ms. Richens was informed of it by Ms. Durocher.\n\nThe grievor alleged that the CBSA promoted racism and that she experienced racism from both passengers and CBSA employees.\n\nThe grievor submitted that her situation has many similarities to those raised in Niedermeiser and Treasury Board (Revenue Canada - Customs and Excise), PSSRB File No. 166-02-27859 (19971022), [1997] C.P.S.S.R.B. No. 111 (QL). In that case, protected documents were found in the grievor’s boyfriend’s car, and a suspension was substituted for a termination of employment. The only difference, the grievor submitted, was that she was on probation and had been deliberately kept on it.\n\nThe grievor submitted that the true motive for her termination was the fact that she had raised issues about her privacy and compromised safety as a result of the CBC’s publication of her image. She also questioned the seriousness of the employer’s stated reason for the termination, since she had been permitted to continue working after it became aware that the protected documents had been in her possession.\n\nThe grievor submitted that she was honest, forthright, reliable, and consistent in her testimony. She submitted that her termination was tainted by bias, racism, and a lack of due process. She submitted that she should be reinstated and fully compensated.\n\nThe employer submitted that there were many issues related to the grievor’s performance in December 2014 and that for that reason, her probation was extended. The employer submitted that the next window for ending the probationary period was at the 18-month mark.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-31", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 103–106", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer submitted that the Niedermeiser case did not involve a rejection on probation. It submitted that the lengthy suspension substituted in that case bolstered the employer’s case that the reason for the rejection on probation was employment-related.\n\nI requested further submissions from the parties relating to a decision of the PSLRB on pre-employment conduct and a rejection on probation, namely, Doucet v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 145. Those submissions were made on February 12, 2020, by teleconference call.\n\nIn Doucet, the employer discovered that the probationary employee had engaged in an inappropriate relationships with inmates while working on a casual basis and before commencing her probationary period. The adjudicator issued a preliminary decision, holding that the employer could not rely on evidence from before the grievor’s probationary period.\n\nIn that case, the adjudicator determined that the grievor did not know of the rule against inmate relationships when she was employed on a casual basis. The rule had not been clearly communicated to her and there was no evidence that the grievor was presumed to have known that rule. The adjudicator also determined that the employer could have discovered the behaviour when it interviewed her for her appointment as a probationary employee. The adjudicator then held that the employer could not rely on the grievor’s pre-employment conduct in its decision to reject her on probation.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-32", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 107–108", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer submitted that Doucet was wrongly decided. It stated that neither of the elements (knowledge of the rule and discoverability of the misconduct) addresses whether the decision to terminate was a disguised disciplinary measure, i.e., a sham or camouflage. Counsel noted that the adjudicator stated explicitly (at paragraph 65), “My role as an adjudicator is to determine whether the evaluation method was fair and reasonable …”. To support this proposition, the adjudicator cited two arbitration decisions in which there is no equivalent to ss. 209 or 211 of the PSLRA; i.e., the arbitrators had jurisdiction to consider the reasonableness of the rejection on probation. Counsel submitted that the adjudicator in Doucet was categorically wrong in her assessment of her role under the PSLRA.\n\nIn the alternative, the employer stated that the decision in Doucet was distinguishable on the facts. In the case before me, counsel for the employer said that the grievor had testified that she was aware of the confidentiality rules and the rule against removing such documents from the workplace. Counsel also submitted that their removal was not something that the employer could have been aware of at the time the grievor was recruited.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-33", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 109–112", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In the further alternative, the employer submitted that the proposition that pre-employment matters are “irrelevant” to the assessment during the probationary period (see paragraph 70 of Doucet) is without a logical foundation. Its counsel submitted that nothing in the jurisprudence or leading labour law texts dealing with the issue of probation stands for the proposition that the discovery of pre-employment evidence relating to suitability cannot be relied upon to reject on probation. Nothing in the PSEA limits the evidence that a deputy head can rely on when rejecting someone on probation. Counsel submitted that the employer’s position was that there is no basis in law or logic to suggest that the discovery of evidence from the pre-employment period during the probationary period must be ignored when determining a person’s suitability for a job.\n\nThe employer submitted that the Doucet decision should be given no weight.\n\nThe grievor submitted that she should have been assessed solely on her performance during the probationary period. She submitted that the employer did not question her performance during the probationary period.\n\nFor the reasons set out in this section, I have determined that the employer had an employment-related reason for terminating the grievor’s employment during the probationary period and that the grievor did not meet her burden of showing that the rejection on probation was a sham or camouflage. Therefore, I have determined that the grievance must be dismissed.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-34", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 113–115", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I have not addressed the employer’s position that the appropriate forum for challenging the reasonableness of a termination of employment while on probation is the Federal Court. My role as a panel of the Board is to determine if I have jurisdiction over the grievance before me. It is not appropriate for me to suggest an alternate forum for addressing a grievor’s issues.\n\nSome of the evidence in this hearing related to the grievor’s overall performance during her probationary period. The grounds set out in the termination letter did not include any performance-related concerns during the probationary period. Therefore, the evidence of Ms. Richens relating to “other performance concerns” is not relevant to her decision to terminate the grievor’s employment. I find that the evidence on the grievor’s performance during the probationary period is relevant only with respect to her allegations of bad faith and to providing context for her position on the law.\n\nThe grievor made allegations at the hearing about discrimination being a factor in her termination of employment. The employer submitted that she was prevented from relying on these allegations because of issue estoppel. Danyluk establishes three preconditions for the operation of issue estoppel: (1) the same question has been decided in earlier proceedings, (2) the earlier decision was final, and (3) the parties to that decision or their privies are the same in both the proceedings. If these three preconditions are met, the decision maker must still determine whether, as a matter of discretion, issue estoppel ought to be applied.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-35", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 116–118", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In this case, the parties are the same, and the decision was final (the grievor did not refer the CHRC’s decision for judicial review). However, I do not find that the CHRC decided the same question. It addressed discrimination allegations in employment, but it did not squarely address the issue in this grievance — whether the employer appropriately terminated the grievor’s probationary employment. In addition, I am not being asked to determine the grievor’s rights under the CHRA but to determine whether the employer acted in bad faith by terminating her employment. Therefore, I find that issue estoppel does not apply in the circumstances of this grievance.\n\nThe grievor made allegations of discrimination in the workplace, including of anti-Muslim comments and a toxic workplace. I have not considered them, for two reasons. Firstly, the grievance did not allege human rights discrimination and simply referred to the disciplinary action, so the issue of discrimination on the basis of race or religion is not properly before me. Secondly, these allegations were raised for the first time in this grievance process at the hearing.\n\nThe grievor alleged that the search of her brother’s car was illegal. In light of her admission that the protected documents had been removed from the workplace in 2012, whether they were obtained improperly is not relevant to this proceeding.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-36", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 119–120", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The basis for determining my jurisdiction over a rejection on probation was succinctly stated as follows in Penner where the Federal Court of Appeal referenced Jacmain v. Attorney General, [1978]: … … an adjudicator seized of a grievance by an employee rejected on probation is entitled to look into the matter to ascertain whether the case is really what it appears to be. That would be an application of the principle that form should not take precedence over substance. A camouflage to deprive a person of a protection given by statute is hardly tolerable. In fact, we there approach the most fundamental legal requirement for any form of activity to be defended at law, which is good faith…. … an adjudicator … is not concerned with a rejection on probation, as soon as there is evidence satisfactory to him that the employer’s representatives have acted, in good faith, on the ground that they were dissatisfied with the suitability of the employee for the position…. … … It may be that this dissatisfaction with suitability arose from misconduct or misbehaviour by the employee, but that does not render the dissatisfaction any less real and legitimate nor does it permit us to confuse the rejection with a disciplinary sanction. …\n\nThe assessment steps in the OID program came to a halt for the grievor on May 1, 2015, when she was advised that the labour relations and personal security investigations needed to be resolved prior to proceeding with the OID program process. The grievor’s employment was terminated before the end of the 18-month probationary period.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-37", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 121–122", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer has met its initial burden as set out in Tello. The grievor was on probation, the probationary period was still in effect at the time of termination and her employment was terminated within the probationary period. There is no dispute that she received compensation in lieu of notice, in accordance with the PSEA. She was also provided with a letter outlining the reason for the termination.\n\nThe burden then shifted to the grievor to demonstrate that the termination was not for an employment-related reason but was exercised in bad faith or was a sham. The grievor’s burden is described as follows in Tello (at paragraphs 110 and 111): [110] If a deputy head terminates the employment of a probationary employee without any regard to the purpose of a probationary period — in other words, if the decision is not based on suitability for continued employment — that decision is one that is arbitrary and may also be made in bad faith. In such a case, the termination of employment is not in accordance with the new PSEA. [111] … The grievor bears the burden of showing that the termination of employment was a contrived reliance on the new PSEA, a sham or a camouflage. If the grievor establishes that there were no legitimate “employment-related reasons” for the termination (in other words, if the decision was not based on a bona fide dissatisfaction as to his suitability for employment: Penner at page 438) then the grievor will have met his burden. Apart from this change to the burden of proof, the previous jurisprudence under the former PSEA is still relevant to a determination of jurisdiction over grievances against a termination of a probationary employee.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-38", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 123–124", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor argued that her probationary period was unnecessarily extended before her termination. I do not have jurisdiction over the management of a probationary process. My jurisdiction is limited to determining if the rejection on probation was a sham or camouflage. Performance issues were identified in November 2014, before the discovery that the protected documents had been removed, and the grievor received an enhanced performance plan. There was a further enhanced performance plan prepared in February 2015, after the discovery of the documents. Although her performance had improved, as evidenced by her last evaluation by her superintendent, the evaluation process was put on hold due to the ongoing fact-finding investigations. This was a legitimate action by the employer, in light of the allegations relating to her previous employment as a student. She was rejected on probation prior to the next stage of the evaluation process (at 18 months). The grievor has not convinced me that the extension of her probationary status was done in bad faith. The suspension of the evaluation at the 15-month period was for an employment-related reason.\n\nThe grievor admitted that she had protected documents in her possession since 2012. She testified that she must have inadvertently put them in her bag with her school texts and then placed the contents of the bag in a cardboard box. The box then ended up in her brother’s car when she moved in 2014. The employer suggested that this was implausible.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-39", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 125–128", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In cases involving probation, a decision-maker need only determine if the factor relied upon by the employer is an employment-related reason. This is not a disciplinary grievance in which determining whether conduct was inadvertent or deliberate would be necessary to assess the appropriateness of the discipline. However, I find it plausible that the documents ended up in the grievor’s bag without her making a conscious decision. But she remains responsible for failing to discover them and then inadvertently storing them in her brother’s car.\n\nI do not need to determine whether the grievor intended to remove protected documents from the workplace. It was her responsibility not to have protected documents in her possession. She appeared to recognize her negligence of not checking her bag or the box that she put them in. I am satisfied that the employer had an employment-related reason for the rejection on probation.\n\nIn the termination letter, Ms. Richens also referred to the grievor’s conduct during the investigation as having been contrary to the CBSA’s “Code of Conduct”. The letter refers to the grievor having denied taking the documents and having offered no explanation as to how they could have been removed or how they came to be in her brother’s car.\n\nThis allegation is not an accurate reflection of the content of the fact-finding interview. Although the grievor offered no explanation, she did not deny that she had taken them. She stated in the fact-finding interview that the removal of the documents might have been a mistake on her part. This is not a denial that she removed them from CBSA premises.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-40", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 129–132", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In addition, I accept that it is plausible that the grievor did not know how the documents ended up in her possession. In fact, at the hearing, she was still only speculating on how they ended up in her possession. However, she has consistently accepted that they were in her possession inadvertently.\n\nI will also address the statement of Superintendent Forrest that the documents could have resulted in identity theft. In my view, that statement is speculative and based on an underlying assumption (the presence of personal phone numbers) that is not supported by the evidence.\n\nIn Tello, I found that the employer does not have to prove all the allegations it relied on in a rejection on probation. The requirement is for it to provide an employment-related reason. In this case, it did not establish that the grievor denied taking the documents. However, I find that it still had an employment-related reason for the rejection on probation.\n\nThe grievor asserted that Ms. Richens should have considered the security investigation interview in her decision making. The fact-finding process for human resources purposes is kept separate from security investigations at the CBSA, which was done in this case. The testimony of Ms. Richens was clear that she did not review any of the security investigation documents (the interview or the draft report). The content of the security interview and the fact-finding interview are roughly similar.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-41", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 133–137", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor speculated in the fact-finding interview that the removal of the protected documents might have been “a mistake on her part”. In the security interview, she provided more details when she speculated that she might have accidentally taken them off the premises along with her school materials. Apart from setting out the possible way in which the documents ended up in her possession, the essence of her response was the same in both investigations — she mistakenly took them.\n\nI find that the information from the security investigation was not materially different from the information obtained through the fact-finding investigation.\n\nThe employer relied largely on the removal and discovery of the protected documents as the basis for the grievor’s termination of employment. As noted, the grievor’s action took place before she was hired as an FB-02 officer trainee.\n\nDoucet is the only decision in the federal public sector that squarely addresses the issue of pre-employment conduct in rejection-on-probation cases. The employer suggested that Doucet was wrongly decided. I find that I do not need to address that allegation, as the facts in the grievance before me are distinguishable from those in Doucet.\n\nIn Doucet, the adjudicator found that the employer could have discovered the grievor’s inappropriate behaviour before she was hired. In this case, the grievor admitted that she did not know about having the documents in her possession until the fact-finding interview in February 2015. Therefore, the employer could not have possibly discovered this pre-employment conduct until contacted by the police in January of 2015.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-42", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 138–139", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor relied on Niedermeiser to support her position that the termination of her employment was excessive. Niedermeiser related to the termination of employment of an employee who was not on probation. The analysis of a grievance of a rejection on probation is fundamentally different from the analysis of a disciplinary termination of employment. Therefore, I find that that decision is of no relevance in the grievance before me.\n\nThe grievor also argued that the employer could not have had real concerns about her integrity and reliability as she was allowed to continue with her regular duties and had continued access to protected documents and databases after the employer was advised of the removal of documents. In a grievance of termination for misconduct, the fact that the grievor was allowed to stay in the workplace would be a factor in determining rehabilitative potential. However, during the probationary period, the same disciplinary principles do not apply. In a rejection on probation, the employer needs to have an employment-related reason. The strength of that reason is not relevant.", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-483604-43", + "doc_type": "caselaw", + "act_code": "2020 FPSLREB 64", + "act_short": "Malik", + "act_name": "Malik v. Deputy Head (Canada Border Services Agency)", + "section": "", + "citation": "Malik v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 64", + "marginal_note": "paras 140–142", + "heading": "Discipline and termination grievance of a CBSA employee", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor alleged that the real reasons for her termination were the issues she raised with the CBSA about the CBC’s use of her image. I first note that the employment-related reason for the rejection on probation arose before she was photographed. The fact-finding report and Superintendent Forrest’s recommendation were also prepared before she raised concerns about the CBC photograph. She alleged that Ms. Richens must have known about her dissatisfaction with the CBSA as to how the matter was handled. However, Ms. Richens denied any knowledge of the complaint, and the grievor did not establish any evidence that this was a factor in Ms. Richens’ decision to terminate the grievor’s employment.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe grievance is dismissed. June 9, 2020 Ian R. Mackenzie, a panel of the Federal Public Sector Labour Relations and Employment Board", + "current_to": "2020-06-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/483604/index.do" + }, + { + "id": "fpslreb-500554-1", + "doc_type": "caselaw", + "act_code": "2021 FPSLREB 72", + "act_short": "Andruszkiewicz", + "act_name": "Andruszkiewicz v. Canada Border Services Agency", + "section": "", + "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", + "marginal_note": "paras 1–2", + "heading": "Unfair labour practice complaint involving the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On November 23, 2020, Valerie Andruszkiewicz (“the complainant”) made a complaint under s. 190 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; \"the Act”) alleging that the respondent, the Canada Border Services Agency (“the Agency”), committed an unfair labour practice within the meaning of s. 185 of the Act and, in particular, s. 186(2).\n\nSection 186(2) of the Act states this: 186 (2) No employer, no person acting on the employer’s behalf, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, shall (a) refuse to employ or to continue to employ, or suspend, lay off, discharge for the promotion of economy and efficiency in the Royal Canadian Mounted Police or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person (i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an employee organization, or participates in the promotion, formation or administration of an employee organization, (ii) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Part or Part 2 or 2.1 (iii) has made an application or filed a complaint under this Part or Division 1 of Part 2.1 or presented a grievance under Part 2 or Division 2 of Part 2.1, or (iv) has exercised any right under this Part or Part 2 or 2.1.", + "current_to": "2021-06-21", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" + }, + { + "id": "fpslreb-500554-2", + "doc_type": "caselaw", + "act_code": "2021 FPSLREB 72", + "act_short": "Andruszkiewicz", + "act_name": "Andruszkiewicz v. Canada Border Services Agency", + "section": "", + "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", + "marginal_note": "paras 2–4", + "heading": "Unfair labour practice complaint involving the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "(b) impose, or propose the imposition of, any condition on an appointment, or in an employee’s terms and conditions of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Part or Part 2 or 2.1; or (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from (i) testifying or otherwise participating in a proceeding under this Part or Part 2 or 2.1, (ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2 or 2.1, or (iii) making an application or filing a complaint under this Part or Division 1 of Part 2.1 or presenting a grievance under Part 2 or Division 2 of Part 2.1.\n\nThe complainant alleges that the Agency conducted an arbitrary, discriminatory, and bad-faith investigation into a harassment complaint she made against senior management. She alleges that in the course of its investigation, the Agency violated Treasury Board policies, including the investigation guide for the Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process. She alleges that it left out testimony and that it destroyed evidence.\n\nShe states that she grieved the handling of the investigation to the final level of the grievance process. She also states that she was provided with a copy of the employer’s final-level decision with respect to her grievance on August 27, 2020.", + "current_to": "2021-06-21", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" + }, + { + "id": "fpslreb-500554-3", + "doc_type": "caselaw", + "act_code": "2021 FPSLREB 72", + "act_short": "Andruszkiewicz", + "act_name": "Andruszkiewicz v. Canada Border Services Agency", + "section": "", + "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", + "marginal_note": "paras 5–12", + "heading": "Unfair labour practice complaint involving the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "By way of corrective action, she seeks an apology, salary lost (including holiday and overtime pay), and reimbursement for loss of leave, as well as a fair and transparent reinvestigation.\n\nOn December 22, 2020, the Agency replied to the complaint, objecting to its timeliness and requesting, in the alternative, that it be dismissed summarily because the complainant’s allegations could not support a finding of violation of a prohibition contained in s. 186(2) of the Act.\n\nThe complainant filed the complaint on November 23, 2020. She stated that she learned of the facts underlying the complaint 88 days earlier, when she received the final-level decision on her grievance on August 27, 2020.\n\nThe employer denied the complainant’s grievance because it considered that an external investigator handled her harassment complaint properly and that the Treasury Board Secretariat’s policies were followed.\n\nThe Agency submits that, contrary to the time limit set out in s. 190(2) of the Act, the complainant filed the complaint more than 90 days after she became aware of the facts at issue.\n\nThe Agency argued that the final-level decision on the grievance did not provide the complainant with any new information that she did not already know and that she should have filed the complaint within 90 days of learning of the results of the investigation of her harassment complaint.\n\nThe complainant is not represented by a bargaining agent.\n\nIn June 2018, the complainant made a harassment complaint in which she alleged that her manager, her director, and her director general had discriminated against her since 2016. The Agency retained an external investigator to investigate some of the allegations raised in the harassment complaint.", + "current_to": "2021-06-21", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" + }, + { + "id": "fpslreb-500554-4", + "doc_type": "caselaw", + "act_code": "2021 FPSLREB 72", + "act_short": "Andruszkiewicz", + "act_name": "Andruszkiewicz v. Canada Border Services Agency", + "section": "", + "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", + "marginal_note": "paras 13–17", + "heading": "Unfair labour practice complaint involving the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The investigation took place between December 2018 and May 2019, and during that time, two additional allegations were added to the investigator’s mandate. In June 2019, the investigator reported that the allegations did not relate to harassment, as defined in the Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process.\n\nThe Agency informed the complainant and the alleged harassers of the investigator’s findings in the summer of 2019.\n\nOn October 7, 2019, the complainant grieved the handling of the harassment investigation.\n\nOn August 17, 2020, the employer denied the grievance at the final level of the grievance process. The employer’s decision concluded in part as follows: … The investigations, led by an impartial external investigator, both concluded that the allegations raised in your complaints did not meet the definition of harassment and thus, were unfounded. After a review of the entire process, I am confident that it was undertaken in accordance with the relevant Treasury Board Secretariat harassment directives and policies and see no reason to intervene. …\n\nThe complainant alleges that the Agency conducted an arbitrary, discriminatory, and bad-faith investigation into a harassment complaint she made against senior management. She alleges that in the course of its investigation, the Agency violated Treasury Board policies, including the investigation guide for the Policy on Harassment Prevention and Resolution and the Directive on the Harassment Complaint Process. She alleges that it left out testimony and that it destroyed evidence.", + "current_to": "2021-06-21", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" + }, + { + "id": "fpslreb-500554-5", + "doc_type": "caselaw", + "act_code": "2021 FPSLREB 72", + "act_short": "Andruszkiewicz", + "act_name": "Andruszkiewicz v. Canada Border Services Agency", + "section": "", + "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", + "marginal_note": "paras 18–20", + "heading": "Unfair labour practice complaint involving the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On October 7, 2019, the complainant grieved the handling of the harassment investigation. The employer denied the grievance at the final level of the grievance process. The employer’s decision notes this in part: … The following is in response to the above grievance in which you grieved that the harassment complaint process was mismanaged by the CBSA and the investigator. As corrective action, you requested compensation for lost salary, including overtime and shift differential pay, a return of leave used since 2016, and for an independent, non-commissioned employee of the federal government to review the findings of the investigations. …\n\nIt is apparent that after exhausting the grievance process, the complainant raised before the Board what is in essence and substance the same issues as those in her grievance, alleging this time that the Agency engaged in an unfair labour practice when it handled her harassment complaint.\n\nThe complainant in this case is not represented by a bargaining agent, and her terms and conditions of employment are not in a collective agreement. She does not have access to the adjudication process for her grievance that alleged that the Agency failed to follow Treasury Board policies with respect to harassment investigations. Any right that the complainant had with regards to the employer’s decision that denied her grievance should have been pursued before the Federal Court by way of an application for judicial review of that decision: see ss. 18 and 18.1 of the Federal Courts Act (R.S.C”, 1985, c. F-7).", + "current_to": "2021-06-21", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" + }, + { + "id": "fpslreb-500554-6", + "doc_type": "caselaw", + "act_code": "2021 FPSLREB 72", + "act_short": "Andruszkiewicz", + "act_name": "Andruszkiewicz v. Canada Border Services Agency", + "section": "", + "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", + "marginal_note": "paras 21–23", + "heading": "Unfair labour practice complaint involving the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This brings me to the objection of timeliness raised by the Agency. As mentioned previously, the complainant is raising now essentially the same issues as those in her grievance. She claims to have known or learned of the events giving rise to this complaint when she was provided, on August 27, 2020, with the employer’s decision denying her grievance. I note with interest that she did not respond to the Agency’s assertion that she did not learn from that decision anything new that she did not already know when the Agency provided her, in the summer of 2019, with the investigator’s findings on her harassment complaint.\n\nAlthough there is not yet before the Board any evidence adduced through a contradictory process with regards to the timeliness issue, I do believe that the complainant ought to have provided a response to the Agency’s objection. Further, based on the fact that the complainant offered no explanation in that regard, I think it more likely than not that she has no plausible explanation for filing her complaint more than 90 days after being informed of the outcome of her harassment complaint. It should be kept in mind that the complaint relates to the Agency’s handling of her harassment complaint and not to the handling of her grievance.\n\nAlthough my findings regarding the Agency’s objection to timeliness dispose of the complaint, for the sake of completeness, I will consider nevertheless whether the complainant’s allegations may constitute an unfair labour practice within the meaning of the Act. In other words, I will consider whether, taking the facts alleged by the complaint as true for the sole purpose of deciding on the Agency’s request for summary dismissal, there is an arguable case of a violation of a prohibition contained in s. 186(2) of the Act.", + "current_to": "2021-06-21", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" + }, + { + "id": "fpslreb-500554-7", + "doc_type": "caselaw", + "act_code": "2021 FPSLREB 72", + "act_short": "Andruszkiewicz", + "act_name": "Andruszkiewicz v. Canada Border Services Agency", + "section": "", + "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", + "marginal_note": "paras 24–26", + "heading": "Unfair labour practice complaint involving the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In Laplante v. Treasury Board (Department of Industry and the Communications Research Centre), 2007 PSLRB 95, Ms. Laplante made a complaint under s. 190 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) alleging unfair labour practices by her employer as specified in ss. 186(1) and (2). She made a number of allegations, including that her employer had changed her working conditions based on discrimination. Other employees had complained against Ms. Laplante, alleging harassment on her part.\n\nMs. Laplante’s employer changed her working conditions so that she would no longer work with the employees who had complained against her, in accordance with its harassment policy. After investigating, Ms. Laplante’s employer determined that the other employees’ harassment complaints were unfounded.\n\nMs. Laplante’s employer did not immediately reinstate her to her former functions. She also filed grievances based on the same facts as her complaint, and she made distinct harassment complaints. The Public Service Labour Relations Board found that Ms. Laplante’s employer had not contravened ss. 186(1) or (2) of the Public Service Labour Relations Act. Furthermore, the Public Service Labour Relations Board found that Ms. Laplante’s harassment allegations were not grounds for a complaint under s. 190, and it dismissed the complaint.", + "current_to": "2021-06-21", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" + }, + { + "id": "fpslreb-500554-8", + "doc_type": "caselaw", + "act_code": "2021 FPSLREB 72", + "act_short": "Andruszkiewicz", + "act_name": "Andruszkiewicz v. Canada Border Services Agency", + "section": "", + "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", + "marginal_note": "paras 27–31", + "heading": "Unfair labour practice complaint involving the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The Public Service Labour Relations Board set out its reasons on Ms. Laplante’s employer’s objection to the complaint at paragraphs 68 through 83. I will recite those reasons in part, as follows: [68] … I agree with the employer’s argument that an unfair labour practice complaint must be based on a breach of the prohibitions set out in the provisions of section 185. [69] To decide the preliminary objection, I must determine whether the allegations of the complainant’s complaint can be considered prohibitions under the new Act. …\n\nThe Public Service Labour Relations Board then examined Ms. Laplante’s complaint in light of the specific provisions in ss. 186(2)(a) and (b) of the Public Service Labour Relations Act.\n\nAt paragraph 80, the Public Service Labour Relations Board dealt with Ms. Laplante’s harassment complaints, stating as follows: [80] I come to the same conclusion with respect to both the harassment complaints and the grievances listed by Ms. Laplante in this complaint, which she filed against certain managers. The circumstances described in the complaint [sic] do not state why, among the reasons set out in subparagraphs 186(2)(a)(ii) to (iv) of the new Act, those managers allegedly failed to comply with the prohibitions against unfair labour practices specified … in those circumstances.\n\nIn the result, the Public Service Labour Relations Board allowed Ms. Laplante’s employer’s objection that the complaint was not one that the Public Service Labour Relations Board could decide under s. 190 of the Public Service Labour Relations Act.\n\nThe grounds set out in s. 186(2) of the Act prohibit discrimination by an employer based solely on the situations described in s. 186(2).", + "current_to": "2021-06-21", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" + }, + { + "id": "fpslreb-500554-9", + "doc_type": "caselaw", + "act_code": "2021 FPSLREB 72", + "act_short": "Andruszkiewicz", + "act_name": "Andruszkiewicz v. Canada Border Services Agency", + "section": "", + "citation": "Andruszkiewicz v. Canada Border Services Agency, 2021 FPSLREB 72", + "marginal_note": "paras 32–39", + "heading": "Unfair labour practice complaint involving the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Sections 186(2)(a)(i), (b), and (c) relate to a person’s membership or participation in an employee organization.\n\nSections 186(2)(a)(ii), and (c)(i) relate to a person’s participation as a witness in a proceeding under Part 1, 2 or 2.1 of the Act.\n\nSections 186(2)(a)(iii), and (c)(iii) relate to a person making an application or filing a complaint under Part 1 of the Act or a grievance under Part 2 or Division 2 of Part 2.1.\n\nSection 186(2)(iv) relates to a person exercising a right under Part 1, 2, or 2.1 of the Act.\n\nSection 186(2)(c)(ii) relates to a person making a disclosure with regards to a proceeding under Part 1, 2 or 2.1 of the Act.\n\nEven by taking all the facts alleged by the complaint as true for the sole purpose of deciding on the Agency’s request for summary dismissal, I can see no arguable case of a violation of a prohibition contained in s. 186(2) of the Act.\n\nFor all of the above reasons, the Board makes the following order: (The Order appears on the next page)\n\nThe complaint is dismissed. June 21, 2021. David Olsen, a panel of the Federal Public Sector Labour Relations and Employment Board", + "current_to": "2021-06-21", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/500554/index.do" + }, + { + "id": "fpslreb-359013-1", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 1–2", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On May 27, 2013, the Public Service Alliance of Canada (“the complainant” or “the bargaining agent”) filed a complaint under section 190 of the Public Service Labour Relations Act (“the Act”) against the Treasury Board (Canada Border Services Agency) (“the employer” “the respondent”). At the time of the filing of the complaint, the parties were engaged in bargaining for a new collective agreement for the Border Services Group (FB). The collective agreement between the complainant and the respondent for the FB group expired on June 20, 2011 (“the collective agreement”). For the purpose of this decision, it should be noted that the terms and conditions contained in the collective agreement were maintained in force, at the time of the filling of the complaint, by virtue of section 107 of the Act.\n\nEssentially, the complainant alleged that the respondent violated sections 106 and 107 and subsection 186(1) of the Act by preventing it from distributing a bargaining agent meeting invitation via the “desk drop” method at some of the employer’s locations (Exhibit G-1, tab F). The complainant maintained that the respondent interfered with its right to communicate with its members. It also argued that the long-standing practice of distributing its documents via desk drop is a term and condition of employment that may be embodied in a collective agreement and as such could not be interfered with by the employer by virtue of section 107.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-2", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 3–5", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On June 14, 2013, the respondent maintained that the complaint was untimely since it was filed after the 90 days prescribed by subsection 190(2) of the Act. The respondent also submitted that the complaint was without merit in that in addition to being told many years ago that using desk drop to distribute its documents was not authorized, prior approval by the employer was required for that type of notice. The respondent asserted that the complainant had other means of communication provided for under the collective agreement and that it had home contact information for its members. The respondent also argued that there has been no breach of the freeze provided for under section 107 and that the employer merely exercised its discretionary authority to authorize access to its premises in accordance with the negotiated collective agreement.\n\nSix witnesses testified on behalf of the complainant. The employer called four witnesses. Each party introduced a book of exhibits.\n\nChantal Rajotte was the complainant’s first witness. She has been a local president of the Custom and Immigration Union for six years and had been involved in bargaining agent business before that. Ms. Rajotte indicated that the complainant’s members in the Ottawa-Hull area work at several facilities, such as 191 Laurier Avenue West, 250 Tremblay Road, Isabella Street and St. Laurent Boulevard.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-3", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 6–7", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Ms. Rajotte described the desk drop method as a method that the complainant had resorted to in the past to distribute documents after working hours or at lunch. Ms. Rajotte testified that in 2011, she distributed documents such as Christmas invitations, bargaining agent calendars and election information via desk drop at the work locations mentioned earlier. She desk dropped roughly 150 to 200 of each document. Ms. Rajotte indicated that in January 2013, she also desk dropped about 150 to 200 bargaining agent calendars at the Laurier Avenue West, Metcalfe Street and Tremblay Road buildings (Exhibit G-1, tab M). Ms. Rajotte testified that every time she distributed via desk drop, she never asked the employer for permission, since that was not her job and she was not required to do so. Ms. Rajotte added that over the years, she also received documents from her bargaining agent in the desk drop fashion.\n\nMs. Rajotte explained that to disseminate information, bulletin boards are not as effective as using desk drop because in most buildings, the bulletin board is located at the back of a corridor. Also, bulletin boards are divided in two, one side for the bargaining agent and one side for management which means that the notices are often covered by information from other bargaining agents or the employer. As a result, bargaining agent members cannot really see what is on the bulletin board. In response to a question from counsel for the respondent, Ms. Rajotte indicated that on numerous occasions, the bargaining agent complained about the location of the bulletin boards and that it might have grieved.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-4", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 8–9", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As to the specific events leading to this complaint, Ms. Rajotte testified that on April 5, 2013, she sent an email (Exhibit G-1, tabs F and G) to the director of human resources (HR) for the employer about distributing an invitation to a meeting on collective bargaining (Exhibit G-2). Ms. Rajotte explained that the purpose of her email was simply to inform management about the distribution of a notice of a meeting to be held on May 7, 2013 (Exhibit G-1, tab F), that it was done only as a courtesy and that she did not need the employer’s approval for the distribution. Ms. Rajotte indicated that she had created the notice (Exhibit G-1 tab F), on her own time at home. Ms. Rajotte testified that while the employer allowed notices to be posted on bulletin boards, as evidenced in its reply email of April 8, 2013, it did not permit the distribution via desk drop (Exhibit G-1, tab F). In cross-examination, Ms. Rajotte agreed that the invitation was posted on the bulletin boards one month before the scheduled event.\n\nMs. Rajotte also indicated that in the past, she distributed documents on secure floors of some buildings but never asked for the employer’s permission. She indicated that in the instances mentioned earlier, she was not sure if approval had been sought from the employer for the desk drop. It was not her job to seek that approval. Ms. Rajotte explained that for her, distributing documents through the means of desk drop was bargaining agent business as per article 12 of the collective agreement and, as such, did not require the employer’s approval. Ms. Rajotte testified that on numerous occasions, the bargaining agent complained about the locations of bulletin boards.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-5", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 10–12", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Francine Stuart also testified for the complainant. Ms. Stuart is retired. She indicated that she worked in several locations in her career, such as the Connaught Building in Ottawa and 191 Laurier Avenue West, and that over the years, she held several bargaining agent positions. Ms. Stuart indicated that the practice of using the desk drop to distribute the bargaining agent’s documents goes back many years and that in 1991, she did it on weekends. She indicated that she desk dropped documents such as bargaining agent calendars, branch election material, collective bargaining updates and Christmas party invitations.\n\nAs for the bulletin boards, Ms. Stuart complained that some buildings do not have them. In other buildings, bulletin boards are not easily accessible or are located on secured floors with restricted access, meaning that the bargaining agent may not have access to them. Ms. Stuart indicated that the bargaining agent complained about that at some of the Union/Management Consultation Committee (UMCC) meetings.\n\nMs. Stuart referred to the UMCC meeting of September 9, 2008, at its item 7 of Exhibit E-1, tab 14A. She indicated that she was president of the bargaining agent local at that time and that the bargaining agent asked for bulletin board postings and desk drops to be put on the agenda since it found it difficult to post its notices. Ms. Stuart testified that at that September 9, 2008 UMCC meeting, the bargaining agent asked for a link to be created in Outlook and that a locked cover be installed on the bulletin board; it told management that otherwise, it would use desk drop. Ms. Stuart testified that management replied that it would get back to it on the issue of desk drop; it never did.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-6", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 13–14", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In cross-examination, Ms. Stuart testified that in 2003 and 2004, after experiencing difficulty using bulletin boards, the bargaining agent tried to use desk drops to distribute information to its members but was told by the employer that it could not desk drop. Also, she agreed that it was told not to desk drop documents by the employer during the bargaining round for the FB group that took place previous to the round in issue here. Ms. Stuart indicated that while in the past, the bargaining agent filed grievances on the issue of access to bulletin boards, the matter was never referred to adjudication. Ms. Stuart indicated that the bargaining agent had been allowed to desk drop because the employer did not want to be bad mouthed by the bargaining agent.\n\nAs for her email of January 16, 2008 to Lauralee Larose (Exhibit E-1, tab 10), Ms. Stuart maintained that it was meant only as a courtesy and that she was not asking permission since it was bargaining agent business for which the employer’s permission was not required. Ms. Stuart indicated that she did not challenge Ms. Larose’s January 16, 2008, response that there was no issue with it as long as the calendars were left in non-work areas.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-7", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 15–16", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Charles Khoury was the complainant’s next witness. He testified that as the first vice president for the bargaining agent, he desk dropped the collective bargaining update in issue in March 2013 at the 150 Isabella Street building (Exhibit G-2). Mr. Khoury indicated that he distributed about 100 copies of it with a colleague, Insa Fall, at lunch during the days preceding the event referred to in the update. Mr. Khoury testified that desk drop was the best method to distribute information to bargaining agent members. Mr. Khoury indicated that the turnout rate improves when members are invited to a meeting through a desk drop as opposed to being invited through a notice posted on a bulletin board.\n\nMr. Khoury testified that for the March 2013 desk drop (Exhibit G-2), he told his manager that he would be doing it and gave him a copy of the document to be distributed. As for Mr. Fall, Mr. Khoury indicated that Mr. Fall talked to his manager, who was fine with the desk drop distribution as long as it did not involve the electronic network. Mr. Khoury also testified that he desk dropped the bargaining agent’s calendar in 2012 (Exhibit G-1, tab N). He indicated that he did not ask permission to distribute the calendars and that one manager even asked for copies for her staff. Mr. Khoury agreed that the bargaining agent might have a list of its members; however, he did not know whether it was accurate.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-8", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 17", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Robert Lafortune also testified on behalf of the complainant. He testified that he has been a shop steward for the complainant as well as its vice president of communications. Mr. Lafortune indicated that for the 10 years he was in Ottawa, he desk dropped documents for the complainant at least once a year, sometimes twice. He indicated that the documents that he distributed varied from calendars to collective bargaining updates to business cards with addresses on them. Mr. Lafortune testified that six years ago or so, he carried out desk drop distributions at 250 Tremblay Road and 2265 St. Laurent Blvd. in Ottawa. Mr. Lafortune indicated that he did it after working hours for the Tremblay Road building. As for the St. Laurent Blvd. building, since it is secure, with limited access, he asked for permission to get in, and then carried out the distribution at lunch. Mr. Lafortune indicated that he had permission from management to distribute the business cards and that he distributed over 800 of them on employees’ desks. Mr. Lafortune also testified that in October 2008, an election was underway for representatives of the bargaining agent, and he desk dropped his resumé. Mr. Lafortune testified that he probably passed out 1000 copies of his resumé after working hours and that he did not seek management’s permission Mr. Lafortune testified that he never asked for permission for a desk drop; he would simply tell management that he was about to do it and never received any complaints.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-9", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 18–22", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As for the UMCC meeting of September 9, 2008 (Exhibit G-1, tab C, page 5), Mr. Lafortune indicated that not much was said about desk drop except that it should be done after working hours and that it should not require management’s permission, as opposed to the bulletin board, for which management’s approval on the content of a notice was required before posting it. In cross-examination, Mr. Lafortune testified that he did not recall that the employer did not agree with the desk drop method.\n\nRichard Carrier and Lynn Smith Doiron, both involved with the union, also testified on behalf of the complainant, essentially about the fact that in the past, they desk dropped bargaining agent materials with the knowledge of their managers, who never complained.\n\nScott Pryor testified for the respondent. Mr. Pryor stated that he is currently the manager of the Trusted Trader program with the employer and that he has been in that position for the last three years. Mr. Pryor indicated that he has 21 years of service with the employer.\n\nMr. Pryor testified that it is not routine for the complainant to desk drop documents and that the bargaining update document (Exhibit G-2) was the first time, in March 2013, that it did so. Mr. Pryor testified that he became aware by talking to his director that the update was desk dropped by Mr. Fall, who works in his team and is a shop steward for the complainant.\n\nMr. Pryor testified that in addition to being desk dropped, the notice (Exhibit G-2) was posted on the bulletin board. He indicated that the bulletin board is about 5’ x 9’ in size and that it is easily accessible to employees. It is located on the 11th floor of the Isabella Street building, outside the kitchen area.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-10", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 23–27", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Pryor testified that Mr. Fall told him that he desk dropped the bargaining update document during his lunch break. Mr. Pryor indicated that not everyone in his group works the same hours or has the same lunch and break periods. He indicated that lunch and breaks are staggered.\n\nMr. Pryor testified that when he found out about the desk drop of the bargaining update document, he told Mr. Fall that there was a procedure to follow for the distribution of documents and that there was also a bulletin board for the purpose of communicating with employees.\n\nMr. Pryor testified that there were other means that the complainant could have used to communicate with its members, such as distributing the material outside the Isabella Street building and in its lobby.\n\nMr. Pryor stated that he is not the one who decided for the employer what documents can be desk dropped by the complainant. He testified that if he were asked for permission to desk drop documents by the complainant, he would have to refer that person to his director.\n\nRon Goulet also testified on behalf of the respondent. Mr. Goulet is currently director of the Travellers System and Reporting Division for the employer. Mr. Goulet’s office is located on the 4th floor at 250 Tremblay Road. He testified that he does not recall documents being desk dropped by the complainant at that location. He indicated that on his floor, employees have different lunch and break times and that some employees start their days earlier, some later. He stated that there is a bulletin board on his floor that has been used by the complainant, which also recently distributed documents to its members outside the building.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-11", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 28–31", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Ann Kline testified on behalf of the respondent. She is the director general of the Trade Program for the employer. She has been working at 150 Isabella Street since 2012. She testified that desk dropping documents was not a routine means of distribution for the complainant and that except for the distribution of calendars and the incident of March 4, 2013, she was not aware of other instances of desk dropping by the complainant.\n\nMs. Kline testified that on or about March 4, 2103, she noticed the bargaining agent’s notice (Exhibit G-2) on one of her assistant’s desks; another assistant also had a copy. Ms. Kline indicated that she also saw other employees outside their cubicles discussing what she assumed was the notice. The day after that, Ms. Kline saw the notice again. She took a picture of it and sent it to the employer’s labour relations group since many questions were raised about it. Ms. Kline stated that she was told that Mr. Fall was the one who had distributed it.\n\nMs. Kline testified that employees do not take their lunches or breaks at the same time. Ms. Kline explained that just because an employee distributes a document during his or her break time does not mean that those who receive it will read it only when they are on break. Ms. Kline indicated that she is not sure who has the authority for the employer to approve the desk drop of documents.\n\nMs. Kline indicated that there is a bulletin board on every floor at the Isabella Street location and that on the 11th floor it is located at the entrance of the kitchen area. She also testified that recently, the complainant distributed handouts in the lobby of the building, sent material via mail or via the employer’s email system, or posted information on its website.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-12", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 32–37", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Ms. Larose was the respondent’s last witness. She is currently the employer’s labour relations manager. Ms. Larose testified that the employer does not allow the distribution of documents by the complainant or for that matter any other bargaining agent by the desk drop method.\n\nMs. Larose testified that in the National Capital Region, the employer’s employees are located in 24 buildings. Some of those buildings, like the one on St. Laurent Blvd, are 24/7 operations. Ms. Larose indicated that all the employer’s buildings have bulletin boards except the one located at 11 Sussex Drive, but no employees from the FB group work there. Ms. Larose also stated that only the employer’s president has the authority to grant permission for desk dropping.\n\nMs. Larose testified that she is not aware of any instances when the employer allowed desk dropping and that the employer’s position goes back a few years. Even when it was part of the Canada Customs and Revenue Agency, it still did not allow the method of desk dropping.\n\nMs. Larose said she was surprised to hear the complainant claim that it has desk dropped in the past without the employer’s approval. Ms. Larose testified that the employer’s permission is always required before resorting to desk dropping.\n\nMs. Larose stated that desk drop was never provided for under the collective agreement and that this issue was never raised during the last round of collective bargaining.\n\nMs. Larose explained that desk dropping is just not permitted, regardless of when it is done, since while the person performing the desk drop may be on his or her own time, it does not mean that the employee who receives the material is on break. The practice of desk dropping may impact the employer’s operations.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-13", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 38–40", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Ms. Larose testified that the issue of desk dropping was raised at the UMCC meeting on September 9, 2008 (Exhibit E, tab 14-A, page 5). Ms. Larose indicated that at that meeting, the complainant raised the issues of posting to bulletin boards and the time it took to obtain a response from the employer for such a posting, along with desk dropping. Ms. Larose testified that while the employer undertook to look into the issue of its response time for posting on bulletin boards, the outcome of that meeting was that the employer’s permission was always required for posting. As for the desk drop issue, the employer refused to reply since it was simply not provided for in the collective agreement. Ms. Larose testified that she did not recall any further discussion on the matter and that no grievance or complaint was filed on the issue of desk dropping. Ms. Larose indicated that between September 9, 2008 meeting and March 2013, she was not aware that the complainant had raised the issue of desk dropping.\n\nMs. Larose testified that the bargaining agents have means other than desk dropping to communicate with their members, such as through a list of addresses of employees that is provided to the bargaining agents twice a year. The bargaining agents also have the employees’ email addresses, and can distribute documents outside buildings.\n\nMs. Larose testified that while the content of the bargaining update document (Exhibit G-2) was approved on time and was posted, the employer was still concerned about allowing it to be desk dropped. Ms. Larose indicated that the employer is concerned that if a document is desk dropped during working hours, it will be disruptive, since not all employees are on a lunch or another break at the same time.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-14", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 41–43", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As for the specific event involving the notice of the bargaining agent’s meeting about a bargaining update, Ms. Larose explained that her colleague, Danielle Monette-Latouche, first received an email from Ms. Rajotte, informing her that the complainant intended to distribute the notice to employees. Ms. Larose explained that Ms. Rajotte’s email was forwarded to Stéphanie Houde, who advised Ms. Rajotte on April 8, 2013 that while the notice was approved for posting on the bulletin board, it was not approved for desk dropping or distribution through the employer’s electronic system (Exhibit G-1, tab F).\n\nMs. Larose testified that the complainant, during this or earlier rounds of negotiations did not make any specific demand about the desk dropping of documents.\n\nMs. Larose also pointed out that the report of the public interest commission (PIC) dealing with the FB group issued on June 5, 2013, did not include desk drop distribution as an issue in dispute between the parties (Exhibit E-1, Vol. 1, tab 4). Ms. Larose also referred to examples of complainant notices that in the past were or were not allowed to be posted on the bulletin board (Exhibit E-1, Vol. 1, tabs 5 and 6) as well as an email from management reminding managers about the bargaining agents’ need to obtain management’s approval before posting notices on bulletin boards (Exhibit E-1, Vol. 1, tab 8).", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-15", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 44–46", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Ms. Larose explained that in 2008, she was asked for permission to desk drop calendars from the complainant. Ms. Larose testified that while she did not recall a discussion on the matter, she remembered denying the desk drop request. She also stated that Ms. Stuart did not indicate at the time that she would do it anyway (Exhibit E-1, Vol. 1, tab 10). Ms. Larose stated that no grievance or complaint was filed as a result of the desk drop denial.\n\nMs. Larose indicated that at Ms. Stuart’s request, the bulletin board and desk drop issues were placed on the agenda for the September 9, 2008 UMCC meeting (Exhibit E-1, Vol. 1, tabs 11 to 13). Ms. Larose also explained that the draft minutes of that UMCC meeting were distributed on November 22, 2008 to all UMCC members, including representatives for the complainant, who did not raise any issue with the outcome on the specific issue of bulletin board postings and desk drops (Exhibit E-1, Vol. 1, tab 14-A). Ms. Larose testified that those minutes were approved and that the complainant did not grieve or complain on the issue (Exhibit E-1, Vol. 1, tab 14-A).\n\nMs. Larose concluded by saying that Ms. Rajotte filed a grievance on April 29, 2013, in response to the employer’s refusal to allow her to desk drop the notice, the subject of which is similar to the present complaint. Ms. Larose explained that while the grievance was denied at the second level of the grievance process, the final decision on the matter is still outstanding (Exhibit E-1, Vol. 2, tab 53). In cross-examination, Ms. Larose admitted that the employer has no policy on desk dropping.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-16", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 47", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On the issue of timeliness, the complainant argued that it was within the 90-day time limit prescribed by subsection 190(2) of the Act when it filed the complaint. Counsel for the complainant argued that while a debate occurred at the UMCC meeting of September 9, 2008, the complainant never received a clear answer from the employer. It is only on May 1, 2013 that the complaint really crystallized. It is only when the complainant’s national president wrote to the respondent’s vice president that the complainant received a clear indication of the employer’s position. Before the issue of desk dropping was brought up, there was no clear policy about the employer’s position; there was nothing in writing. Counsel for the complainant stated that desk dropping is its free-standing right and that each time the employer refuses to allow it, the bargaining agent has a right to file a complaint.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-17", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 48–49", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As for the merits of the case, counsel for the complainant argued that by refusing to allow the desk drop distribution of the notice about an upcoming bargaining update meeting, the employer violated sections 106 and 107 and subsection 186(1) of the Act. Essentially, counsel for the complainant argued that “desk drop” is a term and a practice that has been ongoing for many years and is a way, during non-working hours, for the complainant to share information with its members. Counsel for the complainant argued that this is not a case about access to the respondent’s property but rather about the employer preventing the bargaining agent from exercising its right to communicate with its members. Counsel for the complainant insisted that by distributing documents during non-working hours to its members, even though it happened at the employer’s premises, it did not use the employer’s facilities. Therefore, by preventing the complainant from exercising its free-standing right to communicate and represent its members, the employer violated paragraph 186(1)(a).\n\nCounsel for the complainant reviewed the evidence and argued that on April 5, 2013, all Ms. Rajotte wanted was to communicate with her fellow members that a meeting on collective bargaining was to take place (Exhibit G-1, tab F). She forwarded the notice to the employer’s representative only as a courtesy. Ms. Rajotte’s understanding was that she did not need the employer’s permission since the notice (Exhibit G-1, tab F) dealt with bargaining agent business. Counsel for the complainant insisted that no reason was given to explain the employer’s refusal of the desk drop method. Counsel for the complainant maintained that there was no evidence that desk dropping would be disruptive.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-18", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 50–52", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the complainant argued that the method of desk dropping calendars, bargaining updates and elections propaganda has been used several times in the past at different locations and buildings and that it was a long-standing practice that had always been done without incident and with management’s knowledge.\n\nCounsel for the bargaining agent argued that the distribution of its material during non-working hours is a lawful activity and is a free-standing right that it can pursue as long as it does not interfere with the employer’s operations. In this case, counsel for the bargaining agent maintained, there is no evidence to support that such a disruption occurred.\n\nCounsel for the complainant argued that article 12 of the collective agreement deals with the employer’s premises. This matter is not about the use of the employer’s premises. Counsel for the complainant maintained that the employer cannot use its property right to limit the bargaining agent’s ability to communicate with its members. Counsel for the complainant maintained that this case is about whether the method of dissemination of information from the complainant to its members was reasonable and whether the collective agreement expressly prohibits the desk drop method. Counsel for the complainant argued that if the parties wanted to prohibit the method of desk dropping, they would have done so expressly in the collective agreement, and while article 12 deals with posting on bulletin boards, it does not prohibit any other kind of communication, such as desk dropping.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-19", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 53–55", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the complainant insisted that the right for a bargaining agent to communicate with its members is crucial and permissible as long as it is exercised in a reasonable fashion. In the present matter, counsel for the complainant maintained that the evidence demonstrated that issues arose in the past with access to bulletin boards and the most effective way for the complainant to communicate with its members. Moreover, the notice about the upcoming meeting on an update on collective bargaining was very neutral, and it contained nothing detrimental to the employer’s interests. Therefore, the employer’s position is not reasonable.\n\nCounsel for the complainant argued that desk dropping has been a long-standing practice between the parties. It has been done for several years without complaint and without interference to the employer’s operation. It is a legitimate activity for the complainant that is not prohibited by the collective agreement.\n\nIn addition to the argument that the employer violated paragraph 186(1)(a) of the Act, counsel for the complainant also asked that I find that the respondent violated section 107, which deals with the freeze of all terms and conditions of employment that could be included in a collective agreement once notice to bargain is served.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-20", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 56", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the complainant argued that the evidence demonstrated that there had been a long-standing practice in place before notice to bargain was given on February 21, 2011, in which the complainant could resort to the desk-drop method with the employer’s knowledge and without its permission. Counsel for the complainant asked me to apply the “business as usual” approach and to find a pattern in the past in which desk dropping was performed, which could have been embodied in a collective agreement, as per section 107 of the Act. Therefore, by unilaterally stopping that long-standing practice after the notice to bargain was issued, the employer also violated section 107.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-21", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 57", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In support of his arguments, counsel for the complainant referred me to the following decisions: Fording Coal Ltd. v. United Steelworkers of America, Local 7884, [1998] B.C.C.A.A.A. No. 98 (QL); Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2012 PSLRB 58; Heffernan and White v. Treasury Board (Post Office Department) (1981), 3 L.A.C. (3d) 125; Merriman and Union of Canadian Correctional Officers – Syndicat des agents correctionels du Canada (UCCO-SACC-CSN) v. MacNeil and Justason, 2011 PSLRB 87; Canadian General Electric Co. v. United Electrical, Radio and Machine Workers of America (1952), 3 L.A.C. 909; Plainfield Children’s Home v. Service Employees Union, Local 183 (1985), 19 L.A.C. (3d) 412; Time Air Inc. (1989), 77 di 55; Reynolds-Lemmerz Industries, [1994] O.L.R.D. No. 4119 (QL); International Association. of Machinists and Aerospace Workers and District Lodge 147, National Association of Federal Correctional Officers v. Correctional Service of Canada, 2006 PSLRB 76; Air Canada v. Canadian Air Line Employees’ Ass’n (1980), 27 L.A.C. (2d) 289; Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees v. American Airlines Inc. (1981), 43 di 114; CFCN Television (1988), 76 di 8; Hamilton-Wentworth District School Board, [2002] O.L.R.D. No. 2676 (QL); Andres et al. v. Canada Revenue Agency, 2009 PSLRB 36; Quan v. Canada (Treasury Board), [1990] 2 F.C. 191 (C.A.); MacKenzie v. Treasury Board (Employment & Immigration Canada) and Public Service Alliance of Canada v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-21187, 21188, 21189 and 169-02-501 (19910620); Public Service Alliance of Canada v.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-22", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 57–58", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Treasury Board, 2011 PSLRB 106; Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46; The Queen in right of Canada as represented by the Treasury Board v. Canadian Air Traffic Control Association, [1982] 2 F.C. 80 (C.A.); Canadian Air Traffic Control Association v. Treasury Board¸ PSSRB File No. 148-02-186 (19910724); Canadian Air Traffic Control Association v. Treasury Board¸ PSSRB File No. 148-02-187 (19910502); Public Service Alliance of Canada v. Treasury Board, PSSRB File No. 148-02-118 (19860611); éthier v. Correctional Service of Canada and Union of Canadian Correctional Officers – Syndicat des agents correctionels du Canada - CSN, 2010 PSLRB 7; Roy v. Professional Institute of the Public Service of Canada, 2011 PSLRB 142; Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78; Boshra v. Canadian Association of Professional Employees, 2009 PSLRB 100; and Comiskey v. Jensen et al., 2012 PSLRB 22.\n\nOn the issue of timeliness, counsel for the respondent argued that the complaint should be dismissed since it was filed beyond the 90 days provided for in subsection 190(2) of the Act. Counsel for the respondent pointed out that the issue of whether the complainant can desk drop documents was dealt with at the UMCC meeting in September 2008, at which the respondent clearly indicated to the complainant that desk dropping would not be allowed. Counsel for the respondent maintained that the evidence clearly demonstrated that the complainant was made aware of the employer’s position at the UMCC meeting.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-23", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 59–64", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the respondent indicated that the time limit of 90 days referred to in subsection 190(2) of the Act cannot be extended by Public Service Labour Relations Board (“the Board”). Therefore, the complainant’s complaint should be dismissed as untimely.\n\nAs for the merits of the case, counsel for the respondent argued that the Board’s most recent jurisprudence stands for the proposition that any limitation on the employer’s rights must be prescribed in a collective agreement.\n\nCounsel for the respondent argued that this case clearly involves the use of the employer’s facilities. The notice, (Exhibit G-1, tab F), was to be distributed within the employer’s facilities and on the employer’s desks.\n\nEssentially, counsel for the respondent argued that the only way the complainant can claim the right to communicate with its members by using the employer’s property is if such a right has been negotiated through collective bargaining. The complainant must establish that such a positive right to communicate with members exists in the collective agreement.\n\nCounsel for the respondent argued that such rights for the complainant to communicate with its members using the employer’s facilities have been negotiated by the parties and are embodied in article 12 of the collective agreement under the title of “Use of Employer Facilities.”\n\nHowever, counsel for the respondent argued that article 12 of the collective agreement is self-contained and is limited to the use of bulletin boards and access to the employer’s premises. Counsel for the respondent stressed that no reference is made to desk drop.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-24", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 65–68", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the respondent insisted that a review of article 12 of the collective agreement indicates that the parties addressed the issue of the use of the employer’s facilities, that the complainant negotiated exceptions to the employer’s exclusive control over the workplace, that the complainant has negotiated an effective way to communicate with its members in the workplace within or outside the work hours in every workplace, and that, in clause 12.02, the complainant has recognized that the distribution of material on the employer’s property is in fact a use of the employer’s property.\n\nFor counsel for the respondent, if the bargaining agent wants to increase its ability to expand its information distribution at the workplace, it should be done at the bargaining table.\n\nCounsel for the respondent argued that the complainant’s position that it has a right to desk drop would render article 12 of the collective agreement meaningless inasmuch as the bargaining agent could simply ignore article 12 when it wants to distribute information or material to its members.\n\nCounsel for the respondent argued that it was up to the complainant to file a policy grievance if it was dissatisfied with the way the employer addressed the issue of the bulletin board in article 12 of the collective agreement.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-25", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 69–71", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Reviewing the evidence, counsel for the respondent also concluded that the existing mechanisms as well as the bargaining agent’s ability to communicate outside the employer’s property have proved effective means of communication. Counsel for the respondent referred to the evidence that the bargaining agent is able to use its members’ home contact information, that the bargaining agent has its members’ personal email addresses, that the bargaining agent has a website that could be consulted by its members and that the bargaining agent can continue to distribute material outside the workplace.\n\nCounsel for the respondent insisted that in this case, the complainant had the employer’s approval to post the notice about the update on collective bargaining on bulletin boards one month before the event, which shows that the complainant was not prevented from communicating with its members in a timely fashion.\n\nAs to the law governing the use of the employer’s facilities, counsel for the respondent noted that the jurisprudence appears divided. Counsel for the respondent argued that the jurisprudence cited by the employer is more relevant to the employer’s property rights, collective bargaining and the employer’s statutory authority under the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA).", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-26", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 72", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the respondent referred me to sections 7 and 11 of the FAA, essentially stating that in this case, and contrary to the private sector, the FAA confers general management rights, including property rights, on the employer, which can be limited only through collective bargaining. Counsel for the respondent maintained that the parties have already negotiated provisions addressing the issues of communication and the use of the employer’s facilities as per article 12 of the collective agreement. Nothing in article 12 or in the whole collective agreement for that matter deals with desk dropping. The only way to expand on article 12 and thus restrict the employer’s general rights under the FAA is through collective bargaining.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-27", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 73–75", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the respondent concluded that, in addition, there is just no evidence to suggest that the employer violated its duty to bargain in good faith as per section 106 of the Act. Specifically, counsel for the respondent argued that in no way did the evidence support that the employer acted differently and discriminated against the complainant. He pointed out that the employer’s position vis-à-vis the issue of desk dropping has always been the same, regardless of bargaining agent. As for the issue of the prohibition imposed on the employer from interfering with the administration of a bargaining agent, referred to in subsection 186(1), counsel for the respondent indicated that the concept of “administration” contemplated in that subsection is an in-house issue and does not include communications between the bargaining agent and its members. Alternatively, he argued that the employer’s position is within its property rights and that the notice was posted well in advance on the bulletin boards. Thus, it cannot be argued that the employer prohibited the complainant from communicating with its members.\n\nAs for the complainant’s allegation that the employer also violated section 107 of the Act, which deals with the freeze period, counsel for the respondent argued that, in this case, the employer has always been consistent in its approach that desk dropping is not allowed. Therefore, it cannot be argued that the employer changed a term and condition of employment during the freeze period.\n\nFinally, counsel for the respondent concluded that the evidence demonstrated that the desk dropping of the notice had a negative impact on the employer’s operations.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-28", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 76", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In support of his arguments, counsel referred me to the following decisions: Babcock et al. v. Attorney General (Canada), 2005 BCSC 513; Brescia v. Canada (Treasury Board), 2005 FCA 236; Li v. Canada (Citizenship and Immigration), 2011 FCA 110; Merriman; Public Service Alliance of Canada v. Treasury Board, 2011 PSLRB 106; United Rubber, Cork, Linoleum and Plastic Workers of America v. Michelin Tires (Canada) Ltd., [1979] N.S.J. No. 794; Telus Communications Inc. v. Telecommunications Workers Union (2010), 195 L.A,C, (4th) 334; Bay v. Retail, Wholesale Department Store Union, Local 1000 (1990), 16 L.A.C. (4th) 298; Skeena Cellulose Inc. v. Industrial Wood and Allied Workers of Canada (I.W.A. Canada), [2002] B.C.L.R.B.D. No. 267 (QL); Canadian Union of Operating Engineers and General Workers v. Brookfield Management Services Ltd. (BCE Place), (2000) C.L.R.B.R. (2d) 238; Convention Centre Corp. v. C.U.P.E., Loc. 500 (Union Buttons) (1997), 63 L.A.C. (4th) 390; Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 46; Public Service Alliance of Canada et al. v. Canadian Grain Commission et al., [1986] 5 F.T.R. 51; Peck v. Parks Canada, 2009 FC 686; Almeida v. Canada (Treasury Board), [1991] 1 F.C. 266 (C.A.); Quan; Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 43; International Association of Machinists and Aerospace Workers and District Lodge 147, National Association of Federal Correctional Officers; Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2012 PSLRB 58; Pronovost v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 93; and Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-29", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 77–81", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the outset, I would like to point out that the parties to these proceedings referred me to 45 decisions. While some facts and issues involved in those decisions bear some resemblance to the ones in this complaint, they remain different. In addition, while I appreciated and considered the legal aspects of those decisions, I will not, with few exceptions, refer to them.\n\nThe issue I have to decide is whether the employer, by preventing the complainant from distributing through the desk drop method an invitation to its members to attend a meeting on collective bargaining, violated sections 106 and 107 and paragraph 186(1)(a) of the Act.\n\nBefore doing so, I must first address the employer’s argument that the complaint should be dismissed since it was not filed within the 90 days prescribed in section 190 of the Act.\n\nSubsection 190(2) of the Act reads as follows: 190. (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.\n\nEssentially, the employer argued that at the September 9, 2008 UMCC meeting, the complainant was clearly told that desk dropping would not be allowed and that the complainant then had 90 days from that date to file its complaint.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-30", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 82–85", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I am not convinced. I agree with counsel for the bargaining agent that the evidence is contradictory as to the parties’ understanding following the UMCC meeting of September 9, 2008, and for a long period after that. However, as of April 8, 2013, the undisputed evidence is that it was then clear to both parties that the employer’s position was not to allow desk dropping within its facilities. In my view, the 90-day limitation period runs from April 8, 2013, which in this case is the date on which the complainant knew for certain the action or circumstances giving rise to the complaint. The complaint was filed on May 13, 2013. It is therefore timely.\n\nI will turn now to the merits of the case. In this matter, the complainant bore the burden of proof and had to demonstrate that, by refusing to allow the desk drop of the invitation to a meeting on collective bargaining, the employer violated sections 106 and 107 and subsection 186(1) of the Act. I should also point out that no reference to the Canadian Charter of Rights and Freedoms was made during these proceedings.\n\nIt is important to keep in mind that in this case, the content of the invitation (Exhibit G-1, tab F) is not an issue. In other words, the parties admitted that there is nothing against the interests of the employer in that invitation. The employer’s refusal is not linked to the content of the invitation; as a matter of fact, the employer authorized its posting on the bulletin boards. The employer objected to its distribution method.\n\nEssentially, the complainant claimed that this matter is not about the employer’s property rights but rather about the fundamental right of the bargaining agent to communicate with its members and that it has a free-standing right to communicate with its members through desk drop.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-31", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 86–88", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As I understand it, the complainant’s argument is that it enjoys an unfettered right to communicate with its members regardless of the employer’s property rights. Moreover, as I will explain later, counsel for the complainant argued that even if I consider the employer’s property rights argument, this case should be distinguished from other decisions involving the employer’s property rights cited by counsel for the respondent.\n\nDealing first with the issue of employer’s property rights, I should point out that it is not disputed that the complainant distributed the notice on desks that belong to the employer, located within its facilities. I find that the distribution of material through the desk drop method involves the use of the employer’s property. For me, it is quite clear that the employer’s property, such as its desks and premises, were the conduit for the distribution, and that cannot be ignored.\n\nHaving concluded that the desk drop of documents involved the employer’s property, the question becomes whether the bargaining agent has an unfettered right to communicate that can be exercised regardless of the employer’s property rights?", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-32", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 89", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I do not think so. I agree that the rights of a bargaining agent, as a certified bargaining agent for employees, include the general right to communicate with its members. However, in my opinion, that right is not absolute and has to be balanced against, in this case, the employer’s property rights. In the present matter, I fail to see what authority would give the complainant a free-standing right to desk drop its communications using the employer’s facilities without its consent. As I understand counsel for the complainant’s argument, the bargaining agent in this case claims an unfettered right to communicate via desk dropping with its members that would trump the employer’s right to its property. Again, while I agree that the bargaining agent has a general right to communicate with its members, it does not have the right to use the employer’s facilities to do so unless that right is expressly provided for. In other words, and in this specific context, article 12 of the collective agreement speaks to the bargaining agent’s ability to use the employer’s premises to communicate with its members. The parties have dealt with this issue in article 12 of the collective agreement and it covers all issues related to the bargaining agent’s communication with its members using the employer’s premises.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-33", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 90", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I agree with counsel for the respondent that some of the respondent’s rights are provided by virtue of the legislation, namely, sections 7 and 11 of the FAA, which deal with personnel management. Those provisions clearly give general authorities to the employer with respect to personnel management. In my view, only a clear indication in legislation or other contractual authorities can set aside those rights of the employer. As decided in Canadian Grain Commission et al. at para 52: It is common ground that the general management rights conferred on the Treasury Board may be substantially circumscribed by negotiated terms and conditions of employment embodied in a collective agreement… This principle is also found in article 7 of the collective agreement which recognizes that the authority of management is limited by the terms and conditions of the agreement.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-34", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 91", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In this case, that is precisely what the employer has done. It deliberately agreed to limit its property rights by allowing the bargaining agent to use its property to communicate with its members. Both parties agreed at the bargaining table to the terms of article 12, which reads in part as follows: 12.01 Reasonable space on bulletin boards, in convenient locations, including electronic bulletin boards where available, will be made available to the Alliance for the posting of official Alliance notices. The Alliance shall endeavour to avoid requests for posting of notices which the Employer, acting reasonably, could consider adverse to its interests or to the interests of any of its representatives. Posting of notices or other materials shall require the prior approval of the Employer except in the case of notices related to the business affairs of the Alliance, including posting of the names of Alliance representatives, and social and recreational events. Such approval shall not be unreasonably withheld. 12.02 The Employer will also continue its present practice of making available to the Alliance specific locations on its premises and, where it is practical to do so on vessels, for the placement of reasonable quantities of literature of the Alliance.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-35", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 92", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I believe that by agreeing with the bargaining agent to the terms of article 12 of the collective agreement, the employer agreed to a limitation of its property rights by allowing, subject to certain conditions, bargaining agents to use bulletin boards for communicating with their members. In my view, article 12 is self-contained and specific as to the limitations imposed on the employer. I do not believe that any other means of communication can be read into it, such as the right for bargaining agents to desk drop documents related to the business affairs of the Alliance on employees’ desks without the employer’s consent. While in this particular case the content of the notice that was to be distributed through desk drop is not an issue, nevertheless, the method, a desk drop, is not insignificant in a workplace and can be very disruptive. I am convinced that if the parties sought the need to embody the use of bulletin boards in a collective agreement, they could have also done so for the desk dropping of bargaining agent documents.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-36", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 93", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As mentioned, article 12 of the collective agreement not only deals with the employer’s property rights per se but also refers, in clause 12.01, to another means of communication for the bargaining agent with its members: the use of the bulletin board. With the negotiation and inclusion of article 12 in the collective agreement, clearly the employer limited its property rights, and at the same time, the bargaining agent negotiated some rights that gave it access to the employer’s property. I cannot help but conclude that in negotiating a clause on the use of bulletin boards, the bargaining agent recognized the employer’s property rights and felt at the time of the negotiation the necessity to incorporate in the collective agreement such a provision. Why did it do so if it has a free-standing right to communicate with its members that supersedes the employer’s property rights? Clause 12.01 includes the right, under certain conditions, for the bargaining agent to use the bulletin boards; it does not include a positive right for the complainant to use the respondent’s facilities for desk dropping. If the complainant wants to do so, it has to obtain the employer’s permission or to negotiate such a right in the collective agreement, as it did for the use of the bulletin boards.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-37", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "para 94", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In Merriman, the Board member examined whether the employer’s decision to deny Mr. Merriman access to the employer’s telephone system constituted an unfair labour practice under section 185 of the Act. The Board member decided at paragraphs 27 and 28 as follows: [27] . . . This raises the issue of the extent to which employer property is available to an employee organization for the purposes of communicating with and representing its members and whether the use of an employer’s telephone system by an employee organization is protected under the unfair labour provisions of the Act. [28] I note certain provisions in the applicable collective agreement … that are relevant here. Clause 9.01(a) requires the employer to make available to the employee organization “[r]easonable space on bulletin boards … for the posting of official … notices …” of the employee organization. This is a common provision in collective agreements that permits employee organizations to have access to what would otherwise be the exclusive property of the employer. Similarly, clause 9.01(b) permits the employee organization to use the employer’s electronic network to distribute information to members, with some conditions. Clearly, the objective of these provisions is to create a contractual right that permits the employee organization to use employer property for certain specified purposes. The corollary of these provisions is that, generally, an employee organization does not have the right to use employer property to communicate with its members. Where that right exists it is usually a result of collective bargaining. [Emphasis added]", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-38", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 95–96", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Moreover, to agree with the complainant’s proposition that it has an unfettered right to communicate through desk drop despite the employer’s property rights would in my view render clause 12.01 of the collective agreement completely meaningless. Under that scenario, the bargaining agent could then completely ignore clause 12.01 and just proceed with desk dropping or, in situations in which the employer denies the bargaining agent’s request for posting on a bulletin board, the bargaining agent could then simply distribute its documents through the desk drop method.\n\nCounsel for the complainant insisted that this case should be distinguished from other cases involving employer facilities such as bulletin boards, photocopiers, etc. For me, the action of desk dropping a document within the employer’s premises, on the employer’s desks, is clearly a use of the employer’s property. In my view, it can be likened to another means of communication, such as the use of a telephone within the employer’s facility. Looking at this very issue of a bargaining agent’s right to communicate and an employer’s property rights, the Board member decided as follows in Merriman, at paragraph 32: [32] … Again, the telephone system at issue is the property of the employer, it is subject to the control and regulation of the employer and I am unable to find in this case a legal restriction on how the employer uses its property.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-39", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 97–98", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Again, I am of the view that the distribution of the invitation to a meeting (Exhibit G-1, tab F) was clearly done by using the employer’s facilities. The complainant insisted that the desk drop was done outside working hours and that therefore there was no impact on the employer’s business operations. I am not convinced. The evidence is inconclusive as to when exactly the desk drops took place. However, it is clear from the evidence that employees’ lunch and break times differ and that the notice could well have been dropped on the desk of a working employee. Therefore, I cannot conclude that it was done outside working hours and that there was no impact on the employer’s operations.\n\nCounsel for the complainant argued that the evidence was that using bulletin boards is not always efficient, often due to their location, and that desk dropping better draws members’ attention. While issues might arise with location and with the time it takes to obtain the employer’s approval to post on bulletin boards, those are not reasons to bypass the mechanisms that, through collective bargaining, the parties have chosen for communications between a bargaining agent and its members using the employer’s property. While it appears that using bulletin boards may be frustrating at times for the complainant, it is up to the bargaining agent to challenge the problems related to bulletin boards through policy grievances or through collective bargaining.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-40", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 99–101", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the complainant also made the argument that by refusing distribution via desk dropping, the respondent prevented it from communicating with its members. I disagree. The undisputed evidence is that while the employer objected to distributing the notice through desk dropping, it nevertheless allowed for its posting pursuant to clause 12.01 of the collective agreement a month before the planned event. Therefore, I do not find that the employer prevented the bargaining agent from communicating with its members.\n\nMoreover, in the present matter, the communication and the method chosen to communicate should be distinguished. The employer did not object to the communication per se but objected to the method used by the complainant. The employer prohibited desk dropping. In Merriman, the Board member stated as follows at paragraph 30: [30] In my view, restricting how a member contacts his or her employee organization is not the same as preventing any contact at all; a distinction must be made between the communication and the mechanism or medium of the communication… [Emphasis in the original]\n\nMoreover, the evidence also disclosed that the complainant could have distributed the notice outside the employer’s premises, which was done in the past, could have used the list of employees that the employer provides it with twice a year to reach its members, or could have posted on its website the information about the upcoming meeting.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-41", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 102–103", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Therefore, with respect to its duty to bargain in good faith, I conclude that the employer did not violate section 106 of the Act. This issue of desk drop was simply never part of collective bargaining between the parties. I simply fail to see any relationship or evidence that this was an issue at the bargaining table or that this dispute intensified with collective bargaining.\n\nAs for subsection 186(1)(a) and (b) that deals with the formation and administration of an employee organization, the representation of employees and discrimination against an employee organization, it is clear to me that this subsection is designed to prevent the employer’s involvement in internal union affairs. There is simply no allegation or evidence of such in the present matter. There is also no evidence or even any allegation that the employer discriminated against the complainant; the evidence disclosed that all bargaining agents were treated the same.", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359013-42", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 138", + "act_short": "PSAC v TB (CBSA)", + "act_name": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 138", + "marginal_note": "paras 104–107", + "heading": "Policy grievance; collective agreement interpretation at the CBSA", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the complainant made the argument that the employer violated section 107 of the Act, which deals with the freeze of all terms and conditions that were in place when notice to bargain was served and that could be embodied in a collective agreement. The complainant’s argument is essentially that the employer, by refusing to allow it to use desk dropping, changed a long-standing practice, contrary to section 107. As stated earlier, the evidence as to whether a past practice existed is contradictory. Witnesses for the complainant testified that they used that method for a long period for all kinds of documents in different locations, while the employer’s witnesses challenge that position through testimony, a summary of the UMCC meeting and Ms. Larose’s email of January 16, 2008 that specifically opposed the desk drop distribution of documents (Exhibit E-1, tab 10). In my view, the evidence as to whether the desk drop method was used and was condoned by the employer is inconclusive. The complainant had the burden of proof. I am not convinced that the evidence supported the existence of a long-standing practice. Therefore, I cannot conclude that the employer violated section 107.\n\nFinally, I cannot help but notice that neither party raised those specific matters in their respective demands during the current or previous rounds of collective bargaining or that they have been referred to the PIC. It certainly would have been a good forum to settle these matters.\n\nFor all of the above reasons, the Board makes the following order:\n\nThe complaint is dismissed. November 13, 2013. Linda Gobeil, a panel of the Public Service Labour Relations Board", + "current_to": "2013-11-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359013/index.do" + }, + { + "id": "fpslreb-359065-1", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 1", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Canada Labour Code\n\nBefore a panel of the PublicService Labour Relations Board\n\nBETWEEN\n\nEUGENIA MARTIN-IVIE\n\nComplainant\n\nand\n\nTREASURE BOARD(Canada Border Services Agency)\n\nRespondent\n\nIndexed asMartin-Ivie v. Treasury Board (Canada Border Services Agency)\n\nIn the matter of a complaint made under section 133 of the Canada Labour Code\n\nREASONS FOR DECISION\n\n1 The complainant, Eugenia Martin-Ivie, alleges that the respondent, the Canada Border Services Agency (CBSA) threatened to take disciplinary action against her for exercising her rights under Part II of the Canada Labour Code, R.S.C. 1985, c. L-2 (“the Code”), in violation of sections 133 and 147 of the Code by undertaking a professional standards investigation (“the investigation”) into the production of protected CBSA documents at a hearing before the Occupation Health and Safety Tribunal (OHST) in support of her argument that her refusal to work was justified.\n\n2 At the outset of the hearing, the parties submitted the following agreed statement of facts that sets out the foundation of this complaint:\n\n3 Many exhibits were also submitted by consent, one of which was the complete investigation report. The parties jointly requested that it (Exhibit 3) be sealed as it outlines the allegations, evidence, and conclusions related to the similar allegations, made against three other CBSA employees who were also involved in the production of documents used before the OHST.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-2", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 2", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "4 As those employees were not part of the complaint before me, I have concluded that, after a review of the report, to allow it to be open to the public would cause harm to the others mentioned in it. The information, if left unsealed, could be harmful to the reputations of people who are not involved in the complaint before me and who have not agreed to the publication of the findings of the investigation into their activities or had the opportunity to defend themselves before me. Furthermore, it is not in the best interests of the Public Service Labour Relations Board (“the Board”), or those who appear before it, to publish more personal information than required for the purposes of this decision. For those reasons, and consistent with the “Dagenais/Mentuck” test, I ordered Exhibit 3 sealed. A redacted version of the report, filed as Exhibit 1, Tab E, will not be sealed. This will satisfy the need of this Board to be open, transparent and accessible in its proceedings as they relate to the complaint before me.\n\n5 Dan Badour, Director, Enforcement and Intelligence, Southern Ontario Region, CBSA, testified on behalf of the CBSA. He has been involved with the intelligence program since 1993 and testified as an expert witness on security matters on behalf of the CBSA before the Occupational Health and Safety Tribunal.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-3", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 3", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "6 In preparation for the hearing, Mr. Badour met with Treasury Board Secretariat (TBS) legal counsel and the CBSA headquarters labour relations advisor assigned to the matter to review material prepared for disclosure by the respondent to the complainant. He reviewed documents disclosed by the complainant’s counsel related to matters of “lookout” and intelligence procedures. Included in the complainant’s package were intelligence bulletins and “lookouts” which are intelligence information intended to inform the various CBSA components of police investigations, CBSA investigations, partner investigations and officer safety bulletins to inform those involved of ongoing safety concerns. The information contained in these bulletins is classified “Protected B” as it contains names of suspects, licence plate information, vehicle descriptions and a narrative on the nature of the investigation.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-4", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 4", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "7 Mr. Badour reviewed the materials disclosed by the complainant to ensure that the “lookout bulletins” related specifically to the matters that gave rise to her refusal to work. He reviewed other documents disclosed by the complainant to ensure that there were no operational security concerns with their disclosure, which exist if the documents relate to an active CBSA or police investigation. In such cases, disclosure outside the CBSA could jeopardize the health and safety of officers engaged in the investigations, the success of the investigations, and the relationships and confidence in the security of information provided by outside agencies to the CBSA. The partner agencies consist of local law enforcement, provincial police, the Royal Canadian Mounted Police, the Canadian Security and Intelligence Service, and international agencies such as the United States Department of Homeland Security and other border agencies.\n\n8 “Lookout bulletins” are contained primarily within two CBSA systems. Frontline border services officers (BSOs) have access to them electronically. Sometimes they are provided on paper. If so, they may be transmitted to the local security intelligence officer and then delivered to a border crossing. When produced on paper, they may be posted in briefing rooms. Electronic versions may be accessed on the electronic notice board available to BSOs. They may also be sent by the regional superintendent. Only those with a valid enhanced reliability status (or higher) have access to lookout bulletins.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-5", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 5", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "9 The complainant emailed Protected B documents to her legal counsel without encrypting them, as is required. If a Protected B document is sent unencrypted, there is a risk of a loss of control over its distribution and how it can be received. There is no control over the extent of the transmittal of an unencrypted document into the public domain. Around the same time as Ms. Martin-Ivie’s appeal to the OHST, CNN (the television news network) broadcast a lookout bulletin in one of its reports unrelated to the complainant, which significantly embarrassed the CBSA.\n\n10 While being cross-examined by counsel for Ms. Martin-Ivie before the OHST, a Protected B lookout bulletin was put to Mr. Badour as an exhibit. It indicated that there was an active CBSA Vancouver Intelligence Office investigation. Using it as an example, he was questioned about how that type of document was produced.\n\n11 That document was not included in the package of documents disclosed by the complainant’s counsel and had not been reviewed at the earlier meeting. It indicated that it had been faxed from the Coutts, Alberta, port of entry. The respondent concurred with releasing the lookouts that Mr. Badour reviewed for the purposes of the appeal hearing. There was no such agreement on the use of the lookout bulletin he was shown at the hearing. His first reaction was to wonder who approved its release and how it was transmitted.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-6", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 6", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "12 Following his testimony, Mr. Badour spoke with Tammy Edwards, Manager, Occupational Health and Safety Division, CBSA (who was at the hearing), and expressed his concerns with how the lookout in question was accessed, transmitted and disclosed. Upon his return to his office in Ottawa, he queried the National Lookout System and determined that the lookout presented to him in cross-examination had been accessed at the Port of Coutts, Alberta, shortly before his testimony. In his opinion, it constituted a breach of the CBSA’s “National Lookout Policy,” which is derived from the CBSA’s “Information Management Security Policies” and section 107 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).\n\n13 Ms. Edwards was apparently unaware of the policies surrounding the use and release of lookouts. Mr. Badour briefed her on the rules of sharing and disclosing protected information. To follow up on his concerns, he sent her an email (Exhibit 6) providing an overview of Information Management Security and including excerpts from the policy and relevant legislation.\n\n14 In May 2011, Mr. Badour was contacted by Franca Passannante, Senior Investigator, Professional Standards and Investigations Branch, CBSA, the professional standards investigator assigned to investigate his concerns. He forwarded Exhibit 6 to her for use in her investigation into the inappropriate access, release and transmission of Protected B information by four people who had been involved in the work stoppage and appeal, either directly or indirectly.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-7", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 7", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "15 Mr. Badour described his role in the conduct of the investigation as peripheral. He raised the concerns, wrote an email to Ms. Edwards and spoke to Kevin Hewson, District Director, Southern Alberta District, CBSA, about his concerns. He was interviewed as part of the professional standards investigation. He had no input into the report or the conclusions after he was interviewed. He was not familiar with Exhibit 14, the occurrence notification that reported the alleged breach of the “Code of Conduct Confidentiality and Disclosure of Information,” which stated the following:\n\nIt is alleged that in late 2010, numerous employees facilitated and transmitted Protected A, B and Third Party Information, without authorization, to a private law firm which was used by the defendants in a Health and Safety Tribunal in December 2010. The information was transmitted improperly and against policy through unencrypted email and unsecure facsimile.\n\n16 On cross-examination, Mr. Badour admitted that he spoke to people other than Ms. Edwards about his concerns. When he spoke to Ms. Edwards, she was accompanied by Maureen Noble, Superintendent at the Port of Coutts. He did not remember that Richard Fader, TBS legal counsel at the appeal, was also present, although he admitted that it was possible. His primary concern at that point was the access to and transmission of the lookout bulletin put to him on cross-examination and the role of the supervisor at the port who faxed the document. He advised those present that he would investigate his concerns.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-8", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 8", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "17 The next day, Mr. Badour called Mr. Fader and asked for a copy of the document entered into evidence to obtain the fax transmission information. He then queried the Integrated Customs Enforcement System to determine who had accessed the lookout in question. A week later, he sent Exhibit 6.\n\n18 Mr. Badour admitted that there was a concern about pursuing an investigation into the matter while the decision of the Occupational Health and Safety Tribunal was pending, as is evidenced in Exhibit 10. His role in initiating the investigation was limited to presenting the facts to Ms. Edwards. The professional standards investigation ensued after that.\n\n19 Mr. Badour testified that he was aware that the employees investigated could face discipline depending on the conclusions in the report but stated it was only one possibility. He would not have been surprised had the respondent been contemplating discipline.\n\n20 Ms. Passannante, testified that she is tasked with investigating allegations of misconduct by CBSA employees. The allegations can include any violation of CBSA policies, anything that may be criminal, and anything that could bring the CBSA’s reputation into disrepute or harm its relationships with its outside partners. Based on the evidence she gathered in the course of her investigation, she concluded as follows:\n\n62. The allegation that Eugenia MARTIN-IVIE breached the CBSA Security Policy, “Chapter 9: Protection of Classified and Protected Information and Assets outside the Workplace”, paragraph 2, when she forwarded through unencrypted email, Protected B information to an external recipient, is founded.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-9", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 9", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "21 A professional standards investigation is very serious. Ms. Passannante investigates all issues of misconduct, including breaches of the CBSA’s security policy. However, she does not decide whether to take disciplinary action and, if so, what type. She was not aware of any disciplinary action in this case, but in most cases, professional standards investigations result in disciplinary action of some type.\n\n22 In cross-examination, Ms. Passannante was asked about any conversations she had with CBSA management about the scope of her investigation. She testified that the discussions were between her director general and regional management. They decide on the scope of the investigation between them. She received no specific directions from her manager about the investigation. When asked if she had any conversations with management in the Prairie region, she testified that she had not. However, when presented with Exhibits 16 and 17, she admitted having had conversations with Mr. Hewson related to the investigation, its focus and to an audit of the complainant’s email account. On February 21, 2010, as seen in Exhibit 16, Hewson advised Passannante that Martin-Ivie had “… pulled a work refusal under CLC part II on Tuesday Feb. 15, 2011 …” He recommended that based on this, Passannante conduct another audit of Martin-Ivie’s email account.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-10", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 10", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "23 In Exhibit 17, an email he sent on March 1, 2011, Mr. Hewson recommends a review of the complainant’s systems accesses and personal hard drive space to “find further evidence” that she was reviewing all lookouts to determine if they should be changed to “Armed and Dangerous.” Mr. Hewson described her actions as her “… cause as a CIU representative in the workplace and is further evidenced in her OSH appeal …” On March 2, 2010, Ms. Passannante replied to Mr. Hewson that the complainant “… should not be going through every lookout in order to identify those that she deems may have health and safety issues.”\n\n24 The complainant testified on her own behalf. She testified that she had forwarded emails including lookouts to her legal counsel for use at her OHST hearing. They were forwarded to her unencrypted by another BSO. It is not a standard practice, according to the complainant, to encrypt emails at the Port of Coutts. It was a standard practice only for managers. She had no concerns with forwarding the emails outside the CBSA to her legal counsel as she believed that they would be covered by solicitor-client privilege. She maintained that it was her duty under the Code to provide her solicitor with sufficient evidence to support her appeal before the OHST.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-11", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 11", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "25 The complainant was not concerned about the content of the materials that she emailed to her legal counsel because they were sent to her unencrypted, and she forwarded them assuming that solicitor-client privilege applied. She also hand-delivered documents that she did not have in electronic format. She did not ask for permission to release any of the documents. It was her responsibility and obligation to provide as much information and as many examples as possible in defence of her refusal-to-work appeal. The documents she provided to her legal counsel were intended to demonstrate that the reason for the work refusal continued to apply at the time of the OHST hearing.\n\n26 According to the complainant, it is negligent for BSOs not to review lookouts. She looks at every one sent to her. It is her responsibility to be aware of what lookouts she might encounter on her shift. It was not her “cause” as a union representative, as Mr. Hewson stated in the following email (Exhibit 17):\n\nIn a discussion with two of my superintendents yesterday, it has become apparent to me that respondent looks at every single lookout, watch-for or BOLO and reviews them to see if they should be changed to Armed and Dangerous status. This appears to be her cause as a CIU representative in the workplace and is further evidenced in her OSH appeal and the recent work refusal under CLC part 2 on Feb. 15, 2011.\n\n(Sic throughout)", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-12", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 12", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "27 The complainant stated that, if she believes the work is dangerous and needs to be identified as such, she does so. She files her work refusals as an employee, not as a union representative. She goes through every lookout sent to her to ensure that there is no discrepancy between the source’s information and the information in the lookout. It is a health and safety issue not to, as an unarmed officer responds differently when faced with someone identified on a lookout. She is legitimately concerned when the “Armed and Dangerous” tag is not on a lookout.\n\n28 When she was advised via email (Exhibit 2, Tab B) that she was the subject of a professional standards investigation, she became concerned that it would have a negative impact on her career. She was also afraid of potential disciplinary action against her as she was aware that the regional labour relations group uses such investigation reports to determine what, if any, discipline is appropriate. She was aware that a violation of section 107 of the Customs Act could result in termination. Ms. Martin-Ivie was advised on January 18, 2012 that she had been found culpable of the allegations against her. She expected disciplinary action at any point after that.\n\n29 On June 24, 2012, she met with CBSA management in the Southern Alberta District via teleconference, accompanied by Jason McMichael, current First National Vice-President of the Customs and Immigration Union. She was advised that she was there for a “learning conversation,” which she had never heard of, rather than the disciplinary action she anticipated.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-13", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 13", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "30 Mr. McMichael testified that, of the more than 20 professional standards investigations he has been involved with as a union representative, all but one (this one) resulted in disciplinary action against the employee. Such investigations are very serious and involve the most serious of allegations such as anything from breaches of policies to criminal investigations. Never has he come across a “learning conversation.”\n\n31 This case deals with whether there has been a violation of sections 133 and 147 of the Code. Subsection 133(1) requires a violation of section 147. The test to determine whether a violation of section 147 occurred is expressed in paragraphs 62 and 64 of Vallée v. Treasury Board (Royal Canadian Mounted Police), 2007 PSLRB 52, as follows:\n\n62 The question that is to be resolved in this case is whether the complainant has been a victim of reprisals for his denunciation of the hazardous working conditions in which he found himself …\n\n64 Thus, the complainant would have to demonstrate that:\n\na) he exercised his rights under Part II of the CLC (section 147);\n\nb) he suffered reprisals (section 133 and 147 of the CLC);\n\nc) these reprisals are of a disciplinary nature, as defined in the CLC (section 147); and\n\nd) there is a direct link between his exercising of his rights and the actions taken against him.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-14", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 14", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "32 In this case, the complainant met the first part of the test. She exercised her rights under Part II of the Code. She then had to establish that she suffered reprisals of a disciplinary nature. If she were unable to, the complaint must be dismissed. If it is determined that there was a disciplinary reprisal, there must be a link between the exercise of her rights under Part II of the Code and the disciplinary action taken by the respondent. (See: Gaskin v. Canada Revenue Agency, 2008 PSLRB 96, at paragraph 62, and Tanguay v. Statistical Survey Operations, 2005 PSLRB 43, at paragraph 14).\n\n33 In the case before me, the complainant was not dismissed, laid off or demoted. There was no evidence of a financial penalty. Nor was there any evidence of a threat of discipline. At paragraph 19 of the Tanguay decision, the Board member accepts the definition of “penalty” as a “punishment or award to ensure the performance of an action” or as a “punishment established or inflicted by a law or some authority to prevent a prohibited act.” The complainant was not punished for pursuing her rights under the Code. Nothing can be used by the complainant to establish that she suffered reprisals or disciplinary action as a result of her exercise of her rights under Part II of the Code.\n\n34 It is a pure question of fact whether the complainant was punished. Following an investigation, she was required to participate in a learning conversation, which was neither a penalty nor punishment.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-15", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 15", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "35 Conducting an investigation is not discipline. It is fact-finding. No conclusion was drawn in this case. It provides an opportunity for a complainant to clarify a situation. Expecting discipline as a result of the investigation is not a threat of discipline as prohibited by section 147 of the Code. (See Chamberlain v. Treasury Board (Department of Human Resources and Skills Development), 2010 PSLRB 130, at paragraph 95). The mere fact of conducting an investigation is not tantamount to discipline or the threat of discipline.\n\n36 Brown and Beatty, in Canadian Labour Arbitration, 4th edition, discuss the nature of disciplinary sanctions at section 7:4210. In deciding whether an employee has been disciplined, an arbitrator or adjudicator must consider both the purpose and the effect of the employer’s actions. The essential characteristic of disciplinary action is the intention to correct bad behaviour. An employer’s assurance that it did not intend its actions to be disciplinary often, but not always, settles that question. A disciplinary sanction must at least have the potential to prejudicially affect an employee.\n\n37 How is a learning conversation discipline, when it is not even a warning of discipline? The complainant was not punished in any way; nor did the respondent intend to punish her. The learning conversation did not have the potential to negatively affect her. There was no reprimand or warning; nor was a mention of it on her file. Nothing suggests that the respondent cautioned her that a failure to comply on her part in the future could result in discipline.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-16", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 16", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "38 The possibility of discipline as a result of an investigation is not the same as a threat. No one threatened the complainant with discipline. The respondent’s primary concern was with another employee, who faxed protected information to someone outside the CBSA. The complainant might have assumed or expected that discipline would result from her release of protected information to her legal counsel, but that is not a threat.\n\n39 The evidence is that, despite the investigation, the complainant has continued to act in a position above her substantive BSO level. Her career prospects were not affected. She suffered no disadvantage as a result of the investigation. The evidence in general does not establish that she was subject to a penalty; nor was any threat made of disciplinary action (implicit or explicit). For those reasons, she failed to meet the all the requirements of the test set out in Vallée. As the complainant is unable to meet the test, this complaint must be dismissed.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-17", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 17", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "40 The complainant exercised her rights under Part II of the Code. As a result, the respondent threatened her with disciplinary action. It was not an overt threat. The professional standards investigation could have led to discipline. Clearly, the respondent contemplates discipline when initiating a professional standards investigation (Exhibit 18). Discipline was always a possibility until the complainant was informed that, rather than being disciplined, she was to participate in a learning conversation. The professional standards investigation was precipitated by her disclosure of CBSA information to her legal counsel in advance of her hearing before the OHST. Had she not disclosed that information, there would have been no investigation. The respondent cannot say that a professional standards investigation is merely an administrative fact-finding action when, if it is determined that the employee being investigated violated one of the policies or some other policy, disciplinary action will result. Nor can the respondent be allowed to circumvent the Code by not disciplining the employee and substituting a new device such as a learning conversation. What is relevant is the threat of discipline.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-18", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 18", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "41 Consistent with the Chamberlain decision, the investigation was not disciplinary. However, was it a threat? The existence of a threat is a question of fact. Exhibit 2, Tab B, states that the complainant was subject to a professional standards investigation for “… unlawful disclosure of CBSA information to Raven, Cameron, Ballantyne & Yazbeck law firm …” The respondent’s witnesses acknowledged the seriousness of the allegations. Exhibit 6 lists the penalties that could have resulted in the event that the complainant was found guilty of the allegations against her. It is a reasonable conclusion that she would have been subject to disciplinary action in those circumstances.\n\n42 The CBSA was very selective in whom it targeted. Only those involved in the work refusal complaint under Part II of the Code were investigated. It does not matter that discipline was not imposed on the complainant. The point is not what the CBSA did or did not do as a result of the conclusions in the investigation report. The fact that those involved in the complaint were subject to a professional standards investigation is sufficient to deter employees from exercising their rights under the Code. The evidence is that the complainant would now think twice before taking advantage of the protections that the Code offers employees. The fact that the complainant has been successful in her career despite the professional standards investigation does not detract from her willingness to exercise her rights. This is the type of reprisal that the Code intends to prevent.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-19", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 19", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "43 Mr. Badour’s evidence was that he expressed concerns with documents submitted to him as a witness at the Occupational Health and Safety Tribunal. The professional standards investigation was based on his concerns. If his primary concern was with the fax, he certainly had other concerns with the other documents (see paragraph 11 of the agreed statement of facts). In his recounting of his concerns (Exhibit 9), he identified two other types of documents, those emailed or hand-delivered by the complainant to her legal counsel. The disclosure of those documents was the reason for launching the professional standards investigation. While it might not have been within his purview to order the investigation, he tried to influence it. Even without the fax, which he claimed was of primary concern, the investigation into the complainant’s release of CBSA information would still have taken place.\n\n44 Exhibits 10 and 11 show that the respondent was concerned with the perception of proceeding with the professional standards investigation on the heels of the OHST hearing. Exhibits 16 and 17 indicate the respondent’s negative impression of the complainant, her union activities and her exercise of her rights under the Code.\n\n45 The Tanguay decision outlines four general prohibitions. Subsection 133(6) of the Code puts the onus on the respondent to demonstrate that it has not violated the Code’s prohibitions. The reasons for the reverse onus are set out in Lequesne, 2004 CIRB 276, at paragraphs 73 and 77 as follows:", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-20", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 20", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "73 By placing the burden of proof on the employer, the Code creates an important exception to the general rule that the burden of proof is upon the complainant. The reverse onus is predicated on the principle that employees should be free to exercise their legitimate rights without being hampered by undue coercion by the employer.\n\n77 The Board’s determination of a complaint is a two-step process. First, the Board must determine whether the complainant acted in accordance with Part II of the Code when he exercised his refusal to work. If the Board is satisfied that the right to refuse to work was in conformity with the Code, then the second step is to consider whether the employer’s decision to discipline the complainant was motivated by considerations not related, even remotely, to the employee’s right to refuse to work… on a balance of probabilities, the discipline was administered for reasons other than the employee’s invoking his right to refuse unsafe work.\n\n46 The decision in Chaney, 2000 CIRB 47, at paragraph 28, stands for the principle that if the exercise of the employee’s rights is a proximate cause for discipline and not necessarily the whole reason for discipline, a contravention of the Act is found:\n\n28… If the exercise of rights under the Code by an employee is even only a proximate cause for discipline, then the employer should be found to have contravened the Code…\n\n47 That principle was applied by the Canada Labour Relations Board in Steve Kasper, 90 di 130, at page 6, and was adopted by the Board in Pruyn v. Canada Customs and Revenue Agency, 2002 PSSRB 17, at paragraph 55.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-21", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 21", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "48 After examining the evidence, if it is more probable than not that a reason for the discipline or threat of discipline was the exercise of an employee’s rights under the Code, it is sufficient to allow the complaint. In this case, the professional standards investigation arose out of the OHST hearing. That is enough of a proximate cause to allow the complaint.\n\n49 Assuming that the learning conversation was not disciplinary, as the respondent asserts, does not alter the fact that the professional standards investigation brought with it the threat of discipline, in itself a violation of section 147 of the Code. In Ladouceur v. Treasury Board, PSSRB File No. 160-02-43 (19920730), the complainant, a corrections officer, held a meeting with members of the bargaining unit at which he informed them that bullets were found in a cell during a prison search. The meeting resulted in a refusal to work. When the safety officer arrived, the complainant was taken aside and advised that he might be disciplined for his actions. The employer in that case argued that the complainant was not being disciplined for exercising his rights under the Code but rather for disclosing confidential matters, that is, information about the bullets. That was held to be a threat of discipline under section 147 of the Code.\n\n50 In Beaudoin v. Treasury Board, PSSRB File No. 160-02-19 to 23 (19871116), a violation of the Code was found on the basis of a threat of discipline for insubordination that was clearly linked to the employer’s attempt to have employees resume work after they exercised their right to refuse to under Part II of the Code.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-22", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 22", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "51 The threat of discipline need not be overt; it may be covert (see Antonia Di Palma, 100 di 89) or even a perception, as was the case in Gaskin. In such cases, the onus is on the employer to prove on the balance of probabilities that it never intended to threaten the complainant.\n\n52 In summary, the complainant was subjected to a professional standards investigation into her use of protected CBSA information, which carried with it the threat of discipline. The investigation was launched as a result of an appeal to the OHST, which was based on the complainant’s sincere belief that unsafe working conditions existed in her workplace. She disclosed information, which was protected by solicitor-client privilege, for use in a closed hearing into the legitimacy of her concerns. Any concern about the security of the lookouts in question was protected by the process itself.\n\n53 The only conclusion one can reach is that the reason for the professional standards investigation was the complainant’s use of lookouts to support her refusal to work under Part II of the Code.\n\n54 The complainant seeks a declaration that the respondent violated section 147 of the Code and an order directing it to cease and desist in such activities. She also seeks an order directing the respondent to post this decision on bulletin boards in each of its workplaces for six months.\n\n55 The relevant sections of the Code are sections 133 and 147. Section 133 provides as follows:\n\n133. (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.\n\n56 Section 147 of the Code states as follows:", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-23", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 23", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee\n\n(a) has testified or is about to testify in a proceeding taken or an inquiry held under this Part;\n\n(b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or\n\n(c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.\n\n[Emphasis added]\n\n57 The complainant’s allegation is that she was threatened with discipline as a result of the exercise of her right to refuse to perform what in her opinion amounted to unsafe work pursuant to section 128 of the Code.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-24", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 24", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "58 The respondent had to demonstrate that the complainant was not disciplined for legitimately exercising her right to refuse to work. The parties agreed that the complainant exercised her rights under section 128 of the Code in November 2005. Subsequent to her refusal to work, she appealed the Occupational Health and Safety Officer’s decision to the OHST. To support her application, she provided her legal counsel with certain protected CBSA documents, via email and via hand-delivered hard copies. They were used at the OHST hearing and were put to Mr. Badour, the respondent’s security expert. His discomfort with the use of the documents was raised with legal counsel and the respondent’s human resources representative present at the hearing. Based on his concerns, a professional standards investigation was launched.\n\n59 If the story ended there, I would have no qualms finding in favour of the respondent. Instituting an investigation to look into a possible breach of an employer policy is not, in and of itself, in my opinion a threat of discipline. An employer has every right to discipline an employee for a breach of its policies. The complainant cannot hide behind the exercise of her rights under the Code to avoid disciplinary action which may result from actions which are a violation of the employer’s code of conduct.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-25", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 25", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "60 Mr. Badour’s sights were clearly set on a security violation, which is a breach one of the respondent’s policies. He had no opinion one way or the other about the forum in which the alleged security violation occurred. However, he merely expressed his concerns. He had no managerial or supervisory responsibility for the complainant. Based on that expression, an occurrence notification (Exhibit 14) was issued by the Professional Standards Investigations, Personnel Security and Professional Standards Division, at the CBSA, indicating that he reported that the infraction related to the release of protected information by “numerous employees.”\n\n61 Mr. Badour’s involvement as a catalyst for the professional standards investigation ended there. Mr. Hewson, through Yvonne Bremault, Acting Regional Director General, Prairie Region, contacted Roger Lavergne, on December 16, 2010, seeking Personnel Security and Professional Standards Division assistance in investigating a breach related to the release of documents and the tone of the investigation changed as is evidenced by exhibits 16 and 17. The OHST hearing was held on November 26, 2010, three weeks before the request to proceed with the professional standards investigation was made by Prairie Region management.\n\n62 Exhibit 16 reflects communications between Mr. Hewson and the professional standards investigator Particularly disturbing is an email from him dated February 21, 2011, which reads as follows:\n\nFrom: Hewson, Kevin\n\nSent: February 21, 2011 1:57 PM\n\nTo: Passannante, Franca\n\nSubject: Fw: Lookout info …\n\nHi Franca,\n\nGina pulled a work refusal under CLC part II on tuesday Feb. 15, 2011 based on this lookout not being an armed and dangerous lookout.\n\nSee next email.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-26", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 26", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Gina did fax some into to a 613 area code, but it doesn’t appear to be the PSAC law firm.\n\nI would recommend that her email account be re-audited to ensure she has not sent protected information without authorization.\n\nKevin\n\n_________________________\n\nSent from my Blackberry handheld.\n\n[Sic throughout]\n\n63 Equally disturbing is another email Mr. Hewson sent to Ms. Passannante on March 2, 2011 (Exhibit 17), which reads as follows:\n\nFrom: Hewson, Kevin\n\nSent: March 1, 2011 11:30 PM\n\nTo: Miller, Gary; Passannante, Franca\n\nCc: Badour, Dan; Bremault, Yvonne\n\nSubject: Mail box review PS 10-290\n\nHi Franca,\n\nIn a discussion with two of my superintendents yesterday, it has become apparent to me that respondent looks at every single lookout, watch-for or BOLO and reviews them to see if they should be changed to Armed and Dangerous status. This appears to be her cause as a CIU representative in the workplace and is further evidenced in her OSH appeal and the recent work refusal under CLC part 2 on Feb. 12, 2011.\n\nI am sure if you reviewed ICES, her H drive and email you would find further evidence to this.\n\nIf you have any questions, please feel free to contact me.\n\nKevin\n\n[Sic throughout]\n\n[Emphasis added]\n\n64 It is worthy of note that “PS 10-290” refers to the professional standards investigation into four people involved, directly or indirectly, in the complainant’s appeal before the OHST, including the complainant.\n\n65 In response to Mr. Hewson’s email, Ms. Passannante wrote as follows:\n\nFrom: Passannante, Franca\n\nSent: March 2, 2011 9:50 AM\n\nTo: Hewson, Kevin; Miller, Gary\n\nCc: Bremault, Yvonne\n\nSubject: RE: Mail box review PS 10-290\n\nHi Kevin,\n\nThanks for the info. I did request a second email review following our last conversation. Our analyst has been through it and I am waiting for the return on what he found.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-27", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 27", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "She should not be going through every lookout in order to identify those that she deems may have health and safety issues. Lookouts are not issues for this purpose …. need to know only for work related purposes. She will argue that it is work related but lookouts are issued so that frontline inspectors can identify and intercept persons of risk and interest and not for any other purpose.\n\nWhat I will do is request and ICES audit which will tell me exactly what she has looked at and when.\n\nI am going through the court transcripts this week and trying to make sense of everything.\n\nThanks!\n\nFranca\n\n[Sic throughout]\n\n66 Mr. Hewson did not testify on behalf of the respondent, so his emails must speak for themselves. It is clear to me from their tone and content, that he was frustrated by the complainant’s exercise of her rights under section 128 of the Code and that he wanted her to stop pursuing her lookout issues. I find that in so doing, he hoped that, if the results of Ms. Passannante’s investigation indicated a violation of the CBSA “Code of Conduct” by the complainant, discipline would cause her to curb her health and safety pursuits. Hewson clearly links the professional standards investigation with the complainant’s exercise of her right to refuse under the Code and demonstrates an anti-union animus when he describes the complainant’s ongoing review of lookouts in his email exchange with Passannante.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-28", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 28", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "67 The respondent chose not to call Hewson to address the content of his emails which were entered into evidence. I am therefore left to evaluate his actions through his email communications. Consequently, I have concluded that Hewson’s activities in attempting to influence the direction of the professional standards investigation were directly related to an attempt to stop the complainant from exercising her right to refuse unsafe work under the Code.\n\n68 Ms. Passannante denied conversing with or taking instructions from anyone other than her manager with respect to the investigation, and yet, the emails indicate otherwise. In them, she links the investigation with the complainant’s exercise of her rights under section 128 of the Code by reviewing the transcripts of the OHST hearing and by advising Mr. Hewson that the complainant was engaged in unauthorized access to and use of CBSA documents, another allegation that, if proven, could have brought disciplinary action. Passannate’s mandate was limited to the allegations of improper disclosure of protected information and her comments should have been limited to this, and should not have extended to making comments on the complainant’s ongoing review of lookouts to determine if they were appropriately classified. Her comment links her investigation to the complainant’s exercise of her rights and is unrelated to her mandate.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-29", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 29", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "69 Therefore, based on the exhibits and the lack of testimony by Hewson, I conclude that, on the balance of probabilities, the professional standards investigation was inextricably linked to the complainant’s exercise of her rights under Part II of the Code. It is clear to me from Mr. Hewson’s emails, that he wanted the complainant to stop claiming that her duties as a BSO at the Port of Coutts were rendered unsafe by the misclassification of lookouts and tried his best to influence the investigation by communicating his opinions concerning the complainant’s union activities to Passannante. The professional standards investigation provided a vehicle by which he hoped that message would be conveyed.\n\n70 While the initial complaint filed by Mr. Badour concerning the release of protected information was from his perspective a pure security issue, the investigation was not. Its nature was changed, or at least influenced by Mr. Hewson’s involvement, as evidenced by his emails.\n\n71 Having concluded that the professional standards investigation was conducted at least in part for reasons directly related the complainant’s exercise of her rights under section 128 of the Code, I must now decide whether it was disciplinary in nature or was a threat of disciplinary action, either of which would be a violation of section 147. I find that there is more than a proximal link as described in Chaney between the exercise of the complainant’s section 128 rights and the nature of or the manner in which the professional standards investigation was carried out.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-30", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 30", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "72 The complainant’s evidence was that she was not disciplined, at least not in the traditional sense. She was found culpable of releasing protected CBSA information without proper authorization and in an unsecure fashion. For this she was subjected to a learning conversation, in which the policies related to the release of information were reviewed. Both the complainant and Mr. McMichael testified that, in their roles as union representatives, they had never before heard of a learning conversation, let alone once a person has been found to have violated the CBSA “Code of Conduct” or some other policy. Mr. McMichael testified that, in his 13 years with the CBSA, he has been involved in more than 20 professional standards investigations assisting union members. In all but this case, a finding that the employee violated the “Code of Conduct” or some other policy resulted in disciplinary action. Before this case, he had never heard of a learning conversation in this or in any other context.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-31", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 31", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "73 In my opinion, use of the learning conversation was a carefully chosen ruse intended to skirt the connection of disciplinary action as a result of the conclusions of the professional standards investigation and the complainant’s exercise of her rights under section 128 of the Code. I liken it to a verbal reprimand that is intended to correct an employee’s behaviour without imposing more severe disciplinary action, which would be subject to the grievance process. Furthermore, Exhibit 18 makes it perfectly clear that disciplinary action was contemplated throughout the professional standards investigation, although ultimately it was not recommended by CBSA Human Resources because of the respondent’s own failure to enforce the rules concerning the release of protected CBSA information at the Port of Coutts up to the point of the OHST hearing.\n\n74 If it was management’s intention, following the investigation, simply to address the situation at the Port of Coutts regarding the practice of not encrypting sensitive data, it could easily have done so without violating the Code. A memorandum to all employees at the Port, reminding them of their obligations to encrypt protected information, would have addressed the situation in a manner that satisfied management interests but did not discipline or threaten discipline upon the complainant. In singling out the complainant from all other employees at the Port and in calling her to a meeting accompanied by her union representative, and having her participate in a thinly-veiled “learning conversation”, I find that management acted improperly.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-32", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 32", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "75 Having found that discipline was imposed as a result of the complainant’s pursuit of her rights under section 128 of the Code, I find that she has successfully proven all elements of the test identified in the Vallée decision. Had I not concluded that the learning conversation was disciplinary in nature; my decision would have been the same. At the very least, the learning conversation was a threat of future disciplinary action intended to alter the complainant’s behaviour. The conversation in which Gary Selk, Chief of Operations, Southern Alberta District, CBSA, and Mr. Hewson reminded the complainant, in the presence of her union representative, brought with it, if not actual discipline, then the perceived threat of disciplinary action. If it was purely a counselling situation, why did a union representative attend? The right to be accompanied by a union representative is included in the collective agreement applicable to BSOs under the discipline section.\n\n76 Mr. Hewson hoped that the professional standards investigation would put an end to the complainant’s review of lookouts to determine if their subjects should have been identified as armed and dangerous. As I have indicated, had the investigation focused on Mr. Badour’s security concerns and not ventured into the area identified in the email exchanges between Mr. Hewson and Ms. Passannante, my conclusion would have been different, as the motive for the investigation would have been different. The required nexus would have been missing. As it turns out, the focus was directed at the complainant’s ongoing health and safety concerns with the respondent’s lookouts, that she “pulled another work refusal” and her use of lookouts to support her claims that the work was unsafe. Consequently, the nexus exists.", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-359065-33", + "doc_type": "caselaw", + "act_code": "2013 PSLRB 40", + "act_short": "Martin-Ivie", + "act_name": "Martin-Ivie v. Treasury Board (Canada Border Services Agency)", + "section": "", + "citation": "Martin-Ivie v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 40", + "marginal_note": "excerpt 33", + "heading": "Occupational health and safety; the arming and safety of CBSA border officers", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "77 Ultimately, the professional standards investigation was successful in persuading the complainant to rethink the exercise of her section 128 of the Code rights in the future. While she might have been subjected only to a learning conversation as a result of the professional standards investigation’s findings, she assumed throughout the process that she would be disciplined. Living through the investigation with the perceived threat of discipline hanging over her and in fear of its impact on her employment future was a sufficient deterrent that she would now think twice before exercising her rights under the Code, which is exactly what section 147 is intended to prevent.\n\n78 Consequently, I declare that the respondent violated section 147 of Part II of the Code by disciplining or threatening to discipline the complainant for exercising her rights under section 128 of the Code.\n\n79 The complainant’s request that I order this decision posted in all the respondent’s workplaces for six months is denied. This is a public document available to everyone with an interest. It is not necessary to post a copy of it in the workplace.\n\n80 For all of the above reasons, the Board makes the following order:\n\n81 The complaint is upheld.\n\n82 Exhibit 3 will be sealed.\n\nApril 12, 2013.\n\nMargaret T.A. Shannon, a panel of the Public Service Labour Relations Board", + "current_to": "2013-04-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/359065/index.do" + }, + { + "id": "fpslreb-358886-1", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 1", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Balkar Singh Basra (“the grievor”) was suspended indefinitely without pay from his position as a correctional officer (classified CX-01) at Matsqui Institution following the receipt of a letter dated March 24, 2006 (“the privacy coordinator’s letter”, Exhibit E-7) from a privacy coordinator and Crown counsel (“the privacy coordinator”) alleging that a sexual assault occurred. In Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70 (“the original decision”), I found that the decision to suspend the grievor indefinitely without pay pending an investigation became a disciplinary action because of the lengthy failure of the Correctional Service of Canada (CSC) to adequately conduct an investigation. I ordered: [140] The grievance is upheld. Mr. Basra is ordered reinstated to his position as a CX-01 effective May 3, 2006, with back pay, full benefits and with interest. I reserve jurisdiction over the implementation of this decision for a period of 90 days.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-2", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 2", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The deputy head of the Correctional Service of Canada (“the deputy head”) sought judicial review of the original decision. The Federal Court allowed the judicial review application in Canada (Attorney General) v. Basra, 2008 FC 606. The grievor appealed that decision. In Basra v. Canada (Attorney General), 2010 FCA 24, the Federal Court of Appeal found that the following findings at paragraphs 120 and 129 of the original decision were in error: [120] While the rules of evidence are relaxed in an adjudication hearing under the Act, in my view it would be an adjudicative error to use hearsay evidence to prove a fundamental material fact… The weight that can be attached to hearsay evidence for establishing material disputed facts is minimal, and I place no weight on the hearsay evidence for establishing facts. [129] … There is no evidence that Mr. Basra deceived the police in their investigation.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-3", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 2", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "There is no duty on him to “take responsibility,” if in fact he is innocent of the offence, and he is presumed innocent until proven guilty… The Federal Court of Appeal was of the view that I had incorrectly decided to not consider the privacy coordinator’s letter (Exhibit E-7) “… simply because it was hearsay.” The Federal Court of Appeal remitted the matter to me for a new determination, with the following directions: [31] The appeal will therefore be dismissed but the order of the Federal Court Judge will be varied so as to provide that the matter be remitted to the original adjudicator, or another adjudicator if he is unavailable to act, so that it may be decided again in conformity with these reasons, based on the existing record or such other evidence as the adjudicator may decide to allow… The Federal Court of Appeal described the adjudicative task as follows: [29] As a result, the adjudicator’s first task upon rehearing the matter is to determine if the employer has proven that there has been a breach of the Code of Discipline or Standards of Professional Conduct. If the employer satisfies that burden, the next question is whether the discipline measure imposed was excessive. If not, the measure stands. If the adjudicator finds that the measure is excessive, then the adjudicator must address the question of the appropriate measure. These are discrete questions, each of which merits careful consideration…", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-4", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 3", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On April 12, 2010, I proposed to the parties to base the new determination directed by the Federal Court of Appeal on written submissions. On April 26, 2010, the parties provided their views. The grievor agreed with the proposed approach. The deputy head requested a full oral rehearing on the merits of the grievance. On my directions, the Registry of the Public Service Labour Relations Board (“the Registry”) issued a letter on May 13, 2010, scheduling the matter for written submissions. On May 17, 2010, the deputy head wrote to the Registry, indicating that proceeding by way of written submissions on the existing record would be a denial of procedural fairness, and it requested a case management conference. The deputy head wished to present further evidence and referred me to Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 S.C.R. 1095 (“Québec Cartier”).", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-5", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 4", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "After convening a case management conference on June 29, 2010, and after hearing submissions from the deputy head and the grievor, I denied the deputy head’s request to present post-hearing evidence and I directed that the matter proceed by way of written submissions. I issued reasons for decision following the prehearing hearing conference in Basra v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 131, and stated the following at paragraph 11: [11] The purpose of this new determination is to correct errors that the Federal Court and the Federal Court of Appeal found in the decision-making process that led to 2007 PSLRB 70. Both courts found that the hearsay evidence (in 2007 PSLRB 70, at paragraphs 120 and 129) was treated in error. The Federal Court of Appeal also found that the wrong test was applied in the original decision and that the case should not have been decided in accordance with the Larson factors (Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9) but rather in accordance with the usual approach to disciplinary grievances, as set out in Wm. Scott & Co Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 C.L.R.B.R. 1. Bearing in mind the purpose of this new determination, in my view there is an evidentiary foundation from the original hearing in this case to which I can apply the factors in Wm. Scott & Co Ltd. referred to in the Federal Court [sic] Appeal decision, with the assistance of submissions from the parties. Those factors are:", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-6", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 5–7", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I note that, despite my ruling denying its request to present post-hearing evidence, the deputy head continues in its written submissions to refer to facts that arose from a hearing in a criminal case after I issued the original decision on this grievance. I do not have a certificate of conviction; nor do I have the reasons given in the criminal case. That evidence is not admissible before me under the analysis set out in Québec Cartier. The evidence in the case before me is set out in paragraphs 4 to 86 of the original decision. I note that the grievance before me is solely about the grievor’s indefinite disciplinary suspension without pay and that the record is based on the evidence adduced at the hearing held in this matter from October 25 to 27, 2007 (“the original hearing”) and reported in the original decision, together with the further written submissions of the parties. The deputy head’s counsel advised me that the CSC has terminated the grievor and that a grievance has been filed against that termination. I was not appointed to hear and decide that grievance. My jurisdiction relates solely to the grievance that the grievor filed after the CSC suspended him indefinitely without pay on learning that he was charged with a criminal offence.\n\nIt is essential that I set out some facts established at the original hearing and reported in the original decision.\n\nThe grievor has been employed at Matsqui Institution since he became an indeterminate employee on August 24, 1999. Matsqui Institution is a medium-security penitentiary for male inmates in the CSC Pacific Region.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-7", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 8", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the original hearing, the deputy head called as its only witness Glen Brown, Warden of Matsqui Institution. Mr. Brown received the privacy coordinator’s letter (Exhibit E-7). It related some circumstances and enclosed a copy of information sworn on March 17, 2006, alleging that the grievor sexually assaulted a female complainant on September 10, 2004, in Surrey, British Columbia, contrary to section 271 of the Criminal Code, R.S.C., 1985, c. C-46. The privacy coordinator’s letter (Exhibit E-7) contained the following synopsis of the allegations: According to the Police report, Mr. Basra first had contact with the complainant through a chat line. They eventually met for an evening of drinking and clubbing. On the second meeting the couple were at Mr. Basra’s house having a few drinks before going out for dinner. After a few sips of the third drink which Mr. Basra made for her, the complainant began to fade, feeling unfocused and hazy. She awoke the next morning naked on Mr. Basra’s bed. She was unable to remember most of the previous evening after the point of sipping the third drink. Reportedly, Mr. Basra gave the complainant a false name; however, the police were able to locate him from the complainant’s cell phone records. When questioned by the police, Mr. Basra denied having had sex with the complaint [sic] or even knowing her and refused to give a DNA sample. A DNA warrant was obtained and Mr. Basra’s DNA was found to match an exhibit taken from the complainant. A warrant has been issued for Mr. Basra’s arrest. You may wish to contact the Surrey Provincial Court Registry … if further information is required concerning details as to the progress of this case.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-8", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 8–9", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This information is provided to you pursuant to our policy; you may wish to share this information with Mr. Basra, to allow him to respond in the appropriate forum.\n\nThe charge was for off-duty criminal conduct that allegedly occurred 18 months before the information was sworn. The complainant is not an employee at Matsqui Institution. There is no indication that the grievor has been involved in any problem within or outside the workplace since the alleged criminal conduct took place. The privacy coordinator’s letter (Exhibit E-7) is the only written documentation that the CSC obtained during its investigation. The CSC did not obtain any information about the terms of the grievor’s form of release or about any conditions of his judicial interim release.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-9", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 10", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown was away from Matsqui Institution when the privacy coordinator’s letter (Exhibit E-7) arrived. Randie Scott, Acting Warden, received it. At a meeting on April 3, 2006, Mr. Scott suspended the grievor indefinitely without pay by letter dated that day (“the suspension letter”, Exhibit E-6). It is important to consider the text of the suspension letter (Exhibit E-6), as it makes it clear as follows that the CSC was convening a disciplinary investigation and that the grievor would be contacted by the investigating manager in due course: This is to advise that you are hereby suspended indefinitely without pay effective immediately, pending the completion of a disciplinary investigation, which has been convened to establish the facts surrounding your involvement in the allegation that you have contravened the Correctional Service of Canada’s Standard of Professional Conduct. Information received from the Crown Counsel, Ministry of Attorney General this date advises you have been charged with sexual assault under Section 271 of the Criminal Code of Canada. During this period of suspension you are not to enter CSC premises without the permission of the Warden or his representative. You will be contacted by the investigating manager in due course.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-10", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 11–13", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In an April 3, 2006 email (Exhibit G-3) to Donna Mynott, a human resources officer at Matsqui Institution, Mr. Scott explained that he went over the gist of the suspension letter (Exhibit E-6) with the grievor at the meeting of that day. During the meeting, the grievor volunteered that the matter related to an allegation from 2004, that he had fully cooperated in the original matter, that he had not heard anything for the last year-and-a-half and that he thought that the matter was over. Mr. Scott advised him that a formal investigation into his actions would be launched. Mr. Scott advised the grievor to call him if he had any questions.\n\nOn April 24, 2006, Mr. Scott directed Jason Strijack, Acting Associate Unit Director, PI/RTC, and Jim Farrell, Security Investigative Officer, Mountain Institution, to commence a disciplinary investigation into the grievor’s involvement in the following two allegations (Exhibit E-8): 1. That on March 17, 2006 Mr. Basra was charged with sexual assault under Section 271 of the Criminal Code. The sexual assault is alleged to have occurred on or about September 10, 2004 at or near Surrey, British Columbia. 2. That Mr. Basra failed to advise his supervisor, before resuming his or her duties, of being charged with a criminal offence.\n\nA report of the investigation was due by May 31, 2006. By the time of the original hearing, neither investigator had yet prepared a written report in connection with the disciplinary investigation. Mr. Brown was absent from Matsqui Institution when the order was given to start the disciplinary investigation.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-11", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 14–15", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor was notified by letter dated April 24, 2006 (Exhibit E-9) of the appointment of the investigators and the allegations to be investigated under the “Code of Professional Conduct”. The grievor was notified of the names of the investigators but was not provided with their contact information. The letter also stated that he would be contacted in due course to arrange an interview. He was also advised of his right to bring a representative to the interview.\n\nNeither Mr. Strijack nor Mr. Farrell interviewed the grievor about the allegations, sent a letter to him requesting his presence for an interview or notified him of a date for an interview. The best that can be said of the investigation was that Mr. Strijack and Mr. Farrell attended at the courthouse in Surrey from time to time to monitor the criminal proceedings against the grievor and that they made phone calls to the Royal Canadian Mounted Police.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-12", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 16", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At paragraphs 111 to 115 of the original decision, I found as follows: [111] I am not satisfied that the respondent has shown under the third [deputy head’s duty to investigate the criminal charge to the best of its abilities, in a genuine attempt to assess the risk of continued employment] and fifth [deputy head’s continuing duty to objectively consider the possibility of reinstatement, within a reasonable period following the suspension, in light of new facts or circumstances] Larson criteria that the CSC has done its best to ascertain the facts in order to make a risk assessment concerning Mr. Basra. While Mr. Scott appointed investigators in a timely way, I am concerned that the investigation did not yield sufficiently reliable information to make a risk assessment decision. The problem seems to be with the quality of the investigation undertaken by the CSC. It seems that in terms of investigating the disciplinary matter, the investigators did little more than attend court, request information from the RCMP, which never was received, and possibly ask Mr. Clements at court to tell Mr. Basra that the investigators wished to speak to him. I use the word “possibly” since the investigators were not called to give evidence as to what they did or did not do. [112] I am concerned that the investigators made no attempt to directly contact Mr. Basra to obtain his side of the story. I am not prepared to speculate as to what he may or may not have said had the CSC attempted to contact him. I put no weight on Exhibit E-14, which contains speculation by Ms. Mynott in an email to Ms. Chima that: Sometimes in case [sic] such as these lawyers advise their clients not to discussing [sic] disciplinary investigations until the court case has been completed.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-13", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 16–17", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "[113] The investigators had the power to set a meeting with Mr. Basra, advise him of the time and place of the meeting and notify him that he could bring a bargaining agent representative with him. This was never done, and no explanation was given as to why. The investigators were never called as witnesses to explain what they did. I draw an adverse inference against the respondent for failing to call the investigators to explain their investigation. [114] Mr. Basra did provide some information to Mr. Scott at the meeting where Mr. Basra was suspended. Mr. Basra also had Mr. Clements provide information as to when he became aware of the charge. Mr. Scott also informed Mr. Basra, both orally and in writing, that an investigation had commenced and that the investigators would talk to him. It appears that the investigators did not bother to contact Mr. Basra directly. They have not even reported on their findings. [115] This is not a case where Mr. Basra instructed the CSC not to deal with him directly but to deal with his lawyer. In my view, in the absence of this instruction, there is no duty on the CSC to deal only with the employee’s lawyer.\n\nIn essence, in the original decision, I found that the decision to suspend the grievor indefinitely without pay became disciplinary as of May 3, 2006 because, 30 days after it began, the CSC still had not attempted to obtain information from the grievor about the facts alleged in the privacy coordinator’s letter (Exhibit E-7) and that the sole basis for the indefinite suspension without pay was that letter.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-14", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 18", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The discipline at issue was an interim disciplinary measure, imposed pending the outcome of a disciplinary investigation. The deputy head submits that the privacy coordinator’s letter (Exhibit E-7) provided a sufficient basis for the interim indefinite disciplinary suspension without pay. The deputy head points out that elements of that letter are uncontradicted and do not appear controversial, relying on statements to that effect from the Federal Court of Appeal at paragraph 21 of 2010 FCA 24, as follows:", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-15", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 21", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "… The issue is whether it is reliable. In this respect, we note that there are elements of information contained in the letter from Crown counsel’s office which are not contradicted and do not appear to be controversial… 19 The deputy head wrote that the privacy coordinator’s letter (Exhibit E-7) establishes the following: 20 The deputy head submits that it has proven that the Code of Discipline in the Correctional Service of Canada (“the Code of Discipline”) and the Standards of Professional Conduct in the Correctional Service of Canada (“the Standards of Professional Conduct”) were breached. The deputy head states that it has the right to have CSC employees’ conduct assessed against those standards whether or not the conduct occurred off-duty: see Tobin v. Canada (Attorney General), 2009 FCA 254, at para 47. The deputy head submits that, in the context of a sexual assault investigation, the grievor lied to the police about his name, about knowing the victim and about not having sex with her. Those facts, together with the DNA sample, constitute sufficient information. It is not a mere allegation. On a simple balance of probabilities standard (as detailed in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.)), it is clear that the grievor had sex with the victim, lied to the police about it and was charged with sexual assault. His conduct violated the Standards of Professional Conduct and the Code of Discipline. The deputy head submits that, although employers do not usually impose an interim disciplinary suspension without pay, one is warranted if police charge an employee with a criminal offence: see McManus v. Treasury Board (Revenue Canada, Customs and Excise), PSSRB File Nos. 166-02-8048 and 8078 (19800310), at pages 21-22.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-16", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 21–22", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "21 The deputy head argues as follows: … The facts of this case reveal a far more serious situation for the employer. This is an employee charged with a violent sexual assault who when first questioned by the police lied about his name, lied about knowing the victim and lied about not having had sex with the victim. This raises the seriousness far beyond what was required in the McManus decision.\n\nThe deputy head submits that the discipline imposed was not excessive, was reasonable given the evidence and should not be tinkered with by an adjudicator: see Wilson v. Treasury Board (Solicitor General Canada – Correctional Service), PSSRB File No. 166-02-25841 (19950301). The deputy head submitted as follows that the only evidence available to the CSC was provided by the police: … As in all cases of sexual assault there may be competing versions of events and in some case [sic], such as this one, DNA evidence. The important point is that none of this is available to the employer. Police agencies are not going to compromise their investigations or expose victims to internal disciplinary investigations during the course of their own investigations. As a result, the employer did the only thing it could do in the circumstances, wait for the resolution of the criminal matter and monitor court proceedings.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-17", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 23", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The deputy head also stated as follows: … it remains the position of the employer that it is a denial of procedural fairness not to allow the employer to rely on the grievor’s criminal convictions to “shed light” on the disciplinary suspension at issue. It is important to point out that the employer did not make a strategic decision not to rely on this information when the case was first presented. The convictions post-date the original hearing. The employer did not have the option of relying on convictions that did not exist at the time. As noted by the Supreme Court of Canada in Toronto (City) a criminal conviction is conclusive and the issues cannot be re-litigated at adjudication. The Supreme Court was also clear that post discharge evidence is relevant: “… if it helps shed light on the reasonableness and appropriateness of the dismissal under review at the time it was implemented.” Subsequent to the suspension (and subsequent to the original hearing on this matter) the grievor was convicted of a violent sexual assault contrary to Section 271 of the Criminal Code, R.S.C. 1985, c. C-46: R v. Basra (2008), 78 W.C.B. (2d) 194, decision released July 11, 2008. On November 7, 2008, the appellant was sentenced to two years less one day and was placed on probation for a period of three years following his release, with a number of statutory conditions: R. v. Basra 2008 BCSC 1526. It is respectfully submitted that this evidence is relevant and should be considered in the disposition of the suspension grievance as this evidence “sheds light” on the decision at the time it was made.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-18", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 23–26", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Furthermore, the fact that the grievor was convicted of violent sexual assault is dispositive of the matters at issue in this adjudication, i.e., clearly this behaviour warrants discipline and the disciplinary suspension imposed is justified on the facts of the case. [Sic throughout] [Footnotes omitted]\n\nThe grievor did not contradict the facts. The adjudicator may accept less-than-satisfactory evidence given that the grievor could have testified and shed light on the matter: see Brown and Beatty, Canadian Labour Arbitration, Fourth Edition, at para 3:5120; and Ayangma v. Treasury Board of Canada (Department of Health), 2006 PSLRB 64, at para 62. An adverse inference should be drawn against the grievor.\n\nThe grievor argued that the Federal Court of Appeal held that I had correctly considered the CSC’s intent when I determined that the CSC’s indefinite suspension of him, without pay, became disciplinary as of May 3, 2006. The Federal Court of Appeal upheld that the grievor had been subject to a disciplinary suspension.\n\nThe grievor argued that the Federal Court of Appeal stated that I was not bound to accept the hearsay evidence contained in the privacy coordinator’s letter (Exhibit E-7) relied upon by the deputy head. It was admissible, but it was for me to determine the weight to attach to it.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-19", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 27", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor argued that, when it reheard the matter, the Federal Court of Appeal noted that the deputy head “… bears the onus of proving the underlying facts which are invoked to justify the imposition of discipline … [t]his applies to both the facts justifying the imposition of the discipline as well as the appropriateness of the discipline.” As the deputy head did not satisfy the onus to justify the discipline or its appropriateness, it was not necessary for the grievor to give evidence: see Labatt Alberta Brewery v. Local 250 Brewery Workers, [2004] A.G.A.A. No. 63 (QL), at paras 63-64. In 2010 PSLRB 131, I issued directions for the hearing of this matter and held at paragraph 10 that “… the purpose of this new determination, ordered by the Federal Court of Appeal, is not to allow the deputy head to start again without considering that a hearing has already been held…”", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-20", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 28–29", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor argues that, by continuing to refer to his subsequent criminal conviction and his discharge, the deputy head is relying on evidence that is not part of the record and that it has deliberately flouted the directions for the hearing. Alternatively, the grievor argues that “… an arbitrator ‘is required to determine whether or not the Company had just and sufficient cause for dismissing the employee as at the time when the employee was actually dismissed’ or disciplined…” To allow the deputy head to rely on subsequent-event evidence “… would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed and the time lag between the initial filing and the final hearing by the arbitrator.” The grievor argues that the deputy head should not be allowed to take advantage of the delays arising from its own actions. A subsequent conviction does not shed any light on the appropriateness or justification for the indefinite disciplinary suspension without pay. The suspension must be assessed based on the circumstances known when it was imposed, which was April 2006: see Ayangma, and Legault v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 82, at para 315.\n\nThe grievor’s termination because of his criminal conviction is the subject of a separate grievance, and I have no jurisdiction over that grievance: see Ayangma,at para 82. The grievor submits that my role is limited to reviewing the evidence on the record about the indefinite disciplinary suspension grievance.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-21", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 30–31", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor stated that the deputy head’s repeated claim that the grievor gave a false name to the police is contradicted by the contents of the privacy coordinator’s letter (Exhibit E-7) and that I rejected that claim. The grievor argues that I found at paragraphs 49 and 51 of the original decision that the grievor did not give a false name to the police.\n\nThe grievor states that, even though the privacy coordinator’s letter (Exhibit E-7) is admissible, it should be given no weight, as it contains double and triple hearsay on the main points that the deputy head relied on. The privacy coordinator’s letter (Exhibit E-7) indicates as follows: “Reportedly, Mr. Basra gave the complainant a false name …”", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-22", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 32", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor notes that the deputy head relies on comments in the Federal Court of Appeal decision that the facts set out in the privacy coordinator’s letter (Exhibit E-7) were uncontested. The grievor states as follows: … All the Federal Court of Appeal said was that there are “elements of information” in the letter from Crown Counsel that are not contradicted and “do not appear controversial” (at paragraph 21). Such a general statement cannot be translated into the proposition that all of the facts set forth in the letter from Crown Counsel were not contested or must be accepted as true. The problem facing the employer is that the letter from Crown Counsel does not constitute clear, cogent or convincing evidence that would establish that the grievor lied to the police about his name, lied to the police about knowing the victim and lied to the police about not having had sex with her. The evidence shows that the grievor did not lie to the police about his name at all. Furthermore, the employer has failed to prove, on a balance of probabilities, through clear, cogent and convincing evidence, that the grievor lied to the police about knowing the victim and about not having had sex with her.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-23", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 33–34", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor further notes as follows: I pause to note that the employer has clearly abandoned the primary justification for the lengthy suspension without pay that it relied upon at the original hearing, namely the allegation that the grievor failed to advise his supervisor of being charged with a criminal offence (2007 PSLRB 70, at paragraph 16). As you stated in the original decision, “the respondent has no case against Mr. Basra on the point of whether he went to work without informing the CSC of the charge. The evidence establishes that the CSC learned of the charge before Mr. Basra did” (at paragraph 109).\n\nThe grievor submits that the evidence must be sufficiently clear, convincing and cogent: see F.H. v. McDougall, 2008 SCC 53, at para 46. He submits that the grievance should be upheld with the same remedy that was originally determined, namely, that he be reinstated to his CX-01 position effective May 3, 2006, with back pay, full benefits and interest, until the date of his termination.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-24", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 35", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Contrary to what the deputy head argued, the grievor submits that an adverse inference should not be drawn from his failure to testify at the original hearing. The onus is on the deputy head to prove the facts justifying the discipline and its appropriateness. I am required to make findings based on the evidence. The deputy head failed to satisfy the onus, and a failure to testify cannot fill a gap in the case of the party bearing the burden of proof: see Labatt Alberta Brewery and Burns Meats, a division of Burns Foods (1985) Ltd. v. United Food and Commercial Workers Union, Local 832 (1993), 38 L.A.C. (4th) 172 (“Burns Meats”), at 183-184. The deputy head bears the onus, and the failure of the grievor to testify cannot be “… a basis for raising the ‘blameworthiness’ or ‘seriousness’ of the conduct beyond what the objective evidence discloses …”: see Burns Meats, at page 184.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-25", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 36", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor submits in the alternative that, if he breached the Code of Discipline or the Standards of Professional Conduct, then the indefinite disciplinary suspension without pay was excessive. Such a drastic action can be justified only if he were unable to continue in his job. I dealt with that issue at paragraphs 37 and 128 to 130 of the original decision. The grievor wrote the following: … As noted in [the original] decision, the grievor was not detained in custody after the charges were laid against him, he worked for an 18 month period after the alleged sexual assault and before the charge was laid with an unblemished work record, he did not have unrestricted access to confidential information, he was not a liaison officer with the RCMP, he did not have unsupervised access with visitors, and many of the posts he worked at involved little inmate interaction (at paragraphs 128 – 129). There were at least 3 positions available in which the grievor could have been posted with no contact with visitors, female staff or inmates (at paragraph 130). There was no evidence on the record that would suggest that female correctional officers would be unwilling to work with the grievor or feel that their safety would be jeopardized. In fact, one female co-worker, Ms. Enns, testified that she would not have any concerns working with the grievor (at paragraph 130).", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-26", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 37–38", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In this case, the grievor was suspended indefinitely without pay on April 3, 2006, pending the completion of a disciplinary report, which had not been provided as of the dates of the original hearing, October 25 to 27, 2006. I drew an adverse inference from the deputy head’s failure to call the investigators to testify about their investigation or to explain the delay. Mitigating factors are present, including the failure to complete an investigation within a reasonable time, the grievor’s unblemished work record, which included a period of 18 months after the alleged misconduct, and his better–than–average attendance. The deputy head also abandoned one of its primary justifications for the indefinite suspension without pay on which it relied at the original hearing — the allegation that the grievor attended work without advising his supervisor that he had been criminally charged (see paragraphs 16 and 109 of the original decision).\n\nThe deputy head replies that it is not flouting any ruling by attempting to introduce evidence of a conviction. The deputy head states that parties are not permitted to seek judicial review of interlocutory rulings, that an adjudicator is not functus officio until a final decision is made and that it remains of the view that the information should have been considered.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-27", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 39–41", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The deputy head states that the conviction sheds light on the suspension decision. Although the conviction occurred after the date of the indefinite suspension without pay, it is proof that the events before the conviction occurred. Therefore, it is not new evidence. The deputy head states that the grievor has been convicted of the offence and that it is not required to prove the offence: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. The fact that a conviction will feature prominently in a hearing about the grievor’s termination does not mean that it cannot be introduced in the hearing for the suspension grievance. The indefinite suspension without pay was an interim measure, and an indefinite suspension and a termination constitute one penalty: see Côté v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-9811 to 9813 and 10178 (19831017). The deputy head states that, if the grievor wished to attack the reliability of evidence obtained through a DNA warrant, he could have testified at the original hearing. Principles that the grievor cited, related to criminal law, are not easily transferrable to labour arbitration adjudication proceedings; proceedings before an adjudicator are summary in nature, and adjudicators are not bound by the same rules of evidence as are the criminal courts.\n\nThe CSC originally suspended the grievor indefinitely without pay for two reasons: he was charged with sexual assault, and he failed to advise his supervisor before resuming his duties that he had been charged with a criminal offence.\n\nI determined in the original decision that the deputy head did not prove the grievor’s failure to disclose the criminal charge before he returned to work.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-28", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 42–43", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This case is about the sufficiency and quality of the information tendered by the deputy head at the original hearing to support an indefinite disciplinary suspension of the grievor without pay, after he was charged with sexual assault. In the original decision, I found that the indefinite suspension pending investigation became disciplinary as of May 3, 2006, 30 days after it was imposed. The original decision invalidated the disciplinary part of the indefinite suspension without pay. Given the CSC’s approach, particularly that it did nothing to investigate, the indefinite disciplinary suspension without pay would have continued until the date on which a court resolved the grievor’s criminal charge. The CSC’s decision rested entirely on the privacy coordinator’s letter (Exhibit E-7). The deputy head’s only witness, Mr. Brown, was not personally involved with the initial decision to suspend the grievor indefinitely without pay or to order an investigation.\n\nDespite my ruling provided in 2010 PSLRB 131, the deputy head persists in submitting information about the grievor’s conviction, which occurred more than two years after the date on which he was indefinitely suspended without pay. I see no basis to conclude that an event that occurred two years later — a conviction — justifies the indefinite disciplinary suspension without pay at the time it was imposed. The CSC clearly did not possess that information when it decided to suspend the grievor. My task is to review the CSC’s decision in the context of when it was made, based on the information available at that time, and not on a set of facts as of today, six years after the date of the indefinite disciplinary suspension without pay: see Québec Cartier.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-29", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 44", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The treatment of the admission of subsequent-event information is set out in Québec Cartier, at pages 1101-1102, as follows: This brings me to the question I raised earlier regarding whether an arbitrator can consider subsequent-event evidence in ruling on a grievance concerning the dismissal by the Company of an employee. In my view, an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented. Accordingly, once an arbitrator concludes that a decision by the Company to dismiss an employee was justified at the time that it was made, he cannot then annul the dismissal on the sole ground that subsequent events render such an annulment, in the opinion of the arbitrator, fair and equitable. In these circumstances, an arbitrator would be exceeding his jurisdiction if he relied on subsequent-event evidence as grounds for annulling the dismissal. To hold otherwise would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed and the time lag between the initial filing and the final hearing by the arbitrator…", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-30", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 45", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "It is possible that information about the grievor’s conviction could be relevant to his termination grievance. However, I was not appointed to hear or decide his termination grievance. My jurisdiction is over the grievor’s indefinite disciplinary suspension without pay only. This review is based on the information that the CSC had when it imposed the indefinite disciplinary suspension without pay and continued it. Because of directions for hearing in my ruling provided in 2010 PSLRB 131, I have not relied on the information provided by the deputy head about the grievor’s conviction and sentencing, including the cited cases, which apparently relate to his conviction and sentencing hearing.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-31", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 46", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This matter was referred back to me by the Federal Court of Appeal because it found an adjudicative error in the treatment of hearsay evidence in the original decision. The Court stated as follows at paragraphs 21 and 22 of 2010 FCA 24: [21] In characterizing the use of hearsay evidence to establish a material fact as an adjudicative error, the adjudicator was articulating a principle which is at odds with paragraph 226(1)(d) of the PSLRA which provides that an adjudicator may accept any evidence, whether admissible in a court of law or not. The adjudicator is not bound to accept hearsay evidence but he cannot reject it out of hand simply because it is hearsay. The issue is whether it is reliable. In this respect, we note that there are elements of information contained in the letter from Crown counsel’s office which are not contradicted and do not appear to be controversial. It was unreasonable, and an error of law, for the adjudicator to conclude that the evidence was not to be considered simply because it was hearsay. [22] Later in the same paragraph, the adjudicator comments that the weight to be attached to hearsay evidence is minimal and that he attaches no weight to hearsay evidence. It is trite law that it is for the adjudicator to weigh the evidence before him, but it is equally trite that in order to do so, he must consider it. He can not [sic] dismiss it out of hand because it is hearsay evidence. In this case, one of the issues raised was whether the appellant had deceived the police. The adjudicator held that there was no evidence on point, thereby ignoring the contents of the letter from Crown counsel’s office, which was material to that issue.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-32", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 47–48", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I believe that the Court’s direction is to weigh the evidence and to come to a reasoned determination as to the effect of the evidence tendered, keeping in mind the three questions that must be determined when assessing whether the deputy head proved just cause for the indefinite disciplinary suspension without pay, as specified in Wm. Scott & Co Ltd. v. Canadian Food and Allied Workers Union, Local P-162, [1977] 1 Can. L.R.B.R. 1 (“William Scott”). I pause to note that the William Scott questions are disjunctive. If the deputy head fails to establish an event meriting discipline, then there is no need to consider the remaining two questions.\n\nThe first William Scott criterion is primarily a factual inquiry “… about whether the employee actually engaged in the conduct which triggered the discharge …”: see William Scott. The Federal Court of Appeal referred to certain of the evidence as “not … controversial.” At the original hearing, the grievor did not admit to any facts; nor was I made aware of any pre-hearing admissions made to the CSC during its investigatory process or during the grievance process. This means that all the evidence was disputed and that the deputy head had the burden of proving by sufficiently clear, convincing and cogent evidence all the elements of its case on a balance of probabilities: see F.H v. McDougall.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-33", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 49–50", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Generally, evidence is reliable when it is espoused by a witness who observed facts and whose ability to observe and recall can be tested through cross-examination. When determining whether evidence is credible and reliable, adjudicators often apply the test in Faryna when assessing disputed testimony. Adjudicators examine whether the information provided by a witness makes sense in the context of the circumstances. I cannot apply that approach because no testimony was given concerning the facts of the alleged misconduct. I note that I do not even have the words of several witnesses in statements from which I could possibly make some use of the Faryna test, as the information in the privacy coordinator’s letter (Exhibit E-7) was edited.\n\nHearsay evidence is admissible at adjudication pursuant to paragraph 226(1)(d) of the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, which reads as follows: 226. (1) An adjudicator may, in relation to any matter referred to adjudication, (d) accept any evidence, whether admissible in a court of law or not …", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-34", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 51", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the original hearing, the privacy coordinator’s letter (Exhibit E-7) was received, was marked as an exhibit (Exhibit E-7) and was part of the evidence before me. The grievor did not object to the deputy head tendering it. I was not asked to rule on its admissibility. No limits were placed on the use of the evidence. Had I been asked for a ruling, I would have determined that the document was admissible. I note that the privacy coordinator’s letter (Exhibit E-7) would have been admissible in court, either as a business record under the Canada Evidence Act, R.S.C., 1985, c. C-5, or as part of the res gestae, meaning matters leading up to and forming part of the narrative that led to the indefinite disciplinary suspension without pay.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-35", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 52", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The evidence is not barred from consideration simply because it contains hearsay. It is a question of what the privacy coordinator’s letter (Exhibit E-7) shows and what fair and proper inferences can be drawn from it, given that the deputy head has a burden to establish by sufficiently clear, convincing and cogent evidence just cause for an indefinite disciplinary suspension without pay, on a balance of probabilities. An approach to hearsay evidence, which I believe is the proper course, is set out as follows in Canadian Labour Arbitration, at para 3:4310: More recently, the analysis in relation to both admissibility and weight has been carried out by application of the criteria of “necessity” and “reliability”, as developed by the Supreme Court of Canada in criminal cases. Hearsay evidence may also be admitted pursuant to the res gestae doctrine and other exceptions… Although admissible, in light of the general acceptance by arbitrators of the purposes of the hearsay rule, typically they refuse to base a finding of critical facts on hearsay evidence, particularly when those facts could have been established either by calling an employee or by an admission by the grievor. Indeed, even when hearsay evidence is admitted, arbitrators have generally been reluctant to give hearsay evidence much weight, given the inherent unfairness of not being able to test it by cross-examination and the tendency of arbitrators to act in accordance with the “best evidence rule”. [Footnotes omitted]", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-36", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 53", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The principled approach to admitting hearsay evidence is based on the criminal law cases of R. v. Khan, [1990] 2 S.C.R. 531, and R. v. Smith, [1992] 2 S.C.R. 915. In Khan, the Supreme Court of Canada wrote as follows at page 548: I conclude that hearsay evidence of a child’s statement on crimes committed against the child should be received, provided that the guarantees of necessity and reliability are met, subject to such safeguards as the judge may consider necessary and subject always to considerations affecting the weight that should be accorded to such evidence… I conclude that the mother’s statement in the case at bar should have been received. It was necessary, the child’s viva voce evidence having been rejected. It was also reliable; the child had no motive to falsify her story, which emerged naturally and without prompting. Moreover, the fact that she could not be expected to have knowledge of such sexual acts imbues her statement with its own peculiar stamp of reliability.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-37", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 54", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In Smith, the Supreme Court of Canada held as follows at pages 933-934: This Court's decision in Khan, therefore, signaled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence, and its necessity. A few words about these criteria are in order. The criterion of \"reliability\"—or, in Wigmore's terminology, the circumstantial guarantee of trustworthiness—is a function of the circumstances under which the statement in question was made. If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken, the hearsay evidence may be said to be “reliable”, i.e., a circumstantial guarantee of trustworthiness is established. The evidence of the infant complainant in Khan was found to be reliable on this basis. The companion criterion of “necessity” refers to the necessity of the hearsay evidence to prove a fact in issue. Thus, in Khan, the infant complainant was found by the trial judge not to be competent to testify herself. In this sense, hearsay evidence of her statements was necessary, in that what she said to her mother could not be adduced through her. It was her inability to testify that governed the situation. The criterion of necessity, however, does not have the sense of “necessary to the prosecution’s case”. If this were the case, uncorroborated hearsay evidence which satisfied the criterion of reliability would be admissible if uncorroborated, but might no longer be “necessary” to the prosecution’s case if corroborated by other independent evidence.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-38", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 54", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Such an interpretation of the criterion of “necessity” would thus produce the illogical result that uncorroborated hearsay evidence would be admissible, but could become inadmissible if corroborated. This is not what was intended by this Court's decision in Khan. As indicated above, the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations. Wigmore, while not attempting an exhaustive enumeration, suggested at § 1421 the following categories: (1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross-examination]. This is the commoner and more palpable reason … (2) The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources … The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same. Clearly the categories of necessity are not closed. In Khan, for instance, this Court recognized the necessity of receiving hearsay evidence of a child’s statements when the child was not herself a competent witness. We also suggested that such hearsay evidence might become necessary when the emotional trauma that would result to the child if forced to give viva voce testimony would be great. Whether a necessity of this kind arises, however, is a question of law for determination by the trial judge.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-39", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 55–56", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "When determining whether the deputy head has proven by sufficiently clear, convincing and cogent evidence, on a balance of probabilities, misconduct supporting an indefinite disciplinary suspension without pay, I must decide the weight to attach to the privacy coordinator’s letter (Exhibit E-7). It is important to scrutinize it with care, as there is no other evidence of misconduct by the grievor. He was a good employee, with some seniority and a good attendance record. He received commendations from the CSC. He appears to have treated female co-workers with respect. There was evidence that a female co-worker did not feel at risk working with him, even though she knew of the criminal charge against him. It was an “older allegation” that was about a misconduct that occurred outside the workplace. The grievor had received a judicial interim release pending the determination of his criminal charge. The deputy head did not interview the grievor or the complainant. Nor did it gather any evidence or information. The deputy head could have taken many steps to ascertain the allegation’s reliability or trustworthiness, but nothing was done. A proper investigation was not conducted. Nor were the investigators called as witnesses to explain their investigation.\n\nWhen weighing the privacy coordinator’s letter (Exhibit E-7), I considered a number of points, as follows, that bear on the reliability of the allegations that it contains: I note that I considered these issues in a vacuum as the deputy head failed to call the privacy coordinator at the original hearing and simply introduced his letter (Exhibit E-7) by calling its recipient to testify, who obviously could have shed no light on the reliability of its allegations.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-40", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 57–59", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I note that the privacy coordinator is a provincial government official who is a Crown counsel and a privacy coordinator. It appears that his letter (Exhibit E-7) was written in the ordinary course of business, pursuant to a protocol to inform Crown employers of charges faced by an employee. Presumably, a privacy coordinator has to balance a duty to be accurate with a duty to preserve the complainant’s privacy. Presumably, the privacy coordinator’s letter (Exhibit E-7) was carefully crafted with a view to protect that privacy, as it was heavily edited. I use “presumably” because I have no information before me to assist me on these points. I would have liked to hear from the privacy coordinator at the original hearing as his letter (Exhibit E-7) was the sole source of proof of misconduct.\n\nI take adjudicative notice that, in British Columbia, the decision to lay a criminal charge rests with the Crown and not with a complainant or the police. A Crown counsel makes a decision based on the reviewed evidence, presumably taking into account a standard of reviewing evidence.\n\nThere is no evidence before me that the privacy coordinator was the Crown counsel who made the charging decision. There is no evidence before me of the standard used by the Crown in assessing the information collected by the police to determine whether a charge should be laid. There is no evidence before me that the privacy coordinator reviewed the substance of the evidence collected by the police to determine whether the evidence collected met the Crown’s standards for laying a criminal charge.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-41", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 60–61", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "There is no evidence before me that the privacy coordinator reviewed any of the evidence or source documents other than a “police report,” which is not actual evidence but a summary. Without evidence, I am not prepared to infer that the police summary was actually prepared by an officer who dealt directly with either the complainant or the grievor. It could have been prepared by a liaison officer with no connection to the investigation. Given that there is no evidence of a personal review of the evidence or of the charging process by the privacy coordinator, then there is no circumstantial guarantee as to the reliability of his letter’s (Exhibit E-7) contents. It contains mere allegations of misconduct on the part of the grievor in his dealings with the complainant or the police.\n\nOne could say that the privacy coordinator’s letter (Exhibit E-7) is a business record. Although business records are admissible in proceedings, there is no legal presumption that the contents of a document are accurate and truthful. Adjudicators are often required to make decisions about documents that purport to prove something other than what they are. On examining the privacy coordinator’s letter (Exhibit E-7), I can discern that a government official is communicating facts to the CSC that an indictable offence was laid against the grievor. Some heavily edited information is given about the investigation and the underlying facts. Further information about the standards used in assessing the information would have helped me assess whether a substantial guarantee was made as to the trustworthiness of the allegations.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-42", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 62–64", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I thought that, at the original hearing, where it was clear that the indefinite suspension without pay was being grieved as a disciplinary penalty, the deputy head would call the privacy coordinator as a witness to explain and elaborate on the contents of his letter (Exhibit E-7). The deputy head might have wanted to call the Crown prosecutor who approved the charge, or some evidence of the standard used. The deputy head might have called a police officer knowledgeable about the investigation. This is particularly important, because the CSC relied on the privacy coordinator’s letter (Exhibit E-7) as its sole proof of misconduct and because the grievor had some seniority and a good record. His rights were substantially impacted by the CSC’s decision to impose an indefinite disciplinary suspension without pay.\n\nOn examination, it becomes apparent that the privacy coordinator’s letter (Exhibit E-7) contains different types of information. It has been heavily edited, and it apparently discloses information that can be characterized as second–, third– or fourth–hand hearsay.\n\nThere is information in the privacy coordinator’s letter (Exhibit E-7) that purports to set out dealings between the Crown and the grievor. The grievor was charged with the indictable offence of sexual assault, which is confirmed by the information attached to the privacy coordinator’s letter (Exhibit E-7) and by a letter that the grievor’s counsel provided to the CSC (Exhibit E-10). That is beyond dispute and is within the privacy coordinator’s knowledge.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-43", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 65–66", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "However, I note that the privacy coordinator’s letter (Exhibit E-7) does not contain the full details of the interaction between the Crown and the grievor. The grievor had apparently hired a lawyer to monitor whether charges were to be laid, and the lawyer repeatedly asked to be informed in advance so that the grievor could appear to face the charges. The grievor was not actually advised of the charge by the Crown, but the CSC was informed directly by the privacy coordinator’s letter (Exhibit E-7). The grievor did not become aware of the charge until the CSC suspended him indefinitely without pay (Exhibit E-10).\n\nIt is clear from Exhibit E-10 that the grievor gave a statement to the police in 2004, that he was released on a promise to appear, that no information had been laid as of the appearance date, that the grievor’s lawyer monitored the situation monthly to determine whether charges were contemplated, and that he was advised in early March 2006 that no report had been received and no charge laid. I note that the privacy coordinator’s letter (Exhibit E-7) is uncontradicted proof that the grievor was charged with an offence, but it is an edited version of events that occurred between the grievor and the Crown.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-44", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 67–68", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The privacy coordinator’s letter (Exhibit E-7) also contains information about the grievor’s dealings with the complainant. The only source referred to in the privacy coordinator’s letter (Exhibit E-7) for that information is the police report. The information consists of the following: I note that those allegations, if proven, could constitute the criminal offence of sexual assault. Although it is not stated expressly in the privacy coordinator’s letter (Exhibit E-7), an issue at a criminal trial might be the complainant’s capacity to consent and whether a substance intoxicated her.\n\nThe information provided in the privacy coordinator’s letter (Exhibit E-7) is heavily edited. Because of that, I could not see any hallmarks suggesting that its information is reliable. For example, I note that, in Khan, a hallmark of reliability was the detailed account given in the child’s words that was not normally within a young child’s knowledge. For example, nothing in the privacy coordinator’s letter (Exhibit E-7) assists me with determining how soon the alleged offence was reported to the police. Had I had the complainant’s statement, I might have been able to determine whether there were hallmarks suggesting that the information in the privacy coordinator’s letter (Exhibit E-7) is reliable.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-45", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 69–71", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I note that the deputy head’s argument continues to gloss or spin the information the CSC received beyond reasonable inferences that can be drawn from the privacy coordinator’s letter (Exhibit E-7). The deputy head argues as follows: … The facts of this case reveal a far more serious situation for the employer. This is an employee charged with a violent sexual assault who when first questioned by the police lied about his name, lied about knowing the victim and lied about not having had sex with the victim. This raises the seriousness far beyond what was required in the McManus decision. [Emphasis added]\n\nWith respect to that argument, I note that, although the grievor was charged with sexual assault, there is no indication in the privacy coordinator’s letter (Exhibit E-7) that the charge was of violent sexual assault. The definition of sexual assault in the Criminal Code encompasses a variety of acts, from an unwanted kiss to groping or vaginal intercourse. I can infer that the allegations are serious because they raise the issue of consent to sexual acts possibly being vitiated because of the administration of a substance. As I pointed out in the original decision, I cannot infer that it was a violent sexual assault just because the Crown chose to proceed by indictment. A lengthy period passed between the date of the alleged offence and the date on which a charge was laid. I take adjudicative notice that there is a six-month limitation period for summary conviction offences, and the Crown may simply have chosen to proceed by indictment because of the expiration of the limitation period.\n\nThe deputy head alleged that the grievor lied about his name to the police. That allegation has no support in the privacy coordinator’s letter (Exhibit E-7).", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-46", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 72–73", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Sometimes evidence disclosed immediately after an alleged event is reliable. I do not have such information, as details of when the complainant disclosed information are not provided in the privacy coordinator’s letter (Exhibit E-7). Sometimes, peculiar hallmarks exist that suggest an inherent reliability to an allegation. This is the case with young children alleging sexual offences who would not ordinarily be expected to be able to provide details. The heavily edited information in the privacy coordinator’s letter (Exhibit E-7) precludes me from finding a detailed or peculiar description of events that would amount to a hallmark of reliability. Had I had the complainant’s original statement, I might have been able to discern such hallmark.\n\nThe deputy head points to the presence of DNA evidence. Sometimes testing provides a good indicator of probable guilt, such as a DNA analysis of seminal fluid collected from swabbing a complainant’s vagina. The privacy coordinator’s letter (Exhibit E-7) does not disclose what part if any of the complainant’s body was swabbed during the testing process. Given the lack of detail in the privacy coordinator’s letter (Exhibit E-7), I cannot conclude that the DNA testing rises to the level of clarity, cogency and convincingness of proving that sexual activity occurred.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-47", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 74–75", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I cannot rely on a privacy coordinator’s summary of a report to Crown counsel that summarized information provided by the police alleging that the grievor reacted in a certain way and that he made certain statements during a police investigation. It could well be highly cogent evidence that would establish probable misconduct, if I had the details. There is too much guesswork to take it as reliable, as much might depend on the actual words used by the grievor and the police officer, the context in which the words were spoken, the police officer’s conduct, and whether the interview was videotaped or recorded in the police officer’s notes. All of that is unknown to me. Further, it appears that the information was edited on its journey from the police officer to the report to Crown counsel and then on to the privacy coordinator and to his letter. Therefore, it lacks clarity, cogency and convincingness.\n\nA good example of the reliability of layered information is that the deputy head maintains in its argument that the grievor misled the police officer as to his identity, which was surmised from the privacy coordinator’s letter (Exhibit E-7), when that letter does not state that information. I note that it would have taken little or no effort for the deputy head to ascertain the identity of the police officer and to issue a summons to that officer to appear at the original hearing to testify on that point.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-48", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 76", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On the point of the false name, it is clear that the grievor did not give one to the police but that he might have to the complainant. It is unclear from the privacy coordinator’s letter (Exhibit E-7) when the grievor allegedly gave a false name, as it does not contain that information. In my view, there may well be a difference between a person using a “handle” or a “user name” in a chat-line context and providing a false name in a face-to-face meeting or on a date. The complainant had a telephone number for the grievor and therefore the means to identify him easily. That point remains unclear to me, particularly since the privacy coordinator couched his letter (Exhibit E-7) in less-than-clear terms by stating the following: “Reportedly, Mr. Basra gave the complainant a false name …” No details are given; nor are the circumstances. It is clearly a less probative statement than: “Mr. Basra gave the complainant a false name.” The deputy head relies strongly on this point, but the privacy coordinator’s letter (Exhibit E-7) is unclear. The deputy head could have dealt with that issue by calling the privacy coordinator or the investigating officer to give evidence at the original hearing. The burden of proof rests with the deputy head, which is bound to prove all the facts supporting the indefinite disciplinary suspension without pay. The CSC could easily have obtained or sought to obtain the grievor’s version of the facts. It did not.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-49", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 77–78", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In the privacy coordinator’s letter, there is a synopsis of dealings between the grievor and the police during an investigation. Some of this information might have been collected by a police officer or others during an investigative process. This information consists of the following: Again, there must be a source of information for those points, including a statement from the grievor or, alternatively, police officers’ notes, a report to Crown counsel, a DNA warrant and the information relied upon to obtain the warrant, information concerning the samples and what body part if any the sampling was taken from, and a report analyzing the samples. For example, I note that the deputy head submitted that “… the DNA warrant establishes that [the grievor] did have sex with the victim.” The privacy coordinator’s letter (Exhibit E-7) states only that a sample from the grievor matched a sample taken from the complainant. It states nothing about what part if any of her body was sampled.\n\nParticularly germane in the synopsis description would have been the precise words or gestures that the grievor allegedly used about denying knowing the complainant, denying that sex occurred and refusing to provide a DNA sample. I note that the CSC relied on those key points for indefinitely suspending the grievor without pay and that the information was heavily edited by someone with apparently no firsthand knowledge of the case. The information may well be third-hand information – originating with an investigator and then passing to an officer who prepared the report to Crown counsel, and finally to the privacy coordinator who reviewed it and to his letter.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-50", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 79–81", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The evidence is mixed on whether the grievor misled the police. I do not have the actual information provided to the police. Information in a letter from the grievor’s counsel dated April 27, 2006 (Exhibit E-10), indicates that the grievor gave a statement to the police on November 18, 2004.\n\nI accept that there is no controversy that the grievor was charged with an offence. However, the deputy head used second-, third- and fourth-hand material in the privacy coordinator’s letter (Exhibit E-7) to attempt to establish the material fact that the grievor probably committed sexual assault. I note that sexual assault is a serious matter and that, generally, in a civil sexual assault case, the assault must be established by clear, cogent and convincing evidence: see F.H. v. McDougall.\n\nGenerally, before a decision maker makes findings, he or she hears from both sides. The CSC appears to have recognized the seriousness of the situation by appointing an investigation panel, which did little or nothing for months. The CSC did not seek out the grievor’s side of the story; it simply suspended him indefinitely without pay. In my view, its intent was to suspend him indefinitely without pay until the matter was dealt with in criminal court. My view is that the investigators did not intend to interview the grievor before the matter was dealt with in criminal court.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-51", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 82–84", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "To the extent that the privacy coordinator’s letter (Exhibit E-7) is uncontradicted, this is the direct result of the CSC failure to investigate and obtain the grievor’s side of the story. Further, at the original hearing, the deputy head introduced the privacy coordinator’s letter (Exhibit E-7) by calling its recipient to testify. The deputy head did not call the privacy coordinator. The deputy head deprived the grievor of the opportunity to challenge the underlying facts that alleged his misconduct by cross-examining a witness.\n\nI found that method particularly unfair when combined with the deputy head’s opening statement that the grievor had been given an opportunity to respond to the allegations when, in fact, no disciplinary meeting was ever held and the investigators did not ask him for his side of the story.\n\nThe grievor did not adduce any evidence to contradict the contents of the privacy coordinator’s letter (Exhibit E-7). In our adversarial system, a grievor is not required to testify. However, I note that the burden of proof in disciplinary matters rests with the deputy head to establish by clear, cogent and convincing evidence its case on a balance of probabilities. The question is whether the evidence tendered by the deputy head is sufficiently reliable to discipline the grievor by suspending him indefinitely without pay. My concern remains with the quality of evidence used by the CSC to suspend him.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-52", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 85–86", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Apparently beyond controversy or dispute is that the grievor was charged with a sexual offence, which was proceeding to trial. Any sexual assault is serious. My concern is that the CSC did nothing to attempt to ascertain the facts, other than having Mr. Scott read the privacy coordinator’s letter (Exhibit E-7) and appoint investigators who did little or nothing to ascertain the facts. From time to time, the indefinite disciplinary suspension without pay was renewed based on no new information coming to the CSC’s attention. It seems that the CSC simply accepted the contents of the privacy coordinator’s letter (Exhibit E-7) as proven facts.\n\nFurther, the CSC leapt to certain conclusions, which were not supported by the evidence. For example, it concluded that the grievor had a duty to disclose to the CSC that he was being investigated by the police, that he was dishonest by withholding that information and that he failed to disclose that he had been charged with a criminal offence. I dealt with those points in the original decision, which led me to conclude (and I remain of the view) that the CSC should not have suspended the grievor indefinitely without pay just because, according to Mr. Scott, he “… failed to advise his supervisor, before resuming his or her duties, of being charged with a criminal offence …”, as no facts justify that assertion.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-53", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 87", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I reject the deputy head’s argument that little could be done in the investigation except to await the disposition of the criminal charge. I commented on the inadequate investigation in the original decision as follows: [28] There was no proof tendered in this proceeding that the CSC obtained an answer from the RCMP. From what was tendered before me, it is clear that the CSC never had in its possession a police report or any of the Crown disclosure package provided in connection with the criminal charge. There is no clear explanation of the CSC’s failure to collect further information. If the investigators had been called as witnesses, perhaps there would have been clearer information at the hearing as to the steps that they took to ascertain the facts.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-54", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 88", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I am mystified by the CSC’s failure to interview the grievor. I note that the importance of doing so was highlighted in the privacy coordinator’s letter (Exhibit E-7), which set out that “… you may wish to share this information with Mr. Basra, to allow him to respond in the appropriate forum.”The grievor was given notice at the outset of his indefinite suspension without pay that he would be called to a disciplinary meeting. In a letter dated April 24, 2006 (Exhibit E-9), he was advised that a disciplinary investigation had been commenced. He was notified as to who was conducting it. He was told the following: “… [y]ou will be contacted in due course to arrange an interview … [y]ou have the right to bring a representative to the interview.” By the time of the original hearing, the grievor had not been contacted for an interview, the investigators had not reported and Mr. Brown had not extended the time for their report. At the original hearing, Sherry Enns, a bargaining agent steward, described the process that the CSC used to call disciplinary meetings, which is set out as follows at paragraph 83 of the original decision: [83] Ms. Enns, a CX-02, testified on behalf of Mr. Basra. As well as working at Matsqui Institution she is Local President of the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN, Mr. Basra’s bargaining agent. She testified that in her experience when the CSC wishes to talk to an employee about a disciplinary matter, it sends the employee a letter and also sends a copy to the bargaining agent. The CSC usually gives 48 hours’ notice, and sets a time, date and place for a meeting. Other than grievance meetings, Ms.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-55", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 88–89", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Enns is not aware of any investigation or disciplinary meetings called by the CSC concerning Mr. Basra in which the bargaining agent was asked to participate; she is only aware of grievance meetings. The deputy head’s witness, Mr. Brown, also testified that he did not extend the time frame for the investigation. I found as follows at paragraph 65: “… Mr. Brown indicated that the usual process during an investigation is to request that the employee attend an interview and that a time, date and place are set for it…”\n\nThe CSC should have provided the grievor with the privacy coordinator’s letter (Exhibit E-7), called the grievor to a meeting and asked him if he had any information to assist it in its decision on his work status. The CSC could have requested that the grievor supply it with all documents relating to the criminal charge. That could have included a copy of the statement that the grievor apparently gave to the police during the investigation or a copy of written information that the Crown must have disclosed to the grievor during the course of the criminal case. The CSC could have asked the grievor to answer its questions. The CSC could have obtained information from such a meeting and found it helpful to assessing the risk of maintaining the grievor in the workplace. Had the grievor failed to cooperate, the CSC could have considered that when determining whether it was necessary to suspend him indefinitely without pay.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-56", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 90–91", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In my view, an employer should be concerned, when an employee is charged with a criminal offence, about whether the employee can remain in the workplace pending the resolution of the charge, whether the employee should be suspended with or without pay, and for how long, and whether the employee’s duties need changing to address any risks. At the time of the charge, until the moment of conviction, an employee is presumed innocent in the criminal law context. An accused person is not obliged to assist the police with an investigation.\n\nCriminal charges can have employment law consequences. Although an employee has the right to be silent in a criminal proceeding, unless there is an express duty to speak, it is not an absolute and unqualified right in the employment law context. An employer must have just cause to discipline an employee. Generally, it means that an employer has an obligation to investigate if it wishes to discipline an employee. An employee is obligated to answer his or her employer’s questions, particularly if the alleged misconduct could impact his or her employer’s legitimate business interests: see British Columbia Ferry Services Inc. v. British Columbia Ferry and Marine Workers’ Union (2007), 159 L.A.C. (4th) 165. At the original hearing, the deputy head’s view was that the grievor’s conduct impacted the CSC operations. Mr. Brown gave extensive evidence on that point.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-57", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 92–93", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I am left to decide whether the CSC had grounds to discipline an employee based on a letter written by a privacy coordinator alleging the commission of a criminal offence and reporting that a charge had been laid. In effect, I am being asked to accept that the privacy coordinator’s letter (Exhibit E-7) is sufficiently clear, cogent and convincing to establish on a balance of probabilities that the grievor committed a sexual assault in the circumstances alleged, therefore violating the Code of Discipline or the Standards of Professional Conduct, without the CSC even bothering to interview the grievor to determine whether there was any substance to the allegation.\n\nI am extremely uncomfortable with the proposition suggested by the deputy head that an employer may simply receive a letter from another government official outlining that a charge has been laid and suspend an employee indefinitely without pay, without any further investigation and in particular without interviewing the employee. The CSC recognized the need for a disciplinary investigation by immediately appointing investigators, who failed to conduct a disciplinary investigation. In this case, the CSC’s approach of suspending the grievor indefinitely without pay and of failing to investigate was abusive of the concept of just cause, which underlies disciplining employees.", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-58", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "paras 94–97", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I find that the deputy head did not establish on a balance of probabilities, with sufficiently clear, cogent and convincing evidence available to the CSC at the time it imposed the indefinite disciplinary suspension without pay, that the grievor committed the alleged sexual assault. Given that failure, the deputy head did not establish a breach of the Code of Discipline or the Standards of Professional Conduct: the deputy head did not meet the first part of the William Scott test.\n\nAt minimum in a case such as this, I would expect the CSC to attempt to clarify the contents of a privacy coordinator’s letter (Exhibit E-7) and to obtain more details. I would expect the deputy head to call the privacy coordinator as a witness at an adjudication hearing. I would think it prudent for the deputy head to call also the investigating officers to testify. Further, at minimum, I would expect the CSC to attempt to interview the grievor within a reasonable time.\n\nBecause of my finding, it is not necessary to consider the remaining parts of the William Scott test. Had the deputy head established on a balance of probabilities, by clear, cogent and convincing evidence available to the CSC at the time it imposed the indefinite disciplinary suspension without pay, that the grievor breached the Code of Discipline or the Standards of Professional Conduct, it would have been necessary to determine whether the indefinite disciplinary suspension without pay imposed was inordinate and, if so, a sanction that should be substituted. The grievor shall be reinstated to his position as of May 3, 2006, which is the date on which the indefinite suspension without pay became disciplinary.\n\nFor all of the above reasons, I make the following order:", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358886-59", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 53", + "act_short": "Basra (2012)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 53", + "marginal_note": "para 98", + "heading": "Discipline and termination grievance; a later proceeding in the leading Basra line", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievance is upheld. The grievor is ordered reinstated to his position as a CX-01 effective to May 3, 2006, with back pay, full benefits and with interest. I reserve jurisdiction over the implementation of this decision for a period of 90 days, to the extent specified above. May 1, 2012. Paul Love, adjudicator", + "current_to": "2012-05-01", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358886/index.do" + }, + { + "id": "fpslreb-358025-1", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 1–5", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Balkar Singh Basra is a correctional officer at the CX-01 group and level employed at the Matsqui Institution of the Correctional Service of Canada (\"the CSC\"), in Abbotsford, British Columbia. He grieves an indefinite suspension imposed by the CSC on April 3, 2006, in the following terms: On April 3, 2006, Randie Scott, acting warden of Matsqui Institution suspended me indefinitely without pay pending an investigation. I grieve that this disciplinary action is unwarranted, excessive and unfounded in facts and law.\n\nMr. Basra seeks immediate reinstatement, destruction of the mention of disciplinary action and investigations from his file, payment of all wages lost since the suspension, a credit for all leave that would have accrued, missed overtime, reinstatement of pension credits that would have been earned, and interest.\n\nThis matter was referred to adjudication under paragraph 209(1)(b) of the Public Service Labour Relations Act (\"the Act\"), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22.\n\nMr. Basra has been employed at Matsqui Institution since he became an indeterminate employee on August 24, 1999. Matsqui Institution is a medium security penitentiary for male inmates in the Pacific Region. It has a capacity of 350 inmates and a staff complement of 250.\n\nOn August 24, 1999, Mr. Basra signed a declaration acknowledging that he had received the Standards of Professional Conduct in the Correctional Service of Canada (\"the Standards of Professional Conduct\") (Exhibit E-4) and the Code of Discipline in the Correctional Service of Canada (\"the Code of Discipline\") (Exhibit G-17) and that he would undertake to maintain the standards of professionalism and integrity set out in those documents (Exhibit E-5).", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-2", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 6–7", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In the Criminal Code, R.S.C., 1985, c. C-46, the definition of peace officer includes a guard as defined under Part I of the Corrections and Conditional Release Act, S.C. 1992, c. 20. In his letter of appointment dated August 10, 1999 (Exhibit E-3), Mr. Basra was advised that he was a peace officer.\n\nThe \"Commissioner's Introduction\" to the Standards of Professional Conduct reads in part as follows: As public servants, we are accountable to our Minister and to Parliament, and, through them, to the Canadian people as a whole. Our behaviour must, at all times, show that we are worthy of their trust and confidence to carry out the responsibilities of our agency. As employees in the field of corrections, we have a special obligation to make sure that everything we do in our work - whether it is administrative or involves direct contact with offenders - ultimately contributes to the protection of society. This is a vital obligation that is both demanding and exciting. It calls upon each of us to meet high standards of honesty and integrity, and to approach our work in a spirit of openness, compassion and co-operation. These are indeed the hallmarks of professionalism.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-3", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 8–9", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The CSC has published the Code of Discipline (Exhibit G-17) containing a number of specific rules, including \"Standard Two Conduct and Appearance,\" which reads in part as follows: Infractions An employee has committed an infraction, if he or she: · acts, while on or off duty, in a manner likely to discredit the Service; · commits an indictable offence or an offence punishable on summary conviction under any statute of Canada or of any province or territory, which may bring discredit to the Service or affect his or her continued performance with the Service; · fails to advise his or her supervisor, before resuming his or her duties, of being charged with a criminal or other statutory offence;\n\nThe respondent called Glen Brown, who is the Warden at Matsqui Institution, as its only witness. From the cross-examination of Mr. Brown, including a review of the documents entered as exhibits in his cross-examination, it appears that Mr. Basra has met the performance objectives set for him by the CSC for various performance periods from November 1, 1999, to September 30, 2005 (Exhibits G-6, G-7, G-8, G-9, G-10 and G-11). He received from Mr. Brown (Exhibit G-12) and the Deputy Commissioner (Exhibit G-13) commendations for his role in preventing an escape attempt in September 2001. Mr. Basra has a good attendance record at work (Exhibit G-2). The respondent does not dispute that Mr. Basra is a good employee.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-4", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 10", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown received a letter from P.A. Insley, Information and Privacy Coordinator/Crown Counsel, Criminal Justice Branch, British Columbia Ministry of Attorney General dated March 24, 2006 (Exhibit E-7). The letter related some circumstances and enclosed a copy of information sworn on March 17, 2006, alleging a sexual assault by Mr. Basra against a female complainant on September 10, 2004, in Surrey, British Columbia, contrary to section 271 of the Criminal Code. The letter contained the following synopsis of the allegations: According to the Police report, Mr. Basra first had contact with the complainant through a chat line. They eventually met for an evening of drinking and clubbing. On the second meeting the couple were at Mr. Basra's house having a few drinks before going out for dinner. After a few sips of the third drink which Mr. Basra made for her, the complainant began to fade, feeling unfocused and hazy. She awoke the next morning naked on Mr. Basra's bed. She was unable to remember most of the previous evening after the point of sipping the third drink. Reportedly, Mr. Basra gave the complainant a false name; however, the police were able to locate him from the complainant's cell phone records. When questioned by the police, Mr. Basra denied having had sex with the complaint or even knowing her and refused to give a DNA sample. A DNA warrant was obtained and Mr. Basra's DNA was found to match an exhibit taken from the complainant. A warrant has been issued for Mr. Basra's arrest. You may wish to contact the Surrey Provincial Court Registry … if further information is required concerning details as to the progress of this case. This information is provided to you pursuant to our policy; you may wish to share this information with Mr.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-5", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 10–12", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Basra, to allow him to respond in the appropriate forum.\n\nThe charge relates to off-duty criminal conduct that is alleged to have occurred 18 months before the information was sworn. The complainant is not an employee at Matsqui Institution. There is no indication that Mr. Basra has been involved in any problem in the workplace or outside of the workplace since the alleged criminal conduct arose.\n\nThe letter from the Crown counsel is the only written documentation that the CSC ever obtained during its investigation. The CSC did not obtain any information concerning the terms of Mr. Basra's form of release or any conditions of his judicial interim release. I do not know, for example, whether Mr. Basra is subject to any firearms restrictions.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-6", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 13", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the time of the receipt of the letter from the Crown counsel, Mr. Brown was away from Matsqui Institution and Randie Scott was acting as warden in his absence. At a meeting on April 3, 2006, Mr. Scott suspended Mr. Basra indefinitely without pay by letter dated April 3, 2006 (Exhibit E-6). It is important to consider the text of the suspension, as the letter makes it clear that the CSC was convening a disciplinary investigation and that Mr. Basra would be contacted by the investigating manager in due course: This is to advise that you are hereby suspended indefinitely without pay effective immediately, pending the completion of a disciplinary investigation, which has been convened to establish the facts surrounding your involvement in the allegation that you have contravened the Correctional Service of Canada's Standard of Professional Conduct. Information received from the Crown Counsel, Ministry of Attorney General this date advises you have been charged with sexual assault under Section 271 of the Criminal Code of Canada. During this period of suspension you are not to enter CSC premises without the permission of the Warden or his representative. You will be contacted by the investigating manager in due course.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-7", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 14–17", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In an April 3, 2006, email (Exhibit G-3) from Mr. Scott to Donna Mynott, a Human Resources officer at Matsqui Institution, Mr. Scott explained that he went over the gist of the letter with Mr. Basra at the April 3 meeting. During the course of the meeting Mr. Basra volunteered that the matter related to an allegation from 2004, that he had fully cooperated in the original matter, that he had not heard anything for the last year and a half and that he thought that the matter was over. Mr. Scott advised him that a formal investigation into Mr. Basra's actions would be convened. Mr. Scott advised Mr. Basra to call him if he had any questions.\n\nMr. Scott was not called as a witness by the respondent. Given the text of the letter of suspension and his email of April 3, 2006, he appears to have suspended Mr. Basra without speaking to him first to ascertain the facts surrounding the alleged offence, without reviewing Mr. Basra's history with the CSC and without speaking to any of Mr. Basra's supervisors or co-workers to assist in a risk assessment.\n\nOn April 24, 2006, Mr. Scott directed Jason Strijack, Acting Associate Unit Director, PI/RTC, and Jim Farrell, Security Investigative Officer, Mountain Institution, to commence a disciplinary investigation surrounding Mr. Basra's involvement in two allegations (Exhibit E-8):\n\nA report of the investigation was due by May 31, 2006. Neither investigator has yet prepared a written report in connection with the disciplinary investigation. Mr. Brown was absent from Matsqui Institution at the time the order was given to start the disciplinary investigation.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-8", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 18–20", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Basra was notified by letter dated April 24, 2006 (Exhibit E-9), of the appointment of the investigators and the allegations for investigation under the \"Code of Professional Conduct.\" Mr. Basra was notified of the names of the investigators, but was not provided with their contact information. The letter also stated that he would be contacted in due course to arrange an interview. He was also advised of his right to bring a representative to the interview.\n\nNeither Mr. Strijack nor Mr. Farrell ever talked directly to Mr. Basra about the allegations, sent a letter to Mr. Basra requesting his presence for an interview or notified him of a date set for an interview. The investigators made no attempt to interview Mr. Basra. The best that can be said of the investigation was that Mr. Strijack and Mr. Farrell attended at the courthouse in Surrey from time to time to monitor the criminal proceedings against Mr. Basra and made phone calls to the Royal Canadian Mounted Police (\"the RCMP\").\n\nOn April 24, 2006, Mr. Scott reviewed the suspension without pay (Exhibit E-11). He determined that the suspension should continue.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-9", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 21", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Basra's lawyer, David B. Clements, wrote to Mr. Brown on April 27, 2006 (Exhibit E-10). The letter indicated that neither Mr. Basra nor Mr. Clements was aware of the sexual assault charge until after Mr. Basra received the letter of suspension. In his letter, Mr. Clements provided some information concerning the nature of the proceedings: We were retained by Mr. Basra soon after he was interviewed by the Surrey RCMP on November 18, 2004 in relation to an allegation of sexual assault. After giving a statement to the RMCP in November 2004, Mr. Basra was released on a Promise to Appear with a return date of January 10, 2005 in Surrey Provincial Court. We attended for Mr. Basra on that date and we were advised by an employee of the Surrey Provincial Crown Counsel that no report had been received from the RCMP and therefore no charge had been laid. We wrote to the Crown on that same date asking to be advised if and when a report was received from the RCMP (see letter enclosed for ease of reference). Thereafter, on a monthly basis, we contacted the Crown to ask if any report had been received and if any charges were contemplated; the last inquiry being made in early March 2006. On each and every occasion we were informed that no report had been received and therefore no charge had been laid. We were contacted by Mr. Basra in the 3rd week of March 2006 and he advised us that he had received a letter from his employer indicating that he was to be immediately suspended because the Crown had advised that he had been charged with a criminal offence. We, however, had never been notified by the Crown despite our repeated requests. We contacted the Crown and found that Mr. Basra had been charged with sexual assault on March 17, 2006 with an offence date of September 10, 2004.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-10", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 21–25", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Neither we nor Mr. Basra were aware of this charge until he received his letter of suspension.\n\nIt is clear from the evidence that even though Mr. Basra was aware that he was being investigated by the RMCP in connection with the charge, Mr. Scott was made aware of the sworn information before Mr. Basra. On May 4, 2006, Mr. Scott wrote an email to the investigators notifying them of the receipt of the letter from Mr. Clements, and in particular referring to an apparent lack of action on the part of the Crown counsel since the date of the offence. He also wrote that neither Mr. Basra nor Mr. Clements was aware of the charge prior to receiving the suspension letter.\n\nMr. Brown testified that the contents of Mr. Clements' letter did not substantively impact the decision to continue Mr. Basra's suspension. He said that the more material issues of concern to the CSC were the nature of the criminal allegation and Mr. Basra's level of cooperation with the police during the investigation. Mr. Brown said that a less relevant concern was whether Mr. Basra notified the CSC of the allegation.\n\nFrom the chain of emails filed along with the May 4, 2006, email (Exhibit E-14) it is clear that the investigators had collected no new information and merely attended court.\n\nIt appears from an email filed as Exhibit E-15 that by July 7, 2006, the investigators had not contacted Mr. Basra directly and had not obtained any new information from the RCMP. The investigators attended court on July 6, 2006, and reported that Mr. Basra was to be arraigned on July 28, 2006.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-11", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 26–28", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On July 27, 2006, the day before the scheduled arraignment hearing, Mr. Brown wrote to Mr. Basra to inform him of his decision to continue the suspension without pay. The only new information at that time was the fact that an arraignment hearing was to take place the next day.\n\nThe CSC appears to have had some concerns with the investigation, as set out in the emails filed as Exhibit E-21. On July 28, 2006, Bobbi Sandhu, Regional Administrator for Security, wrote to Inspector J.M. McAllister of the RCMP requesting that the following information be provided: 1) When was Correctional Officer BASRA made aware that he was being investigated? 2) When was Correctional Officer BASRA notified of potential charges? 3) When was Correctional Officer BASRA formally charged with the offence? A police report will assist in furthering the investigation into this matter. Please forward the information to the undersigned who will then forward [sic] to the assigned disciplinary team.\n\nThere was no proof tendered in this proceeding that the CSC obtained an answer from the RCMP. From what was tendered before me, it is clear that the CSC never had in its possession a police report or any of the Crown disclosure package provided in connection with the criminal charge. There is no clear explanation of the CSC's failure to collect further information. If the investigators had been called as witnesses, perhaps there would have been clearer information at the hearing as to the steps that they took to ascertain the facts.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-12", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 29–32", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On September 6, 2006, Mr. Brown wrote a letter to Mr. Basra maintaining his suspension (Exhibit E-22). On September 11, 2006, Mr. Farrell reported that he attended court, that Mr. Basra did not attend but had an agent present and that the Crown counsel had not provided all of the disclosure to the defence.\n\nOn September 27, 2006, Vince Leblanc, Acting Warden, Matsqui Institution, wrote to Mr. Basra maintaining his suspension (Exhibit E-26). The only new information at that time was that Mr. Farrell and Mr. Strijack attended court on September 19, 2006, and that the court was going to set a date for a preliminary inquiry. Exhibit E-27 references a response from the RCMP; however, no such response was filed as an exhibit before me.\n\nOn October 5, 2006, Mr. Basra was notified in a separate memorandum from Mr. Leblanc that a review was being conducted of Mr. Basra's reliability status in light of the sexual assault charge (Exhibit G-20). On October 16, 2006, Mr. Brown wrote a letter to Mr. Basra maintaining his suspension (Exhibit E-25).\n\nIn 2006, Mr. Basra made a complaint concerning the breach of his privacy rights by Mr. Brown. An apology has been offered to Mr. Basra from the CSC for the breach of his privacy rights.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-13", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 33–36", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The Treasury Board Secretariat has published \"Guidelines for Discipline\" (Exhibit G-26) for the core public administration. That guide provides that as part of an investigation, the employee has the right to be confronted with the alleged wrongdoing and to have an opportunity to respond as part of a disciplinary investigation. Under those guidelines employees can be suspended indefinitely: ▪ pending investigation of certain suspected misconduct when the presence of the employee at work cannot be tolerated or could undermine or impede the investigation (see Annex 2 for indefinite suspension criteria as enunciated in Larson PSSRB file 2002 PSSRB 9); or\n\n\"A Guide to Staff Discipline and Non Disciplinary Demotion or Termination of Employment for Cause\" (Exhibit G-25) calls for timely discipline decisions.\n\nMr. Brown has a 28-year history in federal corrections. He was Associate Warden at Matsqui Institution from 1996 to 2005. Mr. Brown became Warden at Matsqui Institution in June 2005. He has worked at Kent Institution as a living unit officer and as a living unit development officer. He has worked as a community parole officer and as a project manager at regional and national CSC headquarters. He has also worked as associate warden, and acting deputy warden at Matsqui Institution.\n\nMr. Brown said that the population at Matsqui Institution contains inmates with entrenched criminal values and includes very few sex offenders. Sex offenders are not well regarded by the inmates at Matsqui Institution.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-14", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 37–40", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown testified that there are approximately 150 correctional officers at Matsqui Institution and 80 of them are at the CX-01 group and level. The duties of a CX-01 generally include providing static security, staffing the perimeter and control posts, and controlling movement inside Matsqui Institution. In cross-examination, Mr. Brown admitted that most of the CX-01 posts and duties are weighted heavily towards static security. The respondent filed work descriptions for the CX-01 positions (Exhibits E-1 and E-2). Mr. Brown said that the CX-01s are expected to model behaviour that is expected from inmates. All correctional officers are there to \"lend an ear\" if an inmate comes forward with problems, but Mr. Brown indicated that the \"lion's share\" of this work falls to the CX-02s. The CX-01s work in the \"bubble\" within Matsqui Institution. The only armed posts within this medium-security institution are the perimeter posts.\n\nApproximately one-third Matsqui Institution staff is female; many of those employees are in positions where the workday ends at 17:00. Some female correctional officers work evenings.\n\nMr. Brown admitted that he does not have any detailed knowledge of Mr. Basra or his service with the CSC. Mr. Brown reviewed documents and talked to Donna Reynen, Assistant Warden at Matsqui Institution, in preparation for this hearing. He described Mr. Basra as a good employee.\n\nMr. Brown explained that, as a correctional officer, a CX-01 is a peace officer while engaged in the execution of duties within Matsqui Institution and has the power to arrest an inmate and use force. By policy, this power is restricted and the correctional officer must seek approval in advance from a superior.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-15", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 41–44", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown was not involved in any of the early decisions about Mr. Basra, as he was not at Matsqui Institution. Mr. Scott was Acting Warden in Mr. Brown's absence. Mr. Scott has been away on sick leave since September 2006 and did not give evidence in this case. When Mr. Brown returned to Matsqui Institution, he was briefed on major developments by Mr. Scott, which included Mr. Basra's indefinite suspension. Mr. Brown believes that Mr. Scott consulted with Ms. Mynott, who consulted in turn with Beth Tyler, a regional human resources officer.\n\nMr. Brown said that Mr. Scott told him that prior to suspending Mr. Basra, he had discussions with Staff Relations and the Deputy Warden about \"the issues at hand.\" Mr. Brown said that he thought that Mr. Scott was mostly concerned about the nature of the offence, Mr. Basra's interaction with the police, the serious risks that the matter presented and the need to remove Mr. Basra from the workplace. Mr. Brown said that Mr. Scott felt quite determined about that.\n\nMr. Brown said that Mr. Scott used as criteria risks in the workplace, the reputation of the CSC through his discussion with Staff Relations and, in particular, the criteria known as the \"Larson criteria.\"\n\nI note that Mr. Brown can only relate what Mr. Scott told him and the correspondence that Mr. Brown saw. If the respondent wished to establish what Mr. Scott did and considered, the respondent should have called Mr. Scott. It is clear that Mr. Brown met with Mr. Scott and Ms. Reynen and agreed with Mr. Scott's decision.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-16", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 45–47", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Through Mr. Brown, the respondent filed a chain of emails that started on May 4, 2006, from Mr. Scott and that ended with one from Meena Chima on June 7, 2004 (Exhibit E-14). Mr. Brown was not copied on all of the emails in the chain. The chain contained emails from Mr. Scott to the investigators, from Ms. Mynott to Mr. Scott and Mr. Brown and copied to Ms. Tyler, from Mr. Brown to the investigators, from Mr. Strijack to Ms. Mynott, from Ms. Mynott to Mr. Strijack, from Ms. Mynott to Ms. Chima and from Ms. Chima to Ms. Mynott. Except for Mr. Brown, none of these people were called to give evidence. The email chain adds no evidence to this case and makes it clear that, as of June 7, 2006, the CSC had very little information with which to make a risk assessment.\n\nIn Exhibit E-14 and in an email from Mr. Strijack dated June 7, 2006, and copied to Mr. Brown, Mr. Strijack wrote in part as follows: In terms of a Risk Assessment regarding potential work re-location, pay action and such, I would recommend a meeting to discuss all of the factors. I would like to get a little more feedback from the RCMP before that meeting, however.\n\nMr. Brown does not remember exactly when he became aware of Larson v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 9, which sets the criteria used to assess a continuing suspension. It appears that he became aware of these criteria at least by June 16, 2006.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-17", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 48–50", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In June 2006, Mr. Brown said that he conducted a more formal review of Mr. Basra's status as a suspended employee. This resulted in a memorandum to Mr. Basra's disciplinary file (Exhibit E-13). Mr. Brown concluded that Mr. Basra's presence inside Matsqui Institution or any other CSC facility represented a reasonably serious risk to the CSC, damaged the reputation of the CSC and rendered Mr. Basra unable to perform his duties.\n\nIn particular, Mr. Brown said thatthe police hadalready investigated the matter and acquired the evidence to lay the charge. Crown counsel had approved charges. Early information indicated that Mr. Basra did not fully cooperate with the police investigation and that he misled them by giving a false name. Mr. Basra had been directly linked by means of DNA evidence. Further, he did not advise the CSC of the charge, contrary to what he was required to do. While a CSC Board of Investigation had been convened and had not yet concluded, the information received at that point disturbed Mr. Brown as to the CSC's reputation, and suggested that Mr. Basra was unsuitable for discharging care to other persons - particularly persons over whom he could have some power.\n\nMr. Brown said that he considered whether continued employment might have been achieved through intensive supervision or through a transfer to another location. Mr. Brown's opinion was that Mr. Basra's continued employment was neither reasonable nor possible at that time.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-18", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 51–53", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "There is no direct evidence before me of a duty of Mr. Basra to cooperate with the police or of his failure to do so. It appears that Mr. Brown is confused as to the information from the Crown counsel. The letter from the Crown counsel disclosed that Mr. Basra did not give his correct name to the complainant, but there is no evidence of that he misled the police. Further, it is apparent that Mr. Brown did not consider the information provided, either by Mr. Basra when the suspension was imposed or in Mr. Clements' subsequent letter, that Mr. Basra was unaware that a charge had been laid. Further, there is no factual support for the opinion that Mr. Basra is unsuitable for discharging care to other persons. If the alleged offence is true, then the circumstances involve one female, and there are no female inmates at Matsqui Institution.\n\nIn a July 7, 2006 email, Ms. Mynott advised Mr. Brown (Exhibit E-15) that \". . . [t]his would be a good time to review Mr. Basra's suspension without pay, considering the recent information provided by the investigators. . . . \" The only new information provided by the investigators as of July 7, 2006, was that they had attended court and had unsuccessfully requested information from the RCMP and that Mr. Basra had not contacted them. The investigators recommended that the suspension be maintained.\n\nAt the hearing, Mr. Brown indicated that he would reassess the risk of Mr. Basra working at Matsqui Institution every two or three weeks based on any new information received. He also confirmed that he had not made a disciplinary decision.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-19", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 54", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown described his consideration of the Larson criteria. He said that the CSC looked at the substance of the allegation, a sexual assault in November 2004 and a protracted investigation resulting in the Crown counsel approving and laying a charge 18 months later. Mr. Brown said that another substantive factor was that Mr. Basra did not cooperate with the police. It appears that for a portion of the investigation, Mr. Basra provided a false name and that certain facts were refuted or denied in the face of the physical evidence against him. Mr. Brown was concerned that the police were concerned about a lack of cooperation and forthrightness. Although Mr. Basra was detained as a result of the investigation in 2004, and he retained a lawyer, he did not inform anyone in authority at the CSC about his involvement. Mr. Brown said that in a strict sense, employees may only need to advise the CSC when charges are laid, as officers in the criminal justice system are held to a higher level of accountability and are bound by a higher standard of forthrightness to disclose those kinds of developments. In other cases, officers have come forward with information allowing the CSC to make a comprehensive and balanced risk assessment.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-20", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 55–56", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown said that there were a number of risks in ending Mr. Basra's suspension, including risks to the CSC, its operations and its integrity. Mr. Brown said that the charge laid against Mr. Basra had the potential to impact CSC relationships and that this could create a safety issue for Mr. Basra. Mr. Brown said that it could be problematic for Mr. Basra to work constructively with inmates, fulfill his duties of open and honest communication and be considered a role model. Mr. Brown said that the charge laid against Mr. Basra could impact staff members, since the allegations have a predatory and deceptive aspect and 30% of Matsqui Institution staff are women. Men and women work alone on posts; correctional officers have to work closely and need to rely on each other's character.\n\nMr. Brown said that justice system clientele have a significant history of victimization. Female visitors often come from backgrounds similar to inmates and have often been subjected to sexual assaults in the past, and they should be able to enter through the front gate knowing that they are safe.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-21", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 57–59", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown said that the CSC was concerned about its integrity. The purpose of the CSC is to protect the public; the CSC performs that task mainly through risk management. Risk assessments are not scientific, but involve looking at the facts and making informed decisions. Mr. Brown said that the legislation allows for the exchange of information among law enforcement agencies and that the relationship between those agencies is sensitive. Information exchanged may depend on the confidence one agency has with another. An agency such as the RCMP may view correctional officers such as Mr. Basra as being evasive and deceptive, which may in turn affect its perception of the CSC's ability to do business with it.\n\nMr. Brown said that the CSC's reputation is affected when correctional officers act in an exploitative manner and are not prepared to fully explain or account for their behaviour. The CSC suffers real damage from such behaviour.\n\nMr. Brown said that he considered whether Mr. Basra could work elsewhere at the CSC. The CSC has 1600 or more employees working in institutional offices, community offices and administrative offices in the Pacific Region. The risks of transferring Mr. Basra somewhere else in the Pacific Region were still unacceptable. Matsqui Institution is co-located with a women's facility and a regional treatment centre. Minimum-security female inmates are given assignments outside the fence and are able to walk around. It seemed inappropriate to assign Mr. Basra to work outside the fence. Even if Mr. Basra were to be placed into an administrative setting he would still be required to deal with inmates and other persons who were victimized or who are recovering from victimization; Matsqui Institution should be a safe place for them.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-22", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 60–64", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown said that in virtually every operation or task within the CSC, people have access to information. Mr. Brown said that this is a key part of the business and that having trust in the correctional officers' integrity is important. It is important to safeguard electronic access to information.\n\nMr. Brown said that when he looked at how the case developed, and even though Mr. Basra had been a fine employee up to that point, he was concerned that the CSC had not been informed earlier of the November 2004 incident, that police communications were problematic and that there was a very serious trust issue.\n\nMr. Brown said that when he looked at the general context in which the CSC operates, Mr. Basra's continued employment was not acceptable.\n\nIn cross-examination, Mr. Brown admitted that he was not aware who Mr. Basra's supervisor was or of the names of the crew with whom Mr. Basra works. Mr. Brown is aware that Mr. Basra had a role on the executive of his bargaining agent at one point. After reviewing documents put to him in cross-examination, Mr. Brown admitted that Mr. Basra is a good employee who has a better than average attendance at work. The respondent admitted that Mr. Basra does not have a disciplinary record.\n\nMr. Brown admitted that the only documents received from the Crown counsel and the RCMP where those that he had initially received. He indicated that it is often difficult to decide whether to release information due to privacy legislation and protocols between agencies. There was, however, no explanation given explaining the particular problems faced by the investigators. There was apparently some informal contact between a police officer and the investigators. Mr. Brown also conceded that it is within one's legal rights to refuse to provide a DNA sample.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-23", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 65–68", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown does not recall signing any document extending the time for the disciplinary investigation. Mr. Brown indicated that the usual process during an investigation is to request that the employee attend an interview and that a time, date and place are set for it. It is also clear that Mr. Brown never considered Mr. Basra's performance in the context of his decision to continue the suspension.\n\nAs Mr. Scott was not called as a witness, and there are no records confirming that he reviewed Mr. Basra's record, I find as a fact that Mr. Scott did not consider Mr. Basra's record while deciding to impose the suspension. Mr. Brown admitted that while CX-01s are peace officers, by policy they are limited in the exercise of their powers of arrest and use of force. Generally, there has to be approval from a supervisor before a CX-01 can exercise the power of arrest.\n\nMr. Brown conceded that a CX-01 would not necessarily have access to inmate information exchanged between the RCMP and the Internal Prevention and Security Office (\"the IPSO\"). The personal files of inmates are kept in a locked file room and a CX-01 would not have access to it. As a CX-01, Mr. Basra would not have access to the electronic Offender Management System (\"the OMS\"). Very few CX-01s at Matsqui Institution have access to the OMS. Access can be removed by Mr. Brown. The protection of inmates' information is taken very seriously.\n\nGenerally, security information observed by a CX-01 is reported to the Correctional Supervisor (CX-02), who then reports the information to the IPSO.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-24", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 69–72", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "It appears from Mr. Brown's evidence on cross-examination that there would be no opportunity for Mr. Basra, while on mobile patrol, to have unsupervised access to female inmates from the Fraser Valley Institution, which is located near Matsqui Institution. There is infrequent access between drivers of other vehicles and CX-01s on mobile patrol. If Mr. Basra worked a graveyard shift, there would be no opportunity for him to have contact with female visitors or staff. Mr. Basra has frequently worked an armed post, but there has never been an incident involving inappropriate use of a firearm. Mr. Brown admitted that there was no risk of Mr. Basra assaulting a staff member with a firearm.\n\nAll correctional officers carry a radio or personal alarm device and may have access to a fixed-point alarm. Inmates are confined in their cells between 23:00 and 07:00. During those hours inmates are allowed out a maximum of two at a time on the living units to use washrooms. Between 06:00 and 07:00, a small number of inmates are let out as they are scheduled to help in the kitchen.\n\nDuring Mr. Brown's cross-examination, a chronology of events was filed as Exhibit G-6. Mr. Brown did not prepare that document and only saw it a week before the hearing. The respondent did not call the person who prepared the document and it does not appear to be complete, so I place no reliance on it.\n\nAt present, there is a correctional officer working at Matsqui Institution in an armed perimeter post who is being investigated for sexual assault but who has not yet been charged. As Mr. Brown put it, there is no evidentiary test of the Crown counsel approving the charge. I note that the test used by the Crown counsel in approving charges is not before me in evidence.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-25", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 73–76", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Brown has a concern that a date-rape drug was used by Mr. Basra. However, Mr. Brown admits that there is no laboratory proof of this, and no allegation of a date-rape drug was made in the Crown counsel's letter to him.\n\nMr. Brown admitted in cross-examination that he is aware of no publicity or media attention related to this case.\n\nMr. Basra did not give evidence but called Bill Virk, Sherry Enns and Gaelen Joe as witnesses. Mr. Virk is a CX-01 who has acted as a CX-02 at Matsqui Institution. He has been employed there since 1999. He testified that there are a number of posts worked by CX-01s at Matsqui Institution that involve limited interaction with members of the public or the RCMP. He has worked all of those posts and has first-hand experience.\n\nOne of those posts is a motorized patrol. The duties are set out in \"Security Post Instruction S.P.I. 831.17\" (Exhibit G-24). There are two motorized patrols, and the post operates 24 hours per day, 7 days per week. The CX-01 staffing the post is armed. The main duties are to observe and provide security for the perimeter of Matsqui Institution by driving around outside the perimeter. The main purpose is to stop inmates from escaping. There is no contact with inmates, unless they are escaping. The CX-01 working at this post does not work in the rehabilitation of inmates. The motorized patrol has no contact with female inmates at the nearby Fraser Valley Institution. It is possible for Central Control to monitor the activities of the motorized patrol. I was asked by the parties not to reveal the details of security at Matsqui Institution, and I have not provided that information in this decision.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-26", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 77–78", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Virk has also worked the Central Control Post. The duties are set out in \"Security Post Instruction S.P.I. 831.06\" (Exhibit G-22). This is also known as the count desk. The CX-01 operating this post is under the direction of a CX-02. The main duties are opening and closing unit barriers, opening cells doors and obtaining and receiving identification cards that permit an inmate to move to the Visits and Correspondence Centre. There is minimal contact with inmates. There is no contact with members of the public or inmate visitors. The main concern of the CX-01 in this position is monitoring an inmate's location. There is limited opportunity to influence or interact with inmates.\n\nMr. Virk has also worked the Living Unit Control Post. The duties for this position are set out in \"Security Post Instruction S.P.I. 831.08\" (Exhibit G-23). This generally involves work in the \"bubble\" and there is a limited amount of interaction with inmates. A typical type of interaction is \"Hey boss, open the door, door 27.\" The CX-01 opens the doors and barriers on each of the ranges. The interaction is limited to responding to an inmate's request to open a door. The CX-01 also provides visual security from the \"bubble\" for the CX-02s who do range walks. The CX-01 has very limited interaction with inmates because there is an inmate \"code\" and they do not willingly share information or interact with correctional officers. From 23:00 to 07:00, the role is limited to letting two inmates at a time out of those cells that are not equipped with toilets. The CX-01 does rounds when the inmates are locked in their cells, five times per day. Contact with inmates is limited.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-27", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 79–81", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "No CX-01 has unrestricted access to inmate files located in the IPSO. A correctional officer at the CX-01 group and level does not have an inmate caseload. A CX-01 does not have access to the RADAR system, which requires an account code, an access code and a security code. Generally, it is only IPSO officers who have access to it.\n\nMr. Virk has also worked as a living unit coordinator. The duties for this position are set out in \"Security Post Instruction S.P.I. 831.09\" (Exhibit G-24). This is a midnight-shift position. The main job duties are working from the \"bubble\" and controlling access for the CX-01s who work in the range doing two counts, which involves walking around the range and counting inmates in cells. The coordinator has no contact with the inmates.\n\nMr. Virk testified that CX-01s who work the graveyard shift in the Special Containment Unit have no contact with inmates. The CX-01 works from the \"bubble\" and provides visual security for the CX-02, who interacts with the inmates by ensuring that they have showers and get exercise in the yard. There is no contact with the inmates and no contact with the inmate visitors.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-28", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 82–83", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Virk has known Mr. Basra since they both began working at the CSC, which was at about the same time. He has worked on the same crew as Mr. Basra for three or four years. Mr. Virk says that Mr. Basra performs all aspects of the job, and he has full confidence in Mr. Basra. He described Mr. Basra as an average guy who does his work with no complaints from anybody. He treats the female staff with respect. To Mr. Virk's knowledge, Mr. Basra has had no inappropriate dealings with any staff or visitors. Mr. Virk testified that many of the CX-01s eat at their post and do not go to the staff lunchroom to take their breaks, and therefore there is often limited exposure to persons other than correctional officers during a shift. He confirmed that CX-01s can be moved to different duties while on a shift. The tenure of this evidence is that a CX-01 has limited exposure to females, other than other correctional officers during a shift.\n\nMs. Enns, a CX-02, testified on behalf of Mr. Basra. As well as working at Matsqui Institution she is Local President of the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, Mr. Basra's bargaining agent. She testified that in her experience when the CSC wishes to talk to an employee about a disciplinary matter, it sends the employee a letter and also sends a copy to the bargaining agent. The CSC usually gives 48 hours' notice, and sets a time, date and place for a meeting. Other than grievance meetings, Ms. Enns is not aware of any investigation or disciplinary meetings called by the CSC concerning Mr. Basra in which the bargaining agent was asked to participate; she is only aware of grievance meetings.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-29", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 84–87", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Ms. Enns has worked with Mr. Basra and is familiar with his work. She characterizes him as an excellent officer. She is aware of the allegation against him and has never felt threatened by him.\n\nMr. Basra also called Mr. Joe, a CX-02, as a witness. Mr. Joe was the grievance officer who handled Mr. Basra's grievance. He was present at a meeting where Mr. Basra's bargaining agent representative put forward a number of options for Mr. Basra's placement, including working the graveyard shift, working at the regional supply depot or transferring to another institution.\n\nIt appears that it will be many months before the criminal charge will be finally dealt with by the Courts. By the time of the adjudication hearing, seven months had passed, and there was no evidence that a date for a preliminary inquiry had been set.\n\nThe respondent said that suspending Mr. Basra indefinitely was an appropriate administrative decision. The respondent said that in considering the peculiar facts of the case, an indefinite suspension is justified. The respondent relied on the criteria set out in Larson. In Larson, the adjudicator relied upon the approach in Ontario Jockey Club v. Mutuel Employees' Association, Service Employees' International Union, Local 528 (1977), 17 L.A.C (2d) 176, and Hamilton Regional Cancer Centre v. Canadian Union of Public Employees, Local 3566 (2000), 91 L.A.C. (4th) 333. In Larson, the adjudicator quoted and relied on the Ontario Jockey Club test.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-30", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 88–89", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The CSC assessed the facts and determined that Mr. Basra's presence presented a reasonably serious and immediate risk to its legitimate concerns. The CSC is part of the criminal justice system. A sexual assault charge is serious and these allegations include predatory and coercive conduct. This could have a reasonable impact on the CSC's integrity. Mr. Basra is a peace officer and has to be held to a higher standard. Given that there was a police investigation, the respondent has a lesser burden. Many attempts were made to contact Mr. Basra, and he did not respond. The CSC continued to assess the risk.\n\nMr. Basra said that he was suspended in April 2006 and that the respondent will not reinstate him without a ruling from an adjudicator. The CSC has not respected the test set out in Larson. Mr Basra has said in particular that his suspension is clearly disciplinary, since the CSC violated the third standard in the Larson test by failing to investigate the criminal charge to the best of its abilities in a genuine attempt to assess the risk of his continued employment. There is a balance to be struck between an employee's right to earn a living and the respondent's right to a safe and secure workplace. The assessment of risk has to be based on a \"real hardship to the employer.\" It is a test of \"quality\" and not \"quantity.\" The fact that the CSC has written a number of letters is not sufficient.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-31", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 90–92", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The CSC quickly concluded that Mr. Basra was a risk without talking to his co-workers or supervisors. The incident was well in the past and there was no indication of a risk being present. There were no complaints from either inmates or staff. No issue was raised by the RCMP about Mr. Basra remaining in the workplace. The CSC simply overreacted to the nature of the charge. There has been no media publicity impacting Matsqui Institution's reputation. The simple fact of being charged with an off-duty criminal offence is not sufficient to justify an indefinite suspension. Mr. Basra has worked with female employees and with firearms for years without any problems. The respondent has not put forward any facts to suggest that Mr. Basra is a risk to anyone in the workplace or that his presence would interrupt or interfere with the operations at Matsqui Institution. There is no immediate and certain risk based on real and tangible evidence.\n\nMr. Basra has put forward a number of placement options; it is clear that the CSC has not investigated them to the best of its ability. Mr. Basra has never been required to attend an interview, and the CSC never obtained his side of the story. The CSC's own policy is that investigations should be conducted on a timely basis and that the investigator should get the employee's side of the story. Mr. Basra says that 30 days should have been sufficient for the CSC to conduct its investigation based on its own policy.\n\nThe CSC had Mr. Basra's information for some time when the charge arose and did not consider the evidence. This clearly is a disciplinary matter. The CSC did not treat Mr. Basra fairly and in particular did not investigate in a timely manner and did not obtain his side of the story.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-32", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 93–95", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Basra relied on Blackburn v. Treasury Board (Solicitor General Canada - Correctional Service), 2003 PSSRB 49, for the proposition that an indefinite suspension pending an investigation requires that the investigation be completed in a timely manner. The CSC is required to investigate and obtain the employee's version of events, as in Clarendon Foundation (Cheshire Homes) Inc. v. Ontario Public Service Employees Union, Local 593 (1995), 50 L.A.C. (4th) 17, and Alberta v. Alberta Union of Provincial Employees (1995), 51 L.A.C. (4th) 248. Mr. Basra asks for interest under paragraph 226(1)(i) of the Act. He asks that I remain seized over the manner of the terms of his reintegration at work and of the implementation of this decision.\n\nIn reply the respondent argued that Mr. Basra has been charged with a serious indictable offence. The CSC concluded that there was a serious risk given the nature of the charge, and there is no new information that dissipates the risk. Mr. Brown's ability to investigate the offence is limited as the matter is before the courts. The investigators genuinely attempted to follow up on the proceedings. Mr. Basra must be aware that the CSC is happy to meet with him, but he has refused to do so.\n\nThe CSC will continue to assess the risk, and the respondent has not yet imposed discipline. The indefinite suspension should be maintained.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-33", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 96–98", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Basra has filed his grievance under paragraph 209(1)(b) of the Act alleging that his indefinite suspension without pay is a disciplinary action. Section 209 of the Act provides 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 (b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;\n\nThis is a case that involves a protracted period while Mr. Basra's criminal case proceeds through the criminal court system. The respondent has argued that it has taken appropriate administrative action and says that its suspension decision is justified based on the unique facts in this case.\n\nThe respondent submitted that the suspension was an appropriate administrative measure. Although the respondent did not directly argue the point, in order for me to have jurisdiction over this grievance I must conclude that there is a disciplinary component to the decision. In this case, the respondent claims that it has yet to make a disciplinary decision concerning Mr. Basra.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-34", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 99–101", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I note that paragraph 209(1)(b) of the Act uses the words \"disciplinary action\" and not \"disciplinary decision.\" The word \"action\" is broader than \"decision\" and is a word capable of embracing the CSC's decision to appoint investigators and indefinitely suspend an employee as part of that investigation. The CSC has suspended Mr. Basra indefinitely based on an allegation of a serious wrongdoing that the CSC determined must be investigated. Clearly, the decision to suspend was part of a disciplinary process, although the CSC has not yet convened a disciplinary hearing or reached a final conclusion on discipline. The respondent's documents establish that an investigator was appointed to convene a disciplinary investigation (Exhibit E-8).\n\nAlso, an indefinite suspension prevents an employee from working. It is an interruption of the employee's right to work. In this case the disruption of work, as well as the loss of wages, are penalties; they are disciplinary actions that flow directly from the CSC's decision to convene an investigation and suspend Mr. Basra without pay: Massip v. Canada (1985), 61 N.R. 114 (F.C.A.); Lavigne v. Treasury Board (Public Works), PSSRB File Nos. 166-02-16452 to 16454, 16623, 16624 and 16650 (19881014); and Côté v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-9811 to 9813 and 10178 (19831017).\n\nFor the above reasons, it is my view that there is jurisdiction to review this indefinite suspension under paragraph 209(1)(b) of the Act. I shall now address whether the CSC's decision to suspend Mr. Basra indefinitely without pay is justified in the circumstances.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-35", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 102–105", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Employees have a right to work. It is a right that should not be lightly interfered with, and it is up to the respondent to demonstrate that a continued suspension without pay is justified. The CSC has not terminated Mr. Basra but is preventing him from earning a living. Other than penalizing Mr. Basra, it is difficult to see what benefit would accrue from a suspension until a court resolves the issue of his guilt or innocence. By the date of the adjudication hearing, more that seven months had elapsed since Mr. Basra was charged with an offence. It is now more than two years since the date of the alleged sexual assault. There is no clear indication of when Mr. Basra's case will be finally resolved by the courts. The wheels of justice appear to have moved slowly.\n\nThe main issue before me is whether an indefinite suspension is justified based on the Larson and Ontario Jockey Club criteria. Those criteria are: 104 As a starting point, I note that the burden of proof rests with the respondent and not with Mr. Basra to establish the justification for the CSC's actions. The standard is the ordinary civil standard of the balance of probabilities.\n\nAs an adjudicator, it is not my function to weigh the strength of the Crown's case, or probability of conviction, in the criminal proceedings. Indeed, it is impossible for me to weigh the strength of the Crown's case, even if it was within my mandate, because the CSC appears to have obtained so little information. I am not certain how the CSC could have come to any reasonable risk decision based on the extremely limited material before it.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-36", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 106", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "From the evidence before me, Mr. Basra was not aware of the criminal charge until he was suspended by the CSC. In his evidence, Mr. Brown referred to \"a strict interpretation\" of the Code of Discipline and compared Mr. Basra's attitude to a fuller disclosure position adopted by some correctional officers facing criminal charges. In my view, there is only one possible interpretation of the Code of Discipline. In it, there is a duty to disclose charges; there is no duty to disclose the possibility that a charge might be laid. The duty on the correctional officer arises on being charged, and knowing that he is charged. If the CSC wished by policy to impose a duty to disclose allegations arising before charges are laid, a duty to disclose allegations could have been articulated in the Code of Discipline. The fact that other correctional officers, who were not called to give evidence and whose situations were not fully explained in the evidence, may have taken a different approach with the CSC is irrelevant to my task.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-37", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 107–108", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I take adjudicative notice that, under the Criminal Code, sexual assault is a hybrid offence that may be charged as a summary conviction or indictable offence (subsection 271(1)). There was a substantial, unexplained delay between the date that the offence is alleged to have occurred and the date that the Crown counsel approved the criminal charge. While this offence is charged as an indictable offence, I do not know whether that decision was made by Crown counsel simply to avoid the effect of the six-month limitation period for summary conviction offences (subsection 786(2) of the Criminal Code). There is no evidence before me that explains the Crown counsel's charging process or his decision to proceed by indictment. I am not prepared to infer, in the absence of information and in light of the 18-month pre-charge delay, that the reason for proceeding by indictment was that the seriousness of the offence merited this procedural approach.\n\nThis is a serious charge regardless of the Crown counsel's choice of charging procedure. Ultimately, that choice may have a substantial impact on any disciplinary decision of the CSC concerning Mr. Basra. A conviction for an indictable offence is a ground for discipline under the Code of Discipline. That issue is not before me, since Mr. Basra has not been convicted of any offence, and the CSC has not completed its disciplinary decision-making process.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-38", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 109–110", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The Crown counsel appears to have chosen to notify the CSC and to have a warrant issued rather than notify Mr. Clements, who was monitoring the case for Mr. Basra, to ensure a voluntary court appearance by Mr. Basra. Why the Crown counsel took this approach is not explained in the evidence before me. Based on the material before me, the respondent has no case against Mr. Basra on the point of whether he went to work without informing the CSC of the charge. The evidence establishes that the CSC learned of the charge before Mr. Basra did. Deception, lack of forthrightness and lack of honesty in telling the CSC of the offence were key factors for Mr. Brown in maintaining the suspension. There is absolutely no basis in the evidence supporting such conclusions. This is particularly so as there is no duty to disclose until a charge is laid. I also note that the CSC did not schedule an interview with Mr. Basra after it learned of the charge.\n\nWhen I reviewed the authorities provided to me by both parties, it was clear that the adjudicator or arbitrator in each of those cases had substantially more information than was provided to me, and the CSC had conducted a more thorough investigation than in the present case. In most of the cases, the adjudicator heard directly from the CSC's investigator.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-39", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 111–112", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I am not satisfied that the respondent has shown under the third and fifth Larson criteria that the CSC has done its best to ascertain the facts in order to make a risk assessment concerning Mr. Basra. While Mr. Scott appointed investigators in a timely way, I am concerned that the investigation did not yield sufficiently reliable information to make a risk assessment decision. The problem seems to be with the quality of the investigation undertaken by the CSC. It seems that in terms of investigating the disciplinary matter, the investigators did little more than attend court, request information from the RCMP, which never was received, and possibly ask Mr. Clements at court to tell Mr. Basra that the investigators wished to speak to him. I use the word \"possibly\" since the investigators were not called to give evidence as to what they did or did not do.\n\nI am concerned that the investigators made no attempt to directly contact Mr. Basra to obtain his side of the story. I am not prepared to speculate as to what he may or may not have said had the CSC attempted to contact him. I put no weight on Exhibit E-14, which contains speculation by Ms. Mynott in an email to Ms. Chima that: Sometimes in case [sic] such as these lawyers advise their clients not to discussing [sic] disciplinary investigations until the court case has been completed.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-40", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 113–116", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The investigators had the power to set a meeting with Mr. Basra, advise him of the time and place of the meeting and notify him that he could bring a bargaining agent representative with him. This was never done, and no explanation was given as to why. The investigators were never called as witnesses to explain what they did. I draw an adverse inference against the respondent for failing to call the investigators to explain their investigation.\n\nMr. Basra did provide some information to Mr. Scott at the meeting where Mr. Basra was suspended. Mr. Basra also had Mr. Clements provide information as to when he became aware of the charge. Mr. Scott also informed Mr. Basra, both orally and in writing, that an investigation had commenced and that the investigators would talk to him. It appears that the investigators did not bother to contact Mr. Basra directly. They have not even reported on their findings.\n\nThis is not a case where Mr. Basra instructed the CSC not to deal with him directly but to deal with his lawyer. In my view, in the absence of this instruction, there is no duty on the CSC to deal only with the employee's lawyer.\n\nThe respondent's point is that the CSC attempted to get Mr. Basra's story by contacting Mr. Clements. This is a significant and fundamental underpinning to the respondent's case. Proof of this point rests entirely on hearsay evidence. In the emails, there is some indication that the investigators told Mr. Brown that they had contacted Mr. Clements at court. Mr. Brown believed this. The investigators were not called to give evidence of their investigation. While Mr. Brown may have believed they contacted Mr. Clements, Mr. Brown's beliefs are not proof that the investigators did in fact contact Mr. Clements.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-41", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 117–119", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondent argued that it was sufficient for its investigators to have spoken to Mr. Clements at a court appearance indicating that they wanted to talk to Mr. Basra and for Mr. Brown to send letters indicating that he would be willing to hear from Mr. Basra. It seems odd that Mr. Brown knew that he had to write to Mr. Basra directly to inform him that the suspension continued, rather than writing to Mr. Clements, when the respondent claimed that an attempt to talk to Mr. Clements was sufficient to discharge its investigative responsibilities concerning Mr. Basra.\n\nFrom the evidence before me, I am not prepared to conclude that Mr. Clements was anything other than a criminal lawyer retained by Mr. Basra in connection with the pending criminal charge. I am not prepared to assume that Mr. Clements was a lawyer on general retainer for Mr. Basra. He did not represent Mr. Basra in this hearing. There is no evidence before me of Mr. Clements having any involvement in this employment matter other than having written a letter on April 27, 2006, saying that he was retained for a criminal matter.\n\nHearsay evidence is admissible in an administrative law hearing. It may be used to establish what Mr. Brown considered when deciding to continue the suspension. While Mr. Brown's hearsay evidence is admissible for the \"proof of Mr. Brown's state of mind,\" I do not accept hearsay evidence to prove that Mr. Basra refused to provide evidence or information to the CSC. Particularly, this hearsay evidence contradicts other evidence that Mr. Basra did volunteer information when he met with Mr. Scott, that he was told and informed in writing that he would be contacted and that the CSC took no steps to contact him.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-42", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 120–121", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "While the rules of evidence are relaxed in an adjudication hearing under the Act, in my view it would be an adjudicative error to use hearsay evidence to prove a fundamental material fact. Some of the evidence before me is double and triple hearsay. A good example of that is an email from Ms. Tyler to Louise Costello, a staff relations advisor at National Headquarters (Exhibit 19). It purports to contain facts that are not contained in the letter from Crown counsel and that are not documented in any written investigators' report, and there is no indication where Ms. Tyler obtained her information. She was not the investigator. It is clear, however, that this cannot be first hand information. It is not reliable information that I can consider in determining whether continuation of the suspension is justified. The weight that can be attached to hearsay evidence for establishing material disputed facts is minimal, and I place no weight on the hearsay evidence for establishing facts.\n\nThe investigators do not appear to have talked to any of Mr. Basra's co-workers or supervisors. This may have been of considerable assistance in assessing the risk to Mr. Basra, other staff members, visitors and inmates and to the CSC's information system. In the course of his evidence, Mr. Brown raised the risk to the information system as a reason supporting the continued indeterminate suspension of Mr. Basra. It is difficult to understand how Mr. Basra constituted a risk given that in his position he had limited access to the CSC's information system and there is no indication that he has compromised the system in the past. There is nothing in the nature of the offence that would suggest that he presents any risk to the CSC's information system.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-43", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 122–124", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Further, I am concerned with the quality of the evidence provided by the respondent in this adjudication hearing. The respondent called Mr. Brown, who is ultimately the person responsible for running Matsqui Institution. He was absent from Matsqui Institution during critical time periods, and Mr. Scott, who was Acting Warden in Mr. Brown's absence, was not called as a witness. Mr. Brown was the one who made the decisions continuing the suspension, but he was not the one who made the original decision or investigated the facts.\n\nThe Larson test requires more than establishing the good faith of the decision maker and what the decision maker considered; there must be proof of the underlying facts used to make the decision. I would have thought that, at minimum, the respondent would have called the investigators, tendered an investigative report and either called the police officer investigating the offence or tendered the police report.\n\nThe totality of the evidence setting out the allegation is a précis or summary of a police report from a Crown counsel, along with a copy of the charge contained in the sworn information. I have the Crown counsel's characterization of the information that he reviewed to make the charging decision. I do not have the evidence before me that the Crown counsel considered in his decision to lay the charge. What I have at best is a brief description from Crown counsel, which is second hand or double hearsay because it is the Crown counsel's view of a police report. This is also combined with various emails from the investigators to Mr. Brown as to what they heard a police officer say.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-44", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 125–126", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I cannot determine on the evidence before me that the police officer to whom the investigators spoke at court or elsewhere was the police officer who investigated the criminal charge. Mr. Brown speculated that the officer was the investigating officer rather than a court liaison officer, but I cannot accept this speculation as evidence. He did not have the original police report naming the investigating police officer, and the investigating police officer is not named in the letter from Crown counsel.\n\nThere appear to be mistakes made by Mr. Brown in the facts that underlay his decision. Particularly, he seems to have incorrectly assumed that Mr. Basra was aware of the charge and failed to report it. He makes a significant issue that Mr. Basra breached a trust by failing to report the charge, yet the clear obligation in the Code of Discipline is to report a charge, not a potential charge. In this case, the charge was reported by Crown counsel to Mr. Brown before Mr. Basra knew that he had been charged. Mr. Brown seems to be under the impression that an accused person has a duty to cooperate with the police and to plead guilty. He seems to have been under the mistaken impression that Mr. Basra misled the police. Mr. Basra faces a charge of sexual assault and not obstruction of justice or public mischief.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-45", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 127", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I find it surprising that the CSC did not speak to Mr. Basra and his co-workers or supervisors to gather information to assist in its risk assessment. While an immediate suspension might be temporarily justified without a full investigation on an urgency argument, the CSC has had more than six months to assess the risk, and has not seen fit to obtain and consider this information. This suggests to me that the CSC was more concerned with the fact that a charge was laid, with the nature of the allegations, and with the impact on its reputation rather than assessing whether Mr. Basra presented a risk to its legitimate concerns, including the safety of Mr. Basra, co-workers, visitors or inmates, the integrity of the CSC's information system, or its liaisons with outside law enforcement agencies. While Mr. Brown alleges these problems, it is difficult to understand how he came to these conclusions based on the limited information available to him.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-46", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 128", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "It is difficult to accept the rationale put forward by Mr. Brown as risk assessment in light of the failure to obtain and consider a factual underpinning, as risk cannot be assessed in the abstract. The authorities make it clear that the CSC has the duty to obtain and assess information, as detailed in Larson, Ontario Jockey Club and Alberta. Since the limited information from the Crown counsel shows that Mr. Basra was arrested on the charge after it was laid, I must also conclude that Mr. Basra is on some form of judicial interim release or release by an officer-in-charge. The particulars of the release terms were not gathered by the CSC. The release terms may have been of some assistance under the Larson test in assessing risk to the CSC's legitimate concerns. The only inference available to me is that Mr. Basra is not a significant danger to members of the public, as he would otherwise have been detained in custody, rather than being left at large pending his criminal trial.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-47", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 129", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Basra worked at Matsqui Institution for an 18-month period after the alleged facts and before the charge was laid, with an unblemished work record. As a CX-01, he does not have unrestricted access to confidential information, he is not a liaison officer with the RCMP and he does not have unsupervised access with visitors, and many of the posts he works involve little inmate interaction. He is a guard, and is not involved in the rehabilitative work with inmates, except in a very general sense of being part of Matsqui Institution. I accept the evidence of Mr. Virk, in preference to the evidence of Mr. Brown, that inmates do not come forward to guards or CX-01s to discuss their problems. Mr. Virk is an experienced CX-01. In reviewing Mr. Brown's evidence, it is clear that he has not worked as a CX-01 at Matsqui Institution. There is no evidence that Mr. Basra deceived the police in their investigation. There is no duty on him to \"take responsibility,\" if in fact he is innocent of the offence, and he is presumed innocent until proven guilty. At best, the respondent's case is that it is a serious charge and it looks bad for the CSC to allow a correctional officer with a serious charge against him to continue working. I do not accept as credible that the police would refuse to pass on information to Matsqui Institution or to assist correctional officers, including Mr. Basra, at Matsqui Institution if called upon to do so. It was not explained in the evidence how Mr. Basra would present a risk to himself or others if he continues to work in a CX-01 position.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-48", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 130–131", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "There was clear and cogent evidence led by Mr. Basra in this case of a number of positions available to a CX-01 such that there is minimum contact with visitors, female staff and inmates. I would have expected that some of those options would be palatable to the CSC and would minimize any reasonably perceived risk. I am not satisfied that the CSC has fully or properly explored all available options. In particular, there were at least three positions available for scheduling a CX-01 in which Mr. Basra would have had no contact with visitors, female staff or inmates. Any of the evening positions would involve little contact with female staff other that correctional officers. The respondent has not produced any evidence that suggests that female correctional officers would be unwilling to work with Mr. Basra or feel that their safety would be jeopardized. I accept the evidence of Ms. Enns, an experienced CX-02, that she would not have any concerns working with Mr. Basra.\n\nThe Larson test involves the weighing of risk. In my view, given the lengthy period before the charge was laid while Mr. Basra was at Matsqui Institution, the fact that he appears to be at large on some form of release would suggest that he knows that he must be on his best behaviour if he is returned to work. There seems to be little or no risk of him committing a sexual assault in the workplace on female staff or female visitors.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-49", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 132", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Which legitimate concerns of the CSC need to be considered in assessing the risk? It is important to assess the nature of the CSC's business. One of the substantial concerns in Ontario Jockey Club was that the employee was charged with a gaming offence under the Criminal Code, allowing premises to be used as a common betting house. The business of the employer in that case involved gaming and it was important to the continued business status of the employer that persons connected with illegal gaming not be on its premises. In this case, the CSC is engaged on the corrections side of the justice system. Matsqui Institution is in the business of holding male inmates and protecting society from them while they work on their rehabilitation. Matsqui Institution provides an environment including programs to assist in an inmate's rehabilitation. The inmates are more \"hardcore\" criminals than one would find in a minimum-security environment. Mr. Basra's job is to guard the inmates rather than assisting in their rehabilitation. His function is security, principally static security, and it is difficult to see how his ability to perform the security function has been impacted by the criminal charge filed against him. Unlike the facts in Ontario Jockey Club, a federal penitentiary's ability to carry on its business will not be impacted by the presence of an employee accused of a criminal offence.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-50", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "para 133", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Clearly, the criminal charge that Mr. Basra faces is serious, and the manipulative aspects of the alleged offence are a concern. The safety of inmates and staff is a legitimate interest. In my view, given the 18 months during which Mr. Basra continued to work after the alleged offence occurred, there is little risk to staff or visitors. Risk is often dissipated by time: Clarendon Foundation. That Mr. Basra continues working at Matsqui Institution constitutes no risk to male inmates. Rehabilitation of inmates is an important interest; however, a CX-01 has little inmate contact and is not involved in rehabilitation. There is no evidence that there is a safety risk to a CX-01, as generally a CX-01 works in a secure post, has a radio and often has access to an alarm. The CSC's reputation is important, but one of the fundamental tenets of the justice system, of which the CSC is an important part, is the presumption of innocence. The CSC's decision presumes not only that Mr. Basra is guilty of the alleged offence but also that he deceived the CSC and the investigators. There is no basis for the conclusion that Mr. Basra deceived the CSC or the investigators, and he is entitled to be presumed innocent until he is found guilty in a court of law.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-51", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 134–135", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Although not directly argued by counsel, a point stressed by Mr. Brown in his evidence was that a suspension was necessary to ensure the integrity of the CSC's information system, and this was a risk factor that justified a continuing suspension. The integrity of the CSC's information system is important. The evidence, however, does not support this as a \"real risk.\" The evidence is that a CX-01 does not have unrestricted access to the information system. The respondent has proven no risk to the CSC's information system. Interagency cooperation is an important and legitimate concern, but it is hard to see how employing Mr. Basra while he is facing a charge will impact police providing information to the IPSO or assisting at Matsqui Institution if necessary. It is a more hypothetical or speculative concern rather than a probable risk.\n\nBased on the evidence before me, I find that the CSC was not justified in extending Mr. Basra's suspension without pay. Because of its failure to adequately investigate the facts over a lengthy period, the CSC's original administrative decision became disciplinary action against Mr. Basra: Larson.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-52", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 136–137", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I accept the approach in Larson, in which the adjudicator struggled with the length of time required for an investigation and referred to paragraph E.1(a) of \"A Guide to Staff Discipline and Non Disciplinary Demotion or Termination of Employment for Cause\" (Exhibit G-25), which provides that disciplinary action should be taken within a month of the infraction. This is the time frame set in Mr. Scott's direction to the investigators, and it seems that the CSC considered this a reasonable amount of time to investigate the case involving Mr. Basra. In this case, this one-month period ended on May 3, 2006, which would have provided ample time for the collection of information and preparation of an investigation report. It also would have been ample time for the CSC to schedule an interview with Mr. Basra or other employees in the workplace to obtain information related to its concerns.\n\nWhen the CSC makes a decision to suspend an employee pending a disciplinary investigation where criminal charges are laid for off-duty conduct, it is incumbent on the CSC to \"get on and conclude\" an investigation in a timely manner. The CSC is not automatically entitled to suspend an employee simply because of a criminal charge. To suspend an employee without pay until a criminal charge is resolved, the CSC must engage in a risk analysis based on facts collected during an investigation. A lengthy suspension can work a real injustice to an employee, particularly if the investigators do not conduct an investigation that generates a sufficient factual basis for the CSC to make a decision in a timely manner. An employee should not have to bear the wage loss impact of an investigation that is not concluded in a timely way. Mr. Basra is entitled to his pay, retroactive to May 3, 2006.", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358025-53", + "doc_type": "caselaw", + "act_code": "2007 PSLRB 70", + "act_short": "Basra (2007)", + "act_name": "Basra v. Deputy Head (Correctional Service of Canada)", + "section": "", + "citation": "Basra v. Deputy Head (Correctional Service of Canada), 2007 PSLRB 70", + "marginal_note": "paras 138–139", + "heading": "The foundational Basra decision on discipline and the burden of proof in a grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The parties have made no submissions with respect to the rate of interest or prevailing period under paragraph 226(1)(i) of the Act. The period that I consider appropriate for the interest calculation is from May 3, 2006, to the date of Mr. Basra's reporting to work. I will retain jurisdiction for 90 days over the implementation of this decision, especially over the determination of interest on the monies owed Mr. Basra as a result of this decision if the parties are unable to agree on an appropriate interest rate and calculation of interest.\n\nFor all of the above reasons, I make the following order: 140 The grievance is upheld. Mr. Basra is ordered reinstated to his position as a CX-01 effective May 3, 2006, with back pay, full benefits and with interest. I reserve jurisdiction over the implementation of this decision for a period of 90 days. July 11, 2007. Paul Love, adjudicator", + "current_to": "2007-07-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358025/index.do" + }, + { + "id": "fpslreb-358150-1", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 1", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On November 14, 2007, Rudy Moreno Quadrini (“the complainant”) filed a complaint under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the new Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, against the Canada Revenue Agency (“the CRA”) and CRA Commissioner William V. Baker. The complainant subsequently clarified that the respondents should be identified as the CRA and R. Larry Hillier, CRA Assistant Commissioner, Ontario Region (“the respondents”).", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-2", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 2", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant outlined the particulars of his complaint as follows: Unfair labour practice under s. 185 and 186 (2) (a) (iii) & (iv) by failure to extend me a job offer like 371 other similarly affected employees as required under the Human Resources Agreement (“HRA”) between the CRA and Ontario Ministry of Revenue (“OMoR”), whether outside of it or pursuant to article 4.1 thereof by: - CTAO refusing to invite me to a Q&A session held in Whitby on 11/05/2007 while subjecting me to all other related CRA-HRA information sessions and processes such as, CRA Employee Information and Consent Form for example - Mr. Hillier refusing to acknowledge, correspond or provide any related or relevant basis or oral/written requested information/documentation to letters of 10/19/2007, 10/23/2007, 10/29/2007 and 10/31/2007 - Ms. Laurie Wallace refusing to provide relevant basis up to 10/26/2007 - Mr. Hillier’s written refusal to extend me a job offer per letter of 9/13/2007 and thus intimidating, threatening, coercing and discriminating against me among other OMoR-CTAR affected employees and delivering said letter to OMoR HR Branch allegedly outside of the HRA process - CTAO advising OMoR that no job offer forthcoming for me pre-8/30/2007 - Mr. Hillier’s refusal to extend me an introduction letter of 8/17/2007 - CTAO leaving my OMoR position scheduled on p.23 of Appendix 1 to the HRA despite contemplated and willful refusal to hire me", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-3", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 3", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The provisions of the new Act that the respondents allegedly breached read as follows: 185. In this Division, \"unfair labour practice\" means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1). 186. (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall (a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person (iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or (iv) has exercised any right under this Part or Part 2;", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-4", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 4–5", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As corrective action, the complainant sought the following from the Public Service Labour Relations Board (“the PSLRB”): An order requiring the CRA to comply with the Act and HRA to: (i) extend an offer of employment as required under the HRA to me, whom, the CRA, Mr. Hillier or any other person acting on behalf of the CRA, has refused to employ, continue to employ or otherwise discriminated against or discharged in disguise, contrary to paragraph 186 (2) (a) and the HRA, (ii) pay me, as a result the failure, any employment related compensation and benefits of any kind whatever in an amount equal to the remuneration that would, but for the failure, have been paid to me by the CRA making me whole compared to other CTAR affected OMoR employees in the context of those transferring to the CRA in the context of the HRA, and (iii) rescind the disguised disciplinary action taken against me by all the CRA’s refusals by: rescinding and retracting the letter of September 13, 2007, writing me a letter of apology from Mr. Hillier copied to OMoR including the admission of error by he and the CRA, providing any and all requested information and documentation; in respect of the failure and pay compensation in an amount equal to any financial or other penalty imposed on me by the CRA including any and all costs or legal costs incurred.\n\nThe complaint was accompanied by a five-page covering letter dated November 9, 2007, and marked “Personal & Confidential” and “Without Prejudice.” The complainant also attached 125 pages of documents to which he made footnoted references in his letter.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-5", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 6–8", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "It is unclear why the complainant marked his letter “Personal and Confidential” or considered it to be “Without Prejudice.” As the letter contains statements that are necessary to understand the nature of his complaint as well as the position that he adopted regarding the procedure for hearing his complaint, he must have intended that it form part of the official record and that it be placed before the PSLRB. As such, I believe that I am at full liberty to refer to the contents of the letter in this decision and that doing so offers no prejudice to the complainant. I have taken the same position regarding other subsequent submissions from the complainant similarly marked “Personal and Confidential” and “Without Prejudice.”\n\nIn the covering letter, the complainant restated his cause of action in the following terms: Hereby made under paragraph 190(1)(g) of the Public Service Labour Relations Act (hereafter and in accompany [sic] FORM 16 “the Act”) respecting the employer’s refusal to: employ or to continue to employ, or discriminate against with respect to employment, or intimidate, threaten and otherwise discipline the complainant; as prohibited by section 185 and more particularly, subparagraphs 186(2)(a)(iii) and (iv), contrary to Article 4.1 of its Human Resources Agreement (“HRA”) with the Ontario Ministry of Revenue (“OMoR”) under which it is required to offer a job by November 13\n\nThe complainant requested that the PSLRB proceed to determine his complaint on the basis of written submissions: … this matter is relatively straightforward such that, it is unlikely that a hearing will be necessary. I propose that it be dealt with entirely in writing and accordingly attach herewith only pertinent evidentiary documentation … to enable the PSLRB to do so. …", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-6", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 9", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to the complainant, the event that prompted him to place his case before the PSLRB was his receipt of the following letter, dated September 13, 2007, from the respondent, Mr. Hillier, on behalf of the CRA: It has come to my attention that your name has been included on the list of employees whose work is directly affected by the divestment of OMoR’s corporate tax functions to the CRA. I trust that you recall the mediation of your grievances concerning the termination of employment action taken by the CRA when it was discovered that, while you were on paid sick leave with CRA, you were reporting to a new position with the Ontario government. As a result, I must advise you that the CRA is not prepared to offer you employment. You should be aware that, in respect of our Memorandum of Agreement concerning confidentiality, the Minister of Revenue will only be informed that a letter of offer will not be forthcoming for you and we will not be providing them with any further information or details.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-7", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 10", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The following excerpts from the complainant’s covering letter of November 9, 2007, provides further explanation of, and context for, his complaint: This complaint is limited only to the CRA’s refusal to offer me a position, any benefits flowing from that position and no other matter. Specifically, it is not related to any other action I may have against the CRA or other recourse available through the OMoR with respect to any possible remedy, due diligence or remedial failure by it under Article 21 of the HRA for reasons of force majeure or otherwise. … the CRA … refuses to extend me a job offer despite my legal entitlement to it under the HRA. However, it does so entirely outside the HRA process and without providing me any basis whatsoever despite my openness and transparency with the CRA, which has been graced with nothing but silence. The HRA is an administrative agreement – negotiated under Article 6 of Annex C of a Memorandum of Understanding Concerning Administration of Ontario Corporate Taxes – further to a Master Memorandum of Agreement Concerning a Single Administration of Ontario Corporate Tax between the Governments of Canada and Ontario. Article 2.1 thereof says the CRA must comply with the Act, which therefore applies to the HRA. Based on the [wording of the CRA’s letter of September 13, 2007], the CRA’s rationale for it is the aforementioned PSLRB mediation, my grievances and its termination letter, which included prior claims allegedly supporting the termination action taken by it. However, all of this was fully and finally settled by way of mediation. Therefore, aside from any possible breaches of confidentiality and contract arising from Mr.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-8", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 10", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Hillier’s reference to my confidential MOA in issuing said letter because he is neither a party to nor a person required to implement it, I respectfully submit that the CRA’s conduct and refusal to extend me a job offer now fall squarely within subparagraphs 186(2)(a)(iii) and (iv) of the Act. No matter how wrong my past behaviour and conduct at the CRA may seem or even have been in light of its termination of me, like mine, the CRA’s prior claims are all irrelevant now due to the PSLRB mediation… I respectfully submit that this action thus constitutes disguised discipline and double jeopardy after the fact and so, estoppel would now and forever prevent the CRA from denying me a job offer based on the grounds stated in the September 13 letter. The MOA is a valid and binding settlement agreement and presents a complete bar to further action by either party to it. Ere go [sic], my position is that it is not open to the CRA to rely upon the MOA or prior claims to avoid offering me a job under any circumstances and more particularly, under the HRA. If it offered me one, the OMoR would have no concern or reason to enter into a settlement outside the HRA process with me. It is very clear that an MOA effectively, fully and finally settles all claims arising out of a matter. Furthermore, the doctrines of double jeopardy, estoppel, res judicata or issue estoppel and disguised discipline prevent the CRA from ever resurrecting the mediation of those same claims now to deny me a job offer outside the HRA process. Noteworthy, the MOA is clearly silent with respect to re-employment or the impossibility thereof. Therefore, I respectfully submit that the CRA’s tactics here clearly constitute an unfair labour practice within the meaning of sections 185 and 186 of the Act.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-9", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 10–11", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "There appears to be no relevant basis whatsoever for this letter now outside the HRA process or even in law. Therefore, the CRA’s actions are completely unwarranted given its obligation under the HRA, the finality of all claims rendered by the MOA, and my solid employer-employee relationship with the OMoR, which is the only relevant factor that should determine whether or not the CRA should offer me a job now under the HRA. [Footnotes omitted] [Emphasis in the original]\n\nIn their reply received by the PSLRB on December 5, 2007, the respondents objected to the PSLRB’s jurisdiction to hear the complaint. In the alternative, they submitted that the complaint “… does not make out a prima facie case, and further, that it should be dismissed under s. 40(2) of the PSLRA as being frivolous and vexatious.”", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-10", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 12", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondents elaborated their objections to jurisdiction in the following terms: … under the guise of an unfair labour practice, Mr. Quadrini is asking the Board to enforce an obligation on the CRA that he wrongly believes is contained in the HRA. The HRA was only between the two levels of government and Mr. Quadrini is not a party to the Agreement. The Board has no authority to enforce the HRA, nor any authority to require CRA to make Mr. Quadrini a job offer. … with regards to his statements that CRA’s position constitutes disciplinary action, it should be noted that Mr. Quadrini is an employee of the Ministry of Revenue for Ontario and is represented by the AMAPCEO. As such he does not have access to the PSLRB concerning disciplinary matters… Mr. Quadrini states that the CRA’s refusal to offer him a position is based on the fact that he filed a grievance concerning his termination of employment with CRA, which occurred on April 8, 2003. This grievance was referred to adjudication at the PSLRB … and led to a mediation session, which resulted in a settlement allowing Mr. Quadrini to resign from his employment with the CRA. It is the CRA’s position that full and final settlement was reached in ending the Employer/employee relationship and that to offer him a position which would have the effect of “undoing” this agreement would not be appropriate. The fact that the CRA is not offering Mr. Quadrini a position as part of the HRA is not a result of Mr. Quadrini having exercised his right to file a grievance in 2003. There is no prima facie breach of section 186 (2) (a) (iii) or (iv) of the PSLRA. Further, the complaint should be dismissed under s. 40(2) of the PSLRA as being frivolous and vexatious.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-11", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 13–14", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The PSLRB asked the complainant to provide his position in response to the respondents’ objections to jurisdiction. The PSLRB received the complainant’s submissions on January 4, 2008, as well as supplementary information that he filed on January 8 and 17, 2008.\n\nThe complainant’s submissions received by the PSLRB on January 4, 2008, consisted of a 46-page letter accompanied by several hundred pages of documents to which he made reference via numerous footnotes. As in his earlier correspondence, the complainant made many allegations against the respondents and asserted multiple breaches of statute, legal principles and process. Given the sheer volume of the complainant’s submissions, I am providing only a “snapshot” of what I take to be a number of the most relevant elements.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-12", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 15", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant alleged various “procedural defects” and makes applications as follows: The respondents violated rule 7(1) of the Public Service Labour Relations Board Regulations, SOR/2005-79, in filing their reply to a person at the PSLRB other than the Executive Director. For that reason, the PSLRB should reject their reply. Because the complainant was not given a clear indication as to how to reply to the respondents’ submissions, which was both misleading and prejudicial to him, the PSLRB should reject the respondents’ reply. The complainant’s open and forthright manner in his submissions should be contrasted with the CRA’s “collusion or conspiracy” with his current employer, the Ontario Ministry of Revenue (“the OMoR”). The respondents rely in their reply on hearsay evidence manufactured after the fact. The PSLRB should rule that evidence inadmissible. If the PSLRB proceeds by way of a hearing, it should order the respondents to produce relevant information under paragraph 40(1)(h) of the new Act that the respondents have previously denied the complainant. If it exists, which the complainant denies, information supporting the respondents’ actions against him has been withheld from him under the Access to Information Act, R.S.C., 1985, c. A-1. The complainant requests that the PSLRB exercise its power under paragraph 40(1)(j) of the new Act to assign an investigator to: … visit, view and inspect any and all relevant materials at the respondents’ premises and obtain answers to all of my questions relating to this matter including the names and personal addresses of any and all individual CRA employees involved in the decision and action against me so as to ensure that I may take appropriate recourse against them for this unlawful event.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-13", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 15", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant requests the consent of the PSLRB under section 205 of the new Act to prosecute 10 persons under sections 200 and 204 or, more generally, “… every party that [he] knows for certain has been involved in the decision and taken action against [him] …” as well as any additional names that may arise with further evidence.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-14", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 16", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On the jurisdictional objection filed by the respondents, the complainant replied that they are false and “… very egregious in both fact and law”: The respondents failed to address the complainant’s allegations concerning discriminatory treatment, intimidation and threats. Uncontested, the PSLRB must accept those allegations as proven. The complainant has status as a “person” for purpose of pursuing the complaint before the PSLRB. His status as an employee of the Ontario government is totally irrelevant. The fact that the complainant accepted another position with the OMoR since filing his complaint “… arguably under duress …” has no bearing on the complaint. While the respondents may argue that the complaint depends on the interpretation of article 4.2 of the Human Resources Agreement (“the HRA”), signed in July 2007 by the CRA and the OMoR, the real issue is the respondents’ refusal to employ the complainant. The respondents’ actions in replying to the complaint were “… obviously arbitrary, capricious and not in good faith.” Given subsection 191(3) of the new Act, the complainant’s written complaint is evidence that the alleged failure actually occurred. The prima facie [at first look] test argued by the respondents is thus met. The respondents have the onus to prove that they did not violate the new Act. In the complainants’ submission, “… it is impossible for them to discharge that burden in light of their unsupported actions, the wording of article 4.2 of the HRA and the preponderance of evidence in [the complainant’s] favour.” Given that the prima facie test has been met, it follows that the complaint cannot be described as either frivolous or vexatious.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-15", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 16", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The evidence submitted by the respondents “… was simply manufactured ex post facto [after the fact], smarts of backdating and, as such, constitutes both a sham and a camouflage.”", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-16", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 17", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Among the many other statements and allegations made by the complainant, I noted in particular the following ones: The CRA’s refusal to make an offer of employment to the complainant represents constructive dismissal and disguised discipline. The respondents have attempted to apply discipline for the same misconduct addressed in 2003, which is prohibited by the doctrines of estoppel and double jeopardy. A detailed analysis of the HRA proves the complainant’s eligibility for an offer of employment. Mr. Hillier’s behaviour, then and now, constitutes harassment and abuse of authority. The letter of September 13, 2007, was “… definitely intended to intimidate, threaten or otherwise discipline [the complainant] for grieving and mediating the termination action the CRA took against [the complainant] for the alleged misconduct that occurred in 2003 … .” “[The complainant’s] past employment relationship with the CRA is ended and is irrelevant.” There is no authority under the Canada Revenue Agency Act, S.C. 1999, c. 17,that would enable the respondents to refuse to employ the complainant in the circumstances described in his complaint. The divestment by the OMoR of its corporate tax functions to the CRA comprises successorship in labour law. As such, the PSLRB is the governing body with preferred jurisdiction in this case. Nothing precludes the new Act from prohibiting unfair labour practices against new hires. The failure of the respondents to respect the complainant’s common-law right to choose for whom he will work was an error in law that goes directly to the PSLRB’s jurisdiction, and is “… reviewable on the more exacting correctness standard.” With respect to the HRA, the complainant has the status of a “third person” even though he enjoys no privity of contract.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-17", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 17–18", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Even if the PSLRB has no authority to enforce the HRA or require the CRA to make the complainant a job offer, it does have the authority to dispense with any unfair labour practice committed by the CRA with respect to its hiring practices. The PSLRB is completely barred from interpreting the Memorandum of Agreement Concerning a Single Administration of Ontario Corporate Tax (“the MOA”). The complaint centres on the HRA and the PSLRB may construe the HRA without regard to the MOA, as if it did not exist. By referring to the MOA to support his decision, Mr. Hillier breached confidentiality and breached a contract. The respondents’ refusal to employ the complainant violates the Association of Management Administrative and Professional Crown Employees of Ontario (“the AMAPCEO”) collective agreement.\n\nIn an appendix to his submissions, the complainant lists the following “rights, entitlements and benefits” where he has suffered a loss or “differential” by virtue of the respondent’s failure to offer him a job:", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-18", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 19", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In the course of his submissions, the complainant asked to expand the grounds of his complaint to include the allegation that the respondents violated paragraph 186(2)(c) of the new Act: 186. (2) (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from (i) testifying or otherwise participating in a proceeding under this Part or Part 2, (ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2, or (iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-19", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 20", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The nature and extent of the complainant’s submissions poses a substantial case management challenge. It is not unusual for a complainant or grievor to bundle many allegations together in a single action. However, the complainant has made so many statements and allegations, many of which could command an entire hearing process on their own, that he leaves the decision maker at grave risk of getting lost in the sheer volume. I can only presume that the complainant expects a considered finding for every allegation made in every part of the factual and legal terrain that he attempts to traverse. He has devoted, most evidently, enormous time and energy to the task. He must understand, however, that it is my duty to proceed in a fashion that is practical and appropriate to the nature of the matter placed before the PSLRB while safeguarding the rights to due process of both parties. In my view, that requirement demands that I focus the analysis much more narrowly, in the first instance at least, to render the task manageable and closely responsive to the central allegation of the originating complaint. For that reason, the parties were notified on January 22, 2008, on my behalf, of my intent to turn first to a fundamental preliminary issue: The Board believes, based on the written representations submitted to date, that there is no dispute about the key fact that gave rise to the complaint; i.e., that the respondent refused to employ the complainant as indicated in the respondent’s letter of September 13, 2007.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-20", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 20", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The question that the Board believes that it should determine, in the first instance, is whether the facts asserted by the complainant with respect to the employer’s refusal to employ the complainant comprise prima facie evidence of a contravention of subparagraphs 186(2)(a)(iii) and (iv) of the Act. The Board notes that it is holding in abeyance at this time the complainant’s application to the Board under section 205 of the Act for consent from the Board to prosecute as that application requires a prior finding with respect to the complaint. I gave the parties an opportunity to make further written submissions but only on the issue stated in the January 22, 2008, letter.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-21", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 21–22", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I recognize that the respondents stated more than one reason for objecting to the PSLRB’s jurisdiction to consider the complaint and that the respondents also asked in the alternative that the PSLRB dismiss the complaint as frivolous and vexatious. In my view, the question of whether the complaint on its face shows a reasonable link to the prohibitions listed in subparagraphs 186(2)(a)(iii) or (iv) of the new Act is primordial. It goes directly to jurisdiction in the very first instance. If, taking all of the facts alleged in the complaint as true, no arguable case can be made that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv), then the complaint may be dismissed for that reason alone. Other jurisdictional issues and the respondents’ alternative argument that the complaint should be dismissed as frivolous and vexatious, as well as some or all of the applications made by the complainant, may or will be before the PSLRB if the precondition of a prima facie basis for the complaint is satisfied. My decision on procedure reflects my understanding of the nature of the analysis required by the new Act, viewed in the context of the case law.\n\nThe complaint at issue alleges that the respondents committed an unfair labour practice within the meaning of section 185 of the new Act,which reads as follows: 185. In this Division, “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-22", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 23–24", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The particulars of the complaint identified subparagraphs 186(2)(a)(iii) and (iv) of the new Act as the statutory provisions contravened by the respondents: 186. (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall (a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person (iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or (iv) has exercised any right under this Part or Part 2;\n\nSubsection 191(3) of the new Act assigns the burden of proof in an unfair labour practice complaint involving subsection 186(2): 191. (3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-23", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 25–27", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The reverse onus contemplated by subsection 191(3) of the new Act is unusual in the framework of the statute and a clear exception to the normal expectation in proceedings before the PSLRB that the party who alleges a violation must prove it. The presence of the provision strongly suggests that the legislator believed that actions arising under subsection 186(2) would involve an exceptional situation where a different approach to burden of proof would be required to level the playing field between the parties.\n\nA similar approach is found in the Canada Labour Code, R.S.C, 1985, c. L-2 (“the Code”), and may have inspired the legislator in this case. Subsection 94(3) of the Code contains a provision that broadly parallels subparagraphs 186(2)(a)(iii) and (iv) of the new Act: 94. (3) No employer or person acting on behalf of an employer shall (a) refuse to employ or to continue to employ or suspend, transfer, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment or intimidate, threaten or otherwise discipline any person, because the person (v) has made an application or filed a complaint under this Part, or\n\nAs with subsection 191(3) of the new Act, subsection 98(4) of the Code stipulates a reverse burden of proof: 98.(4) Where a complaint is made in writing pursuant to section 97 in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with subsection 94(3), the written complaint is itself evidence that such failure actually occurred and, if any party to the complaint proceedings alleges that such failure did not occur, the burden of proof thereof is on that party.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-24", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 28", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Under a strict reading of either subsection 191(3) of the new Act or subsection 98(4) of the Code, the PSLRB or the Canada Industrial Relations Board (“the CIRB”), as the case may be, must take the existence of a complaint in writing that the employer or a person acting on behalf of the employer failed to observe an identified statutory prohibition as proof that that failure did occur. The burden then shifts to the opposing party to disprove that fact.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-25", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 29", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In Wilson v. ADM Agri-industries Ltd., [2000] CIRB no. 99, the CIRB offered what I believe to be a crucial caveat. For the reverse burden of proof required by subsection 98(4) of the Code to apply, there must first be prima facie substance to the complaint. Examining a situation where it felt uncertain about the basis for an unfair labour practice complaint filed against a trade union, the CIRB summarized the approach taken under the Code in those circumstances: [13] At the start of the hearings, the Board declared that the circumstances of the complaint were somewhat vague and did not appear to constitute prima facie evidence of union activities leading to the complaint. Section 98(4) places the burden of proof on the employer. However, as the Board found in Canada Post Corporation (1983), 52 di 106; and 83 CLLC 16,047 (CLRB no. 426), “notwithstanding the burden of proof provisions of section 188(3) [now section 98(4)] of the Code, there has to be some substance to a complaint upon which a contravention of the Code can be founded. It is not enough for a complainant to throw out accusations, then sit back and rely on the inability of the other party to disprove them.” The Board has the authority to decide whether the complainant has established the required elements of a prima faciecase, before the burden of proof can be shifted to the employer. This rule was applied as well in the following decisions: CHUM Western Ltd., Radio CKVN (1974), 3 di 18 (CLRB no. 6); Radio Ste-Agathe (CJSA) Inc. (1975), 8 di 8; and 75 CLLC 16,154 (CLRB no. 39); Air Canada (1975), 11 di 5; [1975] 2 Can LRBR 193; and 75 CLLC 16,164 (CLRB no. 45); and Provost Cartage Inc. (1985), 61 di 77 (CLRB no. 517).", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-26", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 30–32", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The similarity between the relevant provisions of the new Act and the Code, in my view, provides ample justification for approaching subsection 191(3) of the new Act in the same fashion that the CIRB has interpreted subsection 98(4) of the Code. For this complaint, I believe that is both appropriate and necessary to follow that approach.\n\nIn Laplante v. Treasury Board (Department of Industry and the Communications Research Centre), 2007 PSLRB 95, the PSLRB reached a similar conclusion about the required approach in interpreting the reverse burden of proof applicable to subsection 186(2) of the new Act: [88] In conclusion, the complainant must meet a precondition for the provision on the reversal of the burden of proof to apply. Before the employer can be required to prove that it did not contravene the prohibitions, the complainant must show that one of the circumstances described in subsection 186(2) of the new Act has been met. Without proof to that effect, the complaint is inadmissible and the reversal of the burden of proof cannot be applied… .\n\nAt heart, the issue of a prima facie case here is one of common sense. Were it the case that a person could simply file a complaint stating his or her conviction that there has been a violation of subsection 186(2) of the new Act and, by doing so, trigger the legal requirement that the respondent prove the contrary, the possibilities for vexatious litigation would be substantial. An allegation of a breach of subsection 186(2) must be reasonably arguable on its face. As stated earlier, the threshold is the following: taking all of the facts alleged in the complaint as true, is there an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act?", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-27", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 33", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In essence, the complainant alleged that the respondents committed an unfair labour practice when they refused to employ him because in 2003 he exercised his right to present certain grievances under the Public Service Staff Relations Act,R.S.C., 1985, c. P-35 (“the former Act”), and later referred those grievances to adjudication. When I examined the documents submitted by the complainant in support of his complaint, it was unclear, despite the detail and volume of what he wrote, whether the complaint revealed an arguable case that the respondents have contravened the prohibitions contained in subparagraphs 186(2)(a)(iii) or (iv) of the new Act. In other words, there remained an open question in my mind whether there was a prima facie case for a link between the unfair labour practice complained of and the complainant’s prior pursuit of his rights under the former Act. Only if I could be satisfied that, on its face, the complaint supported an arguable case could my analysis proceed. At that point, the reverse burden of proof required by subsection 191(3) of the new Act would come into play, presuming that the disposition of other preliminary matters led me to proceed to the merits of the complaint. If I were not satisfied that there was a prima facie case for the link, then I would have no basis to continue.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-28", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 34–35", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondents filed brief submissions on January 31, 2008, to the following effect: It still remains the position of the Employer that the complaint does not raise a prima facie case in respect of an alleged failure by the Employer or any person acting on behalf of the Employer to comply with subsection 186 (2) of the PSLRA. It is clear from the complaint that the basis of the Employer’s decision not to re-employ the complainant was due to his previous misconduct and is in no way related to the fact that he presented a grievance challenging the Employer’s decision to terminate his employment in 2003. The complainant is simply asking the Board to draw an inference of retaliatory conduct, which is unsupported by any alleged evidence. It is equally clear that the employer entertained his grievance and entered into a binding settlement to the mutual satisfaction of the parties. During this grievance process the bargaining agent represented the complainant. Any assertion by the complainant of retaliation by the employer on account of the complainant having exercised his rights under the Act, is nothing but pure conjecture on his part and has no basis in fact and no factual foundation has been asserted by the complainant to substantiate his complaint.\n\nThe complainant filed his submissions on February 4, 2008, styling them as a rebuttal to the respondents’ submissions of January 31, 2008.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-29", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 36", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant argued that the respondents were trying to change the basis of their argument justifying their refusal to employ him: They now attempt to change their basis yet again by relying on the alleged “previous misconduct” of January 3, 2003 versus the reasons clearly expressed in the letter itself. They do so in stark contradiction with their own arguments respecting jurisdiction, and to the prejudice of the complainant, who demolished their burden of proof in the Response. This proves that they have no real bases [sic], other than for settlors remorse and an illegal burning desire to weed out the complainant from the HRA, preempting his participation in it “outside the process” due to their perception that he is undesirable. All of this has been proven dead wrong with corroborating evidence from the OMoR, which acted as the employer’s agent with respect to the complainant under the HRA.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-30", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 37", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant reiterated his position that the respondents refused to hire him for reasons related to the grievance that he referred to adjudication in 2003: The complainant maintains the position that, among other things, the respondents were prima facie wrong to refuse to employ or continue to employ the complainant, and that there is no basis whatsoever in fact or law which would enable the respondents to do so. There simply is no conflict between the now allegedly settled MOA, and the HRA, under which the respondents were obliged to hire me under any circumstances. The alleged misconduct was settled in mediation. Therefore, in light of the finality of past events, it is not open to the employer to refuse to employ me or continue to employ me based on the mediation. As the prima facie case is clear on its face, the complainant reiterates his request of the PSLRB to confirm the complaint now under section 41 …", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-31", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 38", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant criticized the respondents’ use of the term “re-employ” in their submissions: Furthermore, misstating the issue as, “… the Employer’s refusal to re-employ …” me, when my Complaint, Response and the PSLRB’s letter stated that it was, “. . . the employer’s refusal to employ … .” me, is yet another disrespectful attempt to distract the PSLRB’s attention from the real facts asserted. The facts supporting the Complaint/Response have only dealt with the respondents’ refusal to employ or refusal to continue to employ not “re-employ” me. Paragraph 186(2) (a) clearly does not contain the word “re-employ” and therefore, must be construed in the appropriate context. In light of the AMAPCEO Collective Agreement, the mechanics of the HRA and the common law, that context completely ignores any previous employment relationship with the CRA and as such, the complainant must be viewed as a new hire like all other OMoR employees. Apart from me characterizing in both the Complaint and Response the terms and conditions of the MOA, which in no way precludes my re-employment and is irrelevant anyway, there was never any fact/issue asserted concerning any “re-employment”. This is because on the OMoR’s transfer of its tax administration, the respondents’ simply assumed the role of the OMoR as the employer in its employer-employee relationship with me, qua employee. Hence, there still is no fact or issue of “re-employment” as there might be if, for example, I were to voluntarily reapply to the CRA. This is because the OMoR’s divestment transferred me involuntarily.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-32", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 39", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant appears to have offered the core of his argument concerning jurisdiction in the following passage: … Although the respondents seem to have conceded to the PSLRB’s jurisdiction to hear the complaint, they willfully ignore that a prima facie case is deemed to have been met by virtue of the complaint having been made unless they can refute it. However, they willfully misconstrue subsection 191(3) of the Act in failing to acknowledge that it is their burden to prove the alleged failure did not occur. Whether or not such refusal by the employer or any person acting on its behalf was due to my previously alleged misconduct, (which, again, for the reasons previously provided is irrelevant but expressly denied), the September 13th letter, by its own wording, speaks for itself. Any onus I had, (which, again, is expressly denied), has already been met. If all that is necessary for the respondents to refuse to employ me is an employment related reason, (which, under my particular circumstances is expressly denied), the respondents have not refuted my proof demonstrating bad faith, sham or camouflage on their part. Clearly, the rights that the employer purported to have by issuing the said letter do not exist in law and as such, its refusal to employ me was clearly a sham. I follows that any continuance of its refusal in illegal circumstances obviously constitutes both bad faith and camouflage. It is well-settled that there is no defense for ignorance of or any shield for flagrant disregard of the law. Therefore, the employer should simply say, “Uncle”. … the issue before the PSLRB now is the employer’s refusal to honour my rights under the HRA to employ or continue to employ me, not whether the terms of the MOA fail to be upheld or not by virtue of the HRA.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-33", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 39–42", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "While I have already proven that the PSLRB has no jurisdiction to determine whether the MOA would be unfulfilled due to the HRA, the respondents have essentially asked the PSLRB to enforce the MOA entirely out of context while apparently relying on PSLRB decisions that support my position not theirs. Vexatious, a cost award to me is thus warranted.\n\nIn the course of his submissions, the complainant requested that the PSLRB exercise its powers under paragraph 40(1)(h) of the new Act to compel the OMoR to provide certain “evidence” that he had previously sought in a “fruitless” request under the provincial Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.\n\nThe complainant also included in his submissions a number of documents that he received from the CRA in January 2008 after filing an Access to Information request. Because some of the content of certain documents had been redacted by the CRA, the complainant requested that the PSLRB compel the respondents to provide the original version of all of the documents without the redactions.\n\nFinally, based on “new information,” the complainant submitted forms requesting the PSLRB’s consent to prosecute a further 30 named individuals.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-34", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 43–45", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The prohibitions expressed in subparagraphs 186(2)(a)(iii) and (iv) of the new Act are a vital element of the statutory regime: 186. (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall (a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person (iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or (iv) has exercised any right under this Part or Part 2;\n\nA substantially similar prohibition formed part of the former Act: 8. (2) Subject to subsection (3), no person shall (a) refuse to employ, to continue to employ, or otherwise discriminate against any person in regard to employment or to any term or condition of employment, because the person is a member of an employee organization or was or is exercising any right under this Act;\n\nIt has been and continues to be fundamental to the integrity of the labour relations systems created by the new Act and the former Act that persons who have exercised rights accorded to them under those laws did so, and can continue to do so, without fear of reprisal. Were it otherwise, given the possibility of the misuse of authority in the relationship between individual persons and employers, the chilling effect of reprisal action on the exercise of vested statutory rights could undermine the effective force of those rights.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-35", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 46–48", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In the new Act, the scope of action prohibited as a reprisal has been expansively expressed in the wording of subparagraphs 186(2)(a)(iii) and (iv). It includes a “refus[al] to employ or to continue to employ … or otherwise discriminate” against any person or to “intimidate, threaten, or otherwise discipline” any person for having presented a grievance or for having exercised any other rights under Parts 1 or 2 of the new Act.\n\nThe concept of reprisal, in my view, establishes the fundamental context within which an unfair labour practice complaint of this type must be considered. The complainant in this case effectively contends that he was the subject of reprisal action within the meaning of subparagraphs 186(2)(a)(iii) and (iv) of the new Act. The form of the reprisal action argued by the complainant was the respondents’ refusal “to employ or to continue to employ” him. The purported reason for that action was that he presented a grievance during an earlier period of employment with the (then) Canada Customs and Revenue Agency (“the CCRA”), now the CRA, and referred that grievance to adjudication.\n\nI am led, then, to refine the preliminary issue before the PSLRB as follows: does the complaint show a prima facie case for of a link between the respondents’ decision not to employ or to continue to employ the complainant in 2007 — the alleged reprisal action — and the complainant’s exercise several years earlier, while an employee of the CCRA, of the right to grieve and to refer that grievance to adjudication? As I have ruled above, the complaint must reveal an arguable case as a precondition to my accepting jurisdiction to hear the complaint and before the reverse burden of proof requirement under subsection 191(3) of the new Act can come into play.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-36", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 49–50", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Despite the volume of information offered by the complainant, I believe that the essential facts relevant to my determination are relatively limited. While an employee of the CCRA, the complainant submitted two grievances and subsequently referred them to adjudication under the former Act. The complainant resigned from employment with the CCRA in October 2004 after settling his grievances in mediation. At the time he filed his complaint, the complainant was an employee of the OMoR, working in its corporate tax division. Subsequent to his taking up employment with the OMoR, the governments of Canada and Ontario entered into the MOA to provide a single administration of the federal and provincial corporate tax administration functions in Ontario. As part of implementing the MOA, the CRA and the OMoR signed the HRA which transfered the incumbents of affected OMoR corporate tax positions to the CRA. The complainant’s name was apparently placed on a list of employees to be transferred. The respondents later claimed that his name appeared on the list in error. By his letter of September 13, 2007, respondent Hillier, on behalf of the CRA, notified the complainant that the CRA was not prepared to offer him employment despite the presence of his name on the aforementioned list.\n\nThe complainant, for his part, considered the “… failure to extend [him] a job offer like 371 other similarly affected employees as required under the Human Resources Agreement (‘HRA’) between the CRA and Ontario Ministry of Revenue (‘OMoR’) …” to be an unfair labour practice within the meaning of subparagraphs 186(2)(a)(iii) and (iv) of the new Act and filed this complaint accordingly.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-37", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 51–52", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Applying the prima facie test mentioned earlier, I must assess whether, taking the facts alleged by the complainant as true, there is an arguable case that the respondents have contravened the prohibitions contained in subparagraphs 186(2)(a)(iii) or (iv) of the new Act. To be clear, the test at this stage is not whether I believe that such a contravention actually occurred. It is not whether I am persuaded that it is more likely, as argued by the respondents, that their decision not to employ the complainant was based on the complainant’s purported misconduct. Rather, the test is whether an arguable case can be made for a link between the complainant’s exercise of rights under the former Act and the respondents’ decision not to employ him in 2007, if I accept all of the facts alleged by the complainant to be true.\n\nIn conducting the required assessment, I am cognizant that, if I have any doubt what the facts, assumed to be true, reveal, I must err on the side of finding that there is an arguable case for the required link and thus preserve the complainant’s opportunity to have his complaint heard in a proceeding that respects the reverse burden of proof requirement under subsection 191(3) of the new Act.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-38", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 53–55", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "My assessment leads me to the conclusion that it is at least possible that the respondents declined to hire the complainant in 2007 because of his exercise of rights under the former Act. While there may well be different and more probable explanations for the sequence of events alleged to have occurred by the complainant, I am unable to conclude that there is no reasonable way to argue a theory of the case linking the respondents’ letter of September 13, 2007, to the complainant’s past exercise of the right to grieve and to refer his grievance to adjudication. On that basis, I am compelled to find that the complaint reveals an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act. Whether a contravention of these provisions really occurred will have to be determined on the basis of the formal evidence that the parties will present on the merits.\n\nHaving found that, on its face, the complaint reveals an arguable case that the respondents have contravened subparagraphs 186(2)(a)(iii) or (iv) of the new Act, the onus now falls on them, pursuant to subsection 191(3), to establish on a balance of probabilities that their decision to refuse to employ or re-employ the complainant was not motivated by the fact that he presented a grievance and referred it to adjudication.\n\nAt this point, I wish to make two further comments on the submissions of the complainant in the hope that they will assist to clarify the focus of a future hearing. These comments should not be interpreted as formal rulings.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-39", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 56–58", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant appears in the following statement to allege that the respondents exhibited an “anti-union animus” and that they imposed discipline in disguise: … that the respondents’ reasons were the alleged conflict of interest and their anti-union animus. They have essentially attempted to apply disguised discipline for the same perceived misconduct, which is prohibited by the doctrines of estoppel and double jeopardy.\n\nThe issue of anti-union animus arises under a different provision of the new Act, subparagraph 186(2)(a)(i). Subparagraphs 186(2)(a)(iii) and (iv), on which the originating complainant does rely, do not address motives related to union status or membership.\n\nThe complainant later submitted that “… [Mr. Hillier’s] letter was meant to remind and advise me that despite my clear right to receive an offer under the HRA, Mr. Hillier (and maybe others at the CRA) do not want me back there.” I do not believe that the determination that I must make on the merits requires that I interpret the HRA, or the MOA, or, before so doing, determine whether the PSLRB has jurisdiction to make any finding based on what those agreements may have required in the circumstances faced by the complainant.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-40", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 59", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In his reply submissions of January 4, 2008, the complainant asked to expand the grounds of his complaint to include the allegation that the respondents violated paragraph 186(2)(c) of the new Act that reads as follows: 186. (2) (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from (i) testifying or otherwise participating in a proceeding under this Part or Part 2, (ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2, or (iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-41", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "para 60", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant offered the following rationale: … although my Complaint was not initially based on subparagraph 186(2) (c) of the Act, I request your permission now to invoke it due to the very intimidating evidence involving the OMoR, my current employer, attached to the respondents’ Reply. If short of conspiracy, the exchange of information and transactions occurring between the CRA and OMoR concerning me without my involvement, consent or knowledge is indeed very threatening. Perhaps, the OMoR may now be said to be “acting on behalf of the employer” respondents within the context of the preamble to subsection 186 (2). In my view, the parties have ignored Article 1.2.5 while exploiting Article 1.2.4 of the HRA. My fear of reprisal from the OMoR, potential job loss and the resulting financial penalty, which I may suffer by continuing with this matter, has become very real and compelling indeed. For example, the parties’ purported use of the dispute resolution clause to amend the Appendix to the HRA as a sword against me after I’d requested that it be used to require the CRA to honour its obligation to offer me a job as a shield to protect me causes me very serious concern indeed. [Footnotes omitted]", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-42", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 61–63", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I have examined the documents attached to the respondents’ reply of December 5, 2007, the purportedly “intimidating evidence” on which the complainant based his allegation. They consist of the following: (i) a November 9, 2007, letter from an OMoR official stating, among other things, that “… Mr. Quadrini should have been excluded from the HRA job offer list based on the understanding between CRA and OMoR and that he would not be offered a job …”; and (ii) a November 27, 2007, letter from the Ontario Commissioner of Revenue to the President of the AMAPCEO confirming the placement of the complainant in an alternate position in the OMoR after his removal from the “Corporations Tax directly-impacted list.”\n\nI cannot find anything in these two letters, or anywhere else in the documentation, that reveals an arguable case that the respondents have sought to compel the complainant to refrain “… from becoming or to cease to be a member, officer or representative of an employee organization.” Nothing relates to the possibility of the complainant (1) having been refrained from testifying or otherwise participating in this complaint procedure under the new Act, (2) from making a disclosure, or (3) from making an application or complaint under Part 1 of the new Act.\n\nTo the extent that there might be any possible substance to the complainant’s allegation, which I believe to be problematic, the primary target of his concerns, by his own omission, is the OMoR. The OMoR is not a respondent in this complaint, nor has the complainant offered any credible basis for his suggestion that the OMoR can be considered to have “… acted on behalf …” of the respondents.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-43", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 64–67", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Applying here again the prima facie test mentioned earlier, I am not satisfied that, taking the alleged facts as true, there is an arguable case that the respondents have contravened the prohibitions contained in paragraph 186(2)(c) of the new Act. For that reason, I am denying the complainant’s request to expand his complaint.\n\nThe complainant to date has requested the PSLRB’s consent to prosecute 40 named individuals under section 205 of the new Act: 205. A prosecution for an offence under this Division may be instituted only with the consent of the Board.\n\nAs I have denied the complainant’s request to add a new ground to his complaint, and as it remains to be determined whether the respondents contravened the prohibitions contained in subparagraphs 186(2)(a)(iii) or (iv) of the new Act, I rule that the applications for consent to prosecute are premature. They will, therefore, be returned to the complainant.\n\nI would like to point out that, to the best of my knowledge, there have been no other proceedings before the PSLRB under section 205 of the new Act since it came into force on April 1, 2005. Under the former Act, applications for consent to prosecute under a similar provision (its section 107) were exceedingly rare and almost all involved situations where it was alleged that employees participated in an illegal strike.", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358150-44", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 37", + "act_short": "Quadrini", + "act_name": "Quadrini v. Canada Revenue Agency and Hillier", + "section": "", + "citation": "Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37", + "marginal_note": "paras 68–74", + "heading": "Unfair labour practice and freedom of expression in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "It is entirely appropriate, in my view, that the PSLRB view the very few consent-to-prosecute requests that come before it as extremely serious and exceptional applications. Section 205 of the new Act is not a provision that should be invoked lightly given the possibility of extraordinary legal consequences for those persons against whom prosecutions are proposed. I have no clear sense in the case before the PSLRB that the complainant appreciated the PSLRB’s very limited case law in this area. It may be that he believed that it is relatively routine practice to invoke section 205 when making an unfair labour practice complaint. If so, it is a practice that should be discouraged.\n\nThere is no need or reason to consider at this time any of the other claims or applications that the complainant advanced in the course of his several submissions.\n\nFor all of the above reasons, the PSLRB makes the following order:\n\nThe respondents’ objection to my jurisdiction to consider the complaint under subparagraphs 186(2)(a)(iii) and (iv) of the new Act is dismissed.\n\nA hearing will be convened for the purpose of assessing whether the complainants have contravened the prohibitions contained in these provisions. The respondents will bear the onus of disproving the complainant’s allegation on a balance of probabilities.\n\nThe complainant’s request to expand the complaint to include an allegation that the respondents violated paragraph 186(2)(c) of the new Act is denied.\n\nThe complainant’s requests for the PSLRB’s consent to prosecute will be returned to him. May 28, 2008. Dan Butler, Board Member", + "current_to": "2008-05-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358150/index.do" + }, + { + "id": "fpslreb-358180-1", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 1–4", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor, Michael Pepper, is a systems electronic technician with the Fleet Maintenance Facility at Cape Scott, Nova Scotia, in the underwater marine weapons maintenance shop. He is a marine electrician by trade. He commenced working at the Department of National Defence (‘‘the employer’’) as an apprentice on June 20, 1977, and was appointed indeterminately on April 27, 1981. He completed training as an electronic technician in 1988 and was appointed as a systems electronic technician (SR-EEW-10) in November 1989 and then to the next highest level (SR-EEW-11) in March 1999. He is a member of the Federal Government Dockyard Trades and Labour Council East (‘‘the bargaining agent’’).\n\nOn June 30, 2006, the grievor’s employment was terminated pursuant to section 11(2)(g) (now 12(1)(e)) of the Financial Administration Act, due to his inability to attend work for medical reasons. The termination was effective July 14, 2006. The grievor had been absent from work since 1999.\n\nThis adjudication concerns two grievances. The first grievance, dated January 16, 2002, alleges that management mistreated the grievor to the point of causing him to become ill and unable to perform his duties (“the harassment grievance”) (PSSRB File No. 166-02-31912). The second grievance, dated July 16, 2006, alleges that the termination of the grievor’s employment was illegal (PSLRB File No. 566-02-767).\n\nMediation efforts between September 11, 2003, and March 17, 2006, concerning the grievor’s first grievance were unsuccessful. The employer’s decision to dismiss the grievor followed discussions engaged in during the mediation process.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-2", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 5–8", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On April 4, 2007, the employer objected to the Board’s jurisdiction over the reference to adjudication of the first grievance on the basis of timeliness because the grievance was filed five years after the beginning of the alleged mistreatment (PSLRB File No. 568-02-154).\n\nAt the commencement of the hearing, the employer conceded that the timeliness of the first grievance had been waived during the course of the grievance process and withdrew its objection. The employer, however, maintained its objection to the Board’s jurisdiction to decide the reference to adjudication of the same grievance, based on subsection 92(1) of the Public Service Staff Relations Act (‘‘PSSRA’’), as it applied at the time the grievance was filed.\n\nAfter hearing counsel’s arguments and considering the written submissions filed by the parties prior to the hearing and the documents submitted at the outset of the hearing, I decided that it was not prudent to fully decide the objection to my jurisdiction without hearing the evidence of the matter. Accordingly, I took the employer’s objection to the adjudicability of the first grievance under reserve of hearing all the evidence.\n\nAs the testimony of the grievor and Captain Richard Payne concern the same issues and there was no contradiction between their testimony, it has been summarized together. In the summer of 1993, Donna Urquhart began working in the maintenance shop. She was hired under an equal employment initiative for women in non-traditional roles. She apprenticed in the fire control shop - services weapons.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-3", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 9–10", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the end of her apprenticeship, Ms. Urquhart was classified as a SR-EEW-10S, one level above the grievor, who was then at the SR-EEW-10 level with 18 years seniority. However, because of his knowledge and experience, the grievor was frequently called upon to review the quality of Ms. Urquhart’s work and, at times, to redo it. Terry Martin, the grievor’s supervisor, was aware of Ms. Urquhart’s shortcomings as they had been brought to his attention several times, not only by the grievor, but by another employee as well. These shortcomings notwithstanding, Mr. Martin rated Ms. Urquhart as “fully satisfactory” on her performance appraisal (PER) in 1995.\n\nThe grievor’s PER for that year was also fully satisfactory, but also included a rating that the quality of his work consistently exceeded requirements and expectations. At the end of the meeting at which he signed his PER, Mr. Martin informed the grievor that Ms. Urquhart had filed an unofficial complaint against him. The substance of the complaint was that the grievor had closed a door in Ms. Urquhart’s face. The grievor did not recall the incident and said so. Mr. Martin replied that if two people could not get along, one of them could be removed. The grievor took this comment personally. The grievor returned to see Mr. Martin to tell him that he felt that his employment was being threatened. Mr. Martin told him to forget the whole thing.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-4", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 11–15", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "By way of context, it is useful to know that Ms. Urquhart was viewed by the grievor and his co-workers as a “protected person,” that is, as a female in a non-traditional field. She had been relocated to Dartmouth over more senior male personnel in the fire control shop who had unwillingly moved to Halifax. Furthermore, Ms. Urquhart was working in a shop that required seniority for advancement, which she did not have. In addition, she was at a higher classification level than the grievor. It seems that Ms. Urquhart made no bones about the fact that she “would be in the shop long after others were gone”. Thus, the grievor became increasingly anxious that his job could be in jeopardy.\n\nThe grievor’s concerns about his employment, his manager’s lack of action concerning the quality of the shop work generally and the fact that he was having to compensate for Ms. Urquhart’s shortcomings caused him to fall ill in December 1996 and to take five months of sick leave.\n\nWhile he was on sick leave, the grievor met with Ray Cormier, Production Manager, to discuss his concerns about the underwater marine weapons maintenance shop; he gave Mr. Cormier a detailed letter outlining those concerns. The grievor also went to see Mr. Martin to express similar concerns, also with a detailed letter in hand. Mr. Martin refused to accept the letter.\n\nMeanwhile, Mr. Cormier arranged a meeting between the grievor and Mr. Martin, Mr. Perrier, the group foreman, and Kevin Ernst on February 21, 1997. The grievor’s concerns were discussed and an action plan was agreed to. According to the grievor, no further action to resolve his concerns was taken as a result of the recommendations in the action plan.\n\nThe grievor returned to work in May 1997.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-5", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 16–17", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On December 2, 1997, Ms. Urquhart came to work in a neck brace following a car accident unrelated to work. The grievor testified that he and a co-worker, Gerry Cross, were discussing training opportunities when Ms. Urquhart entered the room. Ms. Urquhart intervened in the discussion by saying that she was not getting any training, that if she did not get any training she would be unable to work on the equipment, and that if there was no journeyman to work with her, she could not do the work. She stated that she took offence to the fact that the grievor kept notes about her and that he intended to report the results to the captain. The grievor replied to her comments by asking her what she would do if she had to go out on a sea trial. She replied that her husband would not allow her to go to sea because she would be with a bunch of men. The grievor responded that “she was getting darn good money to do electronic work and she had better darn do it”. The grievor admitted at the hearing that his reply had been an expression of his frustration at having to check and correct her work despite being at a lower classification, along with the fact that Ms. Urquhart did not seem to enjoy her job.\n\nMs. Urquhart left work that day for an indeterminate period. On December 6, 1997, at the request of Ed Merlin, Assistant General Manager, she sent a statement entitled “Mike Pepper documenting work performance of fellow employees” which set out Ms. Urquhart’s version of the altercation of December 2, 1997. She requested that the matter be resolved by means of a shop meeting and an apology from the grievor. Ms. Urquhart’s statement was taken by Mr. Merlin to be an official complaint. The grievor was not given a copy of Ms. Urquhart’s alleged complaint until July 31, 2002.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-6", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 18–23", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Merlin met with the grievor and shop steward Jerry Ryan on December 8, 1997, to discuss Ms. Urquhart’s statement. On December 22, 1997, Mr. Merlin met again with the grievor and Mr. Ryan to review the grievor’s log book. The log book recorded past repair work that he would refer to when similar repairs came up again. The log book did not mention the work of individuals, but rather how equipment was best repaired. The grievor was informed that no further action would be taken about this incident.\n\nOn January 23, 1998, the grievor met with Mr. Merlin and requested that Ms. Urquhart’s complaint be resolved once and for all. The grievor was told that there could be no decision until Ms. Urquhart returned to work.\n\nDuring Ms. Urquhart’s absence, the grievor took on additional responsibilities at work and upgraded his classification.\n\nIn May 1999, Ms. Urquhart returned to work on modified duties in a shop area adjacent to the grievor’s. Shortly thereafter, the grievor had a chance encounter with her in the corridor outside the washrooms that caused him to panic. He reported the incident to Mr. Cross. Thereafter, the grievor experienced several similar panic attacks.\n\nOn June 8, 1999, the grievor took sick leave and has not returned to work since that time.\n\nOn September 8, 1999, the grievor telephoned Wilma Verge, Human Resources Manager, to request her assistance in resolving Ms. Urquhart’s still outstanding complaint. On September 24, 1998, Ms. Verge wrote to the grievor stating that there had never been an official harassment complaint filed against him and that there was no formal investigation in progress. Accordingly, no disciplinary action was being contemplated nor was his employment threatened.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-7", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 24–25", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On October 29, 1999, Sun Life Group Disability Management (Sun Life) wrote to Ms. Verge concerning the grievor’s disability claim. Mr. Cormier responded to an inquiry from Ms. Verge on December 3, 1999, that there had been an “interpersonal problem” between the grievor and another employee. Ms. Verge communicated to Sun Life that no formal complaint has been filed against the grievor but that there was an interpersonal problem that appeared to have caused him distress.\n\nOn December 21, 1999, the grievor filed harassment complaints against Mr. Martin, Mr. Merlin, Mr. Cormier and David Conrod, as well as Ms. Verge, alleging abuse of authority because they ignored complaints of alleged harassment by Ms. Urquhart: the alleged door slamming incident (date unknown) and the verbal altercation incident (December 1997). On February 22, 2000, the commanding officer, Captain Richard Payne, wrote to the grievor informing him that he had looked into his complaints and determined that informal investigations had been inconclusive and that the investigations were formally closed. This letter was followed by another more detailed letter dated March 13, 2000, whereby Captain Payne reiterated his findings that there was no evidence to support the five harassment complaints and suggested that these concerns could have been more appropriately addressed in a grievance.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-8", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 26–27", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On May 5, 2000, the grievor filed a request for an investigation with the Public Service Commission (PSC) alleging that his complaints of harassment had not been handled in accordance with the harassment policies of the Department of National Defence (DND) and the Treasury Board of Canada Secretariat. The grievor asked as redress that the respondents be disciplined, that he be provided with a safe workplace for his return to work, and that he be compensated for sick leave, loss of income and benefits resulting from his absence from work. On August 2, 2000, the PSC denied the grievor’s request for an investigation on the basis that the complaints were untimely and, subsidiarily, that the grievor had not provided specific incidents of omission or improper behaviour that would justify the PSC’s intervention.\n\nIn the meantime, a mediation process initiated in June 2000 resulted in a memorandum of understanding signed on October 11, 2000, in which Captain Payne agreed to revisit the grievor’s harassment complaints. On November 9, 2000, Captain Payne informed the grievor that upon re-examining his complaints, there were elements of harassment that may have been present, that he would be asking the respondents to present their views, and that he would concurrently prepare the terms of reference for an investigating team. On January 23, 2001, Captain Payne informed the grievor that, after reviewing the responses, he had decided to proceed with an investigation.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-9", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 28–30", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The investigation was conducted by two outside investigators and centered on the following complaints: (a) that Mr. Martin and Mr. Merlin had failed to afford the grievor due process or closure following a complaint against the grievor, with the result that his health and well-being were affected; and (b) that Ms. Verge had failed to exercise due diligence when she was notified of the grievor’s complaint.\n\nIn a comprehensive report dated May 29, 2001, the investigators found that the grievor’s complaints of harassment were justified. They noted that while there had been no specific intent to harm the grievor, the issue of motive plays no part in a harassment investigation. By failing to address the complaints promptly and to follow departmental harassment guidelines, the grievor had been poorly served by the system intended to address such complaints. The investigators made a series of recommendations, including that the grievor be afforded the opportunity, with the assistance of his physician, to return to his position in the underwater shop or to a similar position in a suitable location. The other recommendations were preventative in nature and focused on education within the organization.\n\nOn July 5, 2001, Captain Payne wrote to Mr. Martin, Mr. Merlin and Ms. Verge, with a copy to the grievor, acknowledging that he had received the investigation report and stating that he would be making his own assessment of it. Mr. Merlin, Mr. Martin and Ms. Verge presented rebuttals to the investigation report.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-10", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 31–32", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On September 12, 2001, Captain Payne wrote three letters to the grievor about his findings and decisions relating to the investigation report. He found that certain allegations were supported, in that Mr. Merlin and Mr. Martin had not afforded the grievor due process. As corrective action, Captain Payne ordered that a “training package tailored to the procedural aspects of the recently promulgated Harassment Prevention and Resolution Guidelines” be designed and that Mr. Merlin and Mr. Martin attend such training. Captain Payne found that the allegations against Ms. Verge were unsupported. Captain Payne stated in these letters that his decision constituted administrative closure to the grievor’s harassment complaint and that, should the grievor not be satisfied, he could avail himself of the grievance procedure.\n\nIn his testimony, Captain Payne stated that he had decided to maintain his earlier conclusions there had been no abuse of the managers’ authority even though the process with respect to Ms. Urquhart had not been handled as well as it could have been. Although there had been some miscommunication, there was no evidence of misconduct or harassment on the part of the managers. In his view, a training package to educate the managers was the most appropriate outcome since there had been no further training relating to workplace harassment since 1995. Captain Payne also testified that, as there was no finding of misconduct on the part of Mr. Martin, the grievor’s immediate supervisor, no consideration was given displacing him in order to allow the grievor to return to his substantive position.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-11", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 33–34", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On January 16, 2002, the grievor filed a grievance at the second level of the grievance procedure alleging that management’s mistreatment of him had caused him to become ill and unable to perform his duties. The grievance was denied at the second level of the grievance procedure on July 31, 2002, and at the final level on December 5, 2002 (received by the grievor on January 13, 2003). The matter was referred to adjudication on February 4, 2003.\n\nOn January 19, 2003, the grievor replied to Captain Payne concerning his response to the grievance at the third level of the grievance procedure. He told Captain Payne that his absence from work was not being taken seriously as a medical issue and that there were existing workplace conflict resolution processes that had not been followed. He alleged that his concerns about the quality of work coming from the submarine shop were not taken seriously and that he did not feel comfortable returning to a new position. He stated that his complaint had not truly been resolved to his satisfaction and, despite Captain Payne’s assurances to the contrary, he had received no closure from the investigation and the grievance process.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-12", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 35–37", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "A mediation process was initiated on September 11, 2003, in an attempt to resolve the grievance. On July 27, 2004, 10 options were proposed to the grievor with a view to resolving his grievance and having him return to work. On March 17, 2006, the employer tendered the same options as its final proposal to the grievor, at the same time advising him that if mediation failed, a recommendation would be made to terminate his employment. Mediation efforts were ultimately unsuccessful. On April 28, 2006, Lorne Brown, President, Federal Government Dockyard Trades and Labour Council East, advised the employer that the grievor had rejected the employer’s final proposal.\n\nOn May 1, 2006, the grievor was advised in a letter by Captain Gilles Hainse (the new commanding officer) that since the issue of his return to work had not been resolved during the March 17, 2006 mediation session, a recommendation would be made to the Rear Admiral to terminate his employment due to medical incapacity.\n\nOn May 24, 2006, Captain Hainse sought the grievor’s consent to contact his physician, Dr. Edwin Rosenberg, in order to update a medical assessment dated November 2, 2004, that had been given to the union. The grievor provided his written consent to disclose this information.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-13", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 38–40", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor testified that he provided his consent for a medical report from Dr. Rosenberg, but that he had been intimidated in the course of doing so. Captain Hainse’s letter of May 24, 2006, requesting the grievor’s consent to disclose medical information had been delivered by two military personnel without giving him prior notification. These persons apparently stated that they would return that day to pick up the signed letter. The grievor stated that the employer had also sought to contact Dr. Rosenberg directly for this information before requesting his consent. The grievor considered this heavy-handed, given that he had always cooperated concerning such matters. On June 30, 2006, the grievor received a letter signed by the Rear Admiral advising him that his employment was being terminated pursuant to paragraph 11(2)(g) of the Financial Administration Act, effective July 14, 2006 (later corrected with the final level reply to read paragraph 12(1)(e) of the Financial Administration Act).\n\nOn July 18, 2006, the grievor filed a grievance disputing the termination of his employment at the third and final level of the of the grievance procedure. On December 13, 2006, the grievance was denied.\n\nThe grievor is presently receiving temporary earnings replacement benefits from the provincial workers’ compensation board.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-14", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 41–43", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor has been in the care of Dr. Edwin M. Rosenberg, a psychiatrist, since July 6, 1999. At the time he consulted Dr. Rosenberg, the grievor had been away from the workplace since the beginning of June 1999. The grievor had previously been diagnosed by his family physician as suffering from a major depressive disorder with symptoms of panic attacks and was being treated by means of regular follow-ups and prescribed medication. Dr. Rosenberg provided considerable background about the grievor’s illness, which is not repeated here, save for what is relevant to the outcome of this decision. Extensive medical documents were filed by consent of the parties, some of which will be considered further in these reasons.\n\nDr. Rosenberg confirmed that the grievor’s ongoing illness and inability to return to work was initially caused by incidents relating to Ms. Urquart and then prolonged by the fact that her harassment complaint remained unresolved during her extended absence. Thereafter, the stress caused by the lengthy and unsatisfactory resolution of the grievor’s harassment complaints amplified his symptoms and further prevented him from returning to work.\n\nDr. Rosenberg’s opinion was that while the grievor was biologically susceptible to depression, that, in and of itself, was not the cause of his current state of health and his prognosis for improvement could be tested only if he was offered the opportunity to return to the workplace. In his view, the grievor could return to work in approximately three months if workplace issues were resolved. Conversely, his symptoms would continue as long as these issues remain unresolved.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-15", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 44–45", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Dr. Rosenberg testified that the opinion he gave on November 2, 2004, about the grievor's ability to work was at the union’s request in view of ongoing discussions with the employer about the grievor’s return to work at that time. On June 2, 2006, prior to terminating the grievor’s employment, the employer requested another opinion as to whether his 2004 opinion remained valid. Dr. Rosenberg confirmed his opinion of November 2, 2004, that the grievor was able to return to work if the employer provided a resolution to the issues that caused his illness and accommodated his return to work. However, having the grievor report once more to the supervisor with whom he had continuing difficulties, demoting him to a lower classification or forcing him to take medical retirement would further contribute to his depression. The grievor is presently undergoing treatment to learn coping mechanisms that allow him to lead a normal life. The grievor would be able to sustain extensive technical retraining, if necessary, to assume a new position without adverse effects. Dr. Rosenberg opined that management training on how to handle the harassment complaints in the workplace that had occurred since the grievor’s absence bode well for his return.\n\nCaptain Hainse was the only witness who testified as to the circumstances of the grievor’s termination. In light of the reasons for my decision, I have given particular attention to his testimony.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-16", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 46", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Captain Hainse became the commanding officer of Fleet Maintenance at Cape Scott in December 2005, and is the commanding officer who recommended the termination of the grievor’s employment. Captain Hainse testified that he had no involvement with the grievor until a few months before his termination. The grievor’s harassment grievance and the details of an ongoing mediation came to his attention at the time that he became commanding officer as part of the “turnover” from his predecessor, Captain Smith. Captain Hainse was told that the grievor’s complaints were long-standing and that many attempts had been made to resolve the issues administratively, including the ongoing mediation process. Captain Hainse participated in the mediation session that took place on March 17, 2006. During the mediation session, he told the grievor that if no agreement was reached about his return to work, a recommendation would be made to terminate his employment based on medical incapacity.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-17", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 47–48", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On April 28, 2006, Mr. Brown, on behalf of the grievor, wrote to Captain Hainse informing him that the employer’s return-to-work proposal was unsuitable. Captain Hainse replied that he would, as a consequence, recommend the termination of the grievor’s employment: I have received a letter dated 28 April 2006 from Mr. Lorne Brown, President of the FGDT&LC(E), advising me that you have rejected the proposal tendered to you at the 17 March 2006 Mediation Session. I regret that we were unable to resolve this issue and as advised at the Mediation Session I have no other recourse but to recommend to MARLANT’S delegated authority for termination, Radm DG McNeil, that your employment be terminated due to your medical incapacity to return to the workplace. You will be advised by Radm McNeil of his decision on this matter.\n\nCaptain Hainse testified that after he found out that the grievor had refused the employer’s proposals, his concern was that the right steps be taken to ensure the fairness of the termination process, including obtaining medical evidence, getting advice from Human Resources and ensuring that the grievor had “due process.”", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-18", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 49", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Captain Hainse was informed by a human resources officer that the grievor’s last medical information had been received in 2004, and was advised that it was necessary to get an update of his medical condition, including a medical release from the grievor. On May 24, 2006, Captain Hainse wrote to the grievor to obtain his consent: By letter dated 1 May 2006, I advised you that I would be recommending your termination due to your medical incapacity to return to the workplace. During the preparation of my recommendation, I noted that the last assessment from Dr. Rosenburg was dated 2 November 2004. This assessment was provided to Mr. Tom Denault, Vice President of the Federal Government Trades and Labour Council (East), in response to a request to review the ‘‘retraining/development plan to support your reintegration to the workplace’’. This plan was developed in consultation with union representatives. At that time, Dr. Rosenburg stated: ‘‘Mr. Pepper is not presently able to perform any of the positions identified for his possible employment, as identified by DND. Should Mr. Pepper be obliged to return to the workplace in his previous employment, or to another work position without resolution of those difficulties which contribute to his medical leave from the workplace, it is my opinion that Mr. Pepper’s depressive symptomatology will continue to be manifested, precluding his effective involvement at the workplace’’… Your lawyer subsequently advised us that you were only interested in returning to your substantive position but with a different supervisor. In the final level reply in the grievance procedure dated 5 December 2002, it stated: ‘‘… the evidence does not support removing the supervisor from that shop’’. This remains the Department’s position.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-19", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 49–50", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I wish to contact Dr. Rosenburg to get an update on your medical condition further to his assessment dated 2 November 2004. I would ask that you indicate your consent, or not, to my contacting Dr. Rosenburg. Please check-off the appropriate block on the second copy of this letter which is enclosed, sign and place it in the self addressed envelope. I will arrange to have this letter picked-up at 1000 hrs on Friday 26 May 2006. If this is not convenient, please contact my assistant … so alternate arrangements can be made.\n\nThe letter was delivered by hand on May 25, 2006, rather than by mail because Captain Hainse was concerned that the grievor might not be available during the summer months, and because it had come to his attention that Dr. Rosenberg was about to take extended leave and would possibly not be available to provide his opinion.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-20", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 51", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On June 2, 2006, Captain Hainse wrote to Dr. Rosenberg asking him to update his medical opinion: I am writing to you seeking confirmation of your medical opinion concerning Mr. Michael Pepper, an employee of Fleet Maintenance Facility Cape Scott. You may recall that in November 2004, you wrote a detailed letter concerning Mr. Pepper's medical status to Mr. Thomas Denault of the Federal Government Dockyard Trades and Labour Council. Around that time, the Department of National Defence was provided a copy of this letter as part of an effort to understand and resolve the issues surrounding his employment. Since then, there have been other efforts to resolve this matter but unfortunately the workplace difficulties involving Mr. Pepper are without resolution. The Department has notified Mr. Pepper, in a letter dated 1 May 2006, that a recommendation has been made to terminate his employment for cause for non-disciplinary reasons. At this time, I am requesting that you confirm whether or not your detailed medical opinions, as outlined in your November 2004 letter, remain valid. Please feel free to provide any comments or opinions that you deem relevant at this time. Mr. Pepper has provided his written consent to release this information to the Department as per the conditions as outlined in his enclosed letter, which was in response to our letter of 24 May 2006, which is also enclosed. Thank you advance for your cooperation in this matter.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-21", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 52–54", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On June 8, 2006, Dr. Rosenberg provided Captain Hainse with his opinion of the grievor’s medical condition: Thank you for your letter of 2 June 2006. I acknowledge receipt of Mr. Pepper's signed consent permitting me to correspond with you; at Mr. Pepper's specific request, copies of this letter will also be forwarded to Mr. Pepper and to Mr. David Mombourquette. As you note, on 2 November 2004, I wrote a letter to Mr. Thomas Denault, in his position as Vice-President of the Federal Government Dockyard Trades and Labour Council East, regarding Mr. Pepper, a copy of which is enclosed for your review. You have specifically asked, in your letter to me of 2 June 2006, that I “confirm whether or not your detailed medical opinions, as outlined in your November 2004 letter, remain valid.” Please accept this letter as confirmation that the opinions offered in my letter report to Mr. Denault of 2 November 2004 remain valid. Further, it remains my clinical opinion that the continuing fact of non-resolution of workplace issues which led to Mr. Pepper's depressive symptomatology continues to place a heavy burden on the augmenting and sustaining of that symptomatology.\n\nAfter receiving Dr. Rosenberg’s opinion, Captain Hainse prepared a recommendation to the Rear Admiral that the grievor’s employment be terminated. Captain Hainse explained in his testimony that the Rear Admiral held the delegated authority to terminate employment. He and Jim Stewart, the senior human resources officer, met with the Rear Admiral and presented him with a three-part briefing note.\n\nThe first part was Captain Hainse’s recommendation in the form of a memorandum that the grievor’s employment be terminated for cause under sections 11(2)(g) and 11(4) (now 12(1)(e) and 12(3)) of the Financial Administration Act.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-22", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 55", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The second part provided a detailed history of the grievor’s career, personal information about his age and family, the circumstances of Ms. Urquhart’s complaint, the grievor’s harassment complaints, details of mediation discussion and exchanges (including the fact that mediation had been unsuccessful), an extract from Dr. Rosenberg’s opinion and a recommendation that the grievor’s employment be terminated “for his inability to report for work because of his illness.” This part was prepared by Ms. Donna Stringer, a labour relations officer, and was approved by Captain Hainse with a few minor changes.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-23", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 56", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The third part was a letter for Rear Admiral McNeil’s signature advising the grievor that his employment was being terminated. I have not reproduced the second part of the briefing note, which is a four-page document, because it contains a great deal of personal information and details what transpired during mediation. However, I reproduce here the first part, Captain Hainse’s recommendation to the Rear Admiral, outlining the reasons for his recommendation to terminate the grievor: 1. Authority to terminate an employee for reasons other than breaches of discipline or misconduct under Section 11-2(g) of the Financial Administration Act has been delegated by the Deputy Minister to the Commander Maritime Forces Atlantic. Termination must be for cause, FAA Section 11(4). 2. On 01 May 2006, I advised Mr. Michael Pepper an Electronic Systems Specialist (SR-EEW-11), employed with the Fleet Maintenance Facility Cape Scott that I would be recommending his employment be terminated due to his medical incapacity to return to work. Treasury Board required confirmation from Mr. Pepper’s attending physician that his medical opinion of 2 Nov 2004 remained valid, which confirmation was received by letter dated 8 June 2006. 3. Mr. Pepper has been absent from work since 1999. Following administrative closure of five harassment complaints in September 2001, the results of which were not acceptable to Mr. Pepper, he lodged a grievance stating he had been mistreated by management since 1997 which caused his illness. The grievance was denied at the Department’s final level of the grievance process by decision dated 05 December 2002. Mr. Pepper subsequently referred his grievance to Adjudication and an offer to engage in mediation was agreed to by the Employer.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-24", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 56", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mediation meetings/sessions have been ongoing since September 2003. During the mediation process considerable efforts were expended to develop a return to work program to accommodate Mr. Pepper in the workplace. Notwithstanding these efforts, the plan was deemed unacceptable by Mr. Pepper. A Briefing Note detailing the chronology of events is enclosed. The most recent mediation session was held on 17 March 2006 where a “final” proposal was tendered to Mr. Pepper. Mr. Pepper was also advised that if mediation failed, a recommendation for termination would be initiated. On 28 April 2006 we were advised by letter from the President of the Federal Government Dockyard Trades and Labour Council (East) that Mr. Pepper rejected the Department’s proposal. Consequently the grievance will be scheduled for Adjudication and we have been advised that Mr. Pepper will grieve his termination and refer to Adjudication and it is expected that both grievances will be heard concurrently at Adjudication. 4. A letter to Mr. Pepper advising him that his employment is being terminated is enclosed for your signature.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-25", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 57–58", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Captain Hainse’s testimony was that after reading the briefing note and asking for a few clarifications, Rear Admiral McNeil signed the letter of termination — the third part of the briefing note — that reads as follows: 3 June 2006 I have reviewed the Commanding Officer Fleet Maintenance Facility Cape Scott, Captain(N) J.G.C. Hainse’s recommendation that your employment be terminated for cause because of your inability to attend work due to medical reasons. You have been absent from the workplace since 1999 and it is regrettable that the considerable efforts expended to develop a return to work program were unsuccessful. As the Deputy Minister’s delegated authority under Section 11 (2) (g) of the Financial Administration Act to terminate employment for reasons other than misconduct, I am terminating your employment effective 14 July 2006. You have a right to grieve my decision in accordance with Article 19 of your collective agreement.\n\nOn December 11, 2006, the grievor wrote to Captain Hainse seeking clarification about the adjudication process and management’s accountability for not resolving his harassment complaints. Captain Hainse replied on January 18, 2007. He referred the grievor to his representative about the adjudication matters and gave him an update on the most recent efforts deployed by the unit to address harassment complaints. He also stated that the informal investigation of Ms. Urquhart’s complaint had been inconclusive and that no report was ever issued.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-26", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 59–60", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In cross-examination, Captain Hainse stated that when he met with the Rear Admiral, he presented him with the information and recommendations in the briefing note. The issues he considered relevant were the many attempts at mediation and at having the grievor return to work. Captain Hainse admitted that the only attempts he was aware of concerning the grievor’s return to work were 10 options and recommendations presented as part of the mediation discussions. He admitted that he had not been involved in the creation of these options and was unaware that they had been prepared as part of mediation discussions in 2004. Captain Hainse was unaware that the exchanges had been on a “without prejudice” basis as part of confidential information exchanged during mediation.\n\nIn response to questions about the grievor’s harassment complaints, Captain Hainse stated that he did not revisit or question Captain Payne’s conclusions concerning the grievor’s complaints of harassment, since his role was not to validate Captain Payne’s decisions. His discussion with Captain Payne involved getting some background information concerning the grievor, his findings and the investigation. Captain Payne had informed the Rear Admiral only that the matter of the grievor’s grievance was going to mediation. Captain Hainse acquiesced that although the briefing note to the Rear Admiral mentioned the investigation into the grievor’s complaints of harassment, it did not contain the findings or recommendations of the investigators or what Captain Payne had said about the report.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-27", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 61–62", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Captain Hainse admitted that he relied on Ms. Stringer for the information contained in the briefing note, and in particular paragraph 14 concerning the mediation process and the options presented to the grievor. Captain Hainse said that he was present at the mediation session on March 27, 2006. His decision to recommend the termination of the grievor’s employment, should mediation be unsuccessful, rested on the fact that mediation had been ongoing for quite some time and that the employer’s proposals had not produced any results. He conceded that he did not explore any other options about continuing the grievor’s employment after mediation was unsuccessful. The only information he obtained before making his recommendation to the Rear Admiral was an update of the grievor’s medical condition. He did not consider getting other medical information.\n\nWhen asked about the urgency of recommending the termination of the grievor’s employment, Captain Hainse responded that this decision had been long overdue. Mr. Cormier had told him that the grievor was sick and could not return to work. During the last phase of mediation there appeared to be no possible prospect of the grievor’s return to work. All the options had been presented during the mediation process. The fact that the grievor’s “issues” remained unresolved was not good for the morale of the unit. He was concerned about the grievor’s dedication to his work as the grievor did not appear to want to resolve workplace issues. Captain Hainse was concerned that if such workplace issues were not dealt with, other employees would perceive a lack of leadership that would affect the efficiency of the unit. He admitted there had been no complaints from other employees about these concerns or the grievor’s absence.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-28", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 63–65", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Captain Hainse also explained that when he received his command, he went through a transition period with Captain Smith. He was briefed in preparation for the mediation session of March 17, 2006, by a human resources officer. He testified that he was unaware of the reasons why mediation had been delayed for a period of time between 2003 and 2006, other than the lawyer representing the employer had been absent on extended leave and had eventually been replaced. He was unaware that mediation had also been delayed because of changes in command at Cape Scott. He was also unaware that the grievor was being compensated for a workplace injury rather than long-term disability as he thought.\n\nCaptain Hainse asserted that the termination of the grievor’s employment had been handled “by the book” in light of the grievor’s complaints about management’s mishandling of the harassment investigation. In his mind, there was reasonable cause for the grievor’s termination and he had acted on it based on the employer’s termination policy: “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance.”\n\nCaptain Hainse acknowledged that he had discussed the ongoing mediation with Mr. Cormier sometime between December 2005 and March 2006, but he could not recall the details. He was concerned that there had been many attempts at mediation and at having the grievor return to work, but with no results. Captain Hainse said that the briefing note had been prepared by a labour relations officer following his instructions and that the officer had taken the initiative to include the information concerning exchanges during the mediation process to complete the briefing note.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-29", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 66–68", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As the grievor proceeded first in this matter, his arguments are presented first.\n\nThe grievor argues that his harassment grievance is based on article 5 of the collective agreement — “Managerial Responsibilities” — and is in keeping with a developing line of jurisprudence that an employee may grieve harassment by the employer, as held in Toronto Transit Commission and A.T.U. (Stina) (2004), 132 L.A.C. (4th) 225. Even though the collective agreement may be silent about human rights violations, there is an implied duty of care to ensure the psychological safety of employees, that prevents management from exercising its rights in an abusive manner.\n\nThe courts have also held that if the essential character of the dispute arises from the interpretation, application, administration or violation of the collective agreement, the matter falls within the jurisdiction of the arbitrator (Ferreira v. Richmond, 2007 BCCA 131). The courts have also favoured the dispute resolution process set up under the collective agreement or legislation where it provides effective redress and serves the essential character of the dispute (Pleau (Litigation Guardian of) v. Canada (Attorney General), 1999 NSCA 159). The alleged misconduct of a supervisor toward an employee should be addressed at adjudication as held in Oliver v. Severance, 2007 PESCAD 2.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-30", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 69–70", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In addition, the grievor argues that the employer’s decision about his harassment complaint was flawed and should be set aside for reasons similar to Tucci v. Canada (Revenue, Customs, Excise and Taxation), 1997 CanLII 4875 (FC). In that case, the Federal Court set aside the decision of an investigator designated under the Public Service Employment Act because his reasons did not demonstrate that he had directed his mind to the alleged abuses of authority before him in reaching his decision. It was not sufficient for the employer to have noted the absence of malicious intent; it also had to bear in mind that decisions made by the grievor’s supervisor, other managers and the human resources officer did not follow departmental policies. This grievance alleges that the employer disregarded the recommendations of an official investigation team and gave no importance to the lack of cooperation of certain key managers. These actions constituted further harassment of the grievor. The employer’s remedy to institute a corporate training package was of no assistance in resolving the grievor’s dispute.\n\nIn these circumstances, an adjudicator must have the jurisdiction to adjudicate a grievance regarding the breach of employer policies designed to protect the rights of employees, such as the MARLANT policy declaration on good working relations that was in effect at the time of the grievor’s complaint.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-31", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 71–72", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor argues that the employer’s failure to follow due process in resolving his harassment complaint should form the basis for further damages, as held in Toronto Transit Commission. The grievor requests an award of compensation, beyond the mere loss of salary, because the employer’s actions have had a long-lasting impact on the grievor’s career and benefits and have aggravated his medical condition. The grievor requests that I exercise my jurisdiction under the Canadian Human Rights Act and make an award of general damages for the harm done to him.\n\nThe grievor argues that the employer’s decision to terminate his employment fails to take into consideration the duty to accommodate his mental disability to the point of undue hardship as required by the Canadian Human Rights Act. The grievor further argues that the decision to terminate his employment was based on irrelevant and inadmissible considerations, including discussions that took place during the mediation process.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-32", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 73–75", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer’s offer to accommodate was limited to options contained in a document produced during the mediation process. To return to work, the grievor needed to resume his former job without his former supervisor, Mr. Martin, whom the grievor alleges was the cause of his psychological condition. This was the conclusion of the grievor’s psychiatrist and was specifically requested by the grievor. Yet, the employer did not ask Mr. Martin whether he was prepared to change positions, even though Mr. Martin had made it known that he would no longer be comfortable supervising the grievor. The employer preferred to back its supervisor’s actions during this dispute and never considered this option. That position, argues the grievor, is fatal to the employer’s position that it attempted to accommodate the grievor.\n\nThe grievor takes the position that discussions during the mediation process are confidential and cannot be the subject of a subsequent adjudication. The discussions were not kept confidential; they were relayed to several persons outside the mediation team and used as a basis for terminating the grievor’s employment. The termination is, therefore, unfounded because it is based on inappropriate considerations.\n\nThe grievor argues that he had been promised closure by Captain Payne concerning Ms. Urquhart’s complaint, yet the issue of the investigation into his harassment complaints, his grievances and the mediation process come up again as part of the considerations for the termination of his employment. The briefing note does not state that the investigation report upheld his complaints or that Captain Payne subsequently decided not to sustain the findings of the investigation report.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-33", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 76–77", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The briefing note goes into great detail about the proposals discussed during mediation and places the blame on the grievor for the failure of the mediation process because he rejected the employer’s proposals. These facts were prejudicial to him because the Rear Admiral had no other context but the briefing note to assess the reasons he was not returning to work. The briefing note does not state that much of the delay during the mediation process was attributable to the unavailability of the employer’s counsel, the change of command or the shortcomings of the return-to-work proposals. The facts are selective and certain of them are untrue, for example, his being unavailable to attend mediation in January 2004 because of illness and his undertaking to provide a counter-proposal in January 2004. The grievor argues that none of these facts or the options proposed should have been in the briefing note. The Rear Admiral’s reliance on the incomplete and misleading facts in the briefing note should make the decision void ab initio.\n\nThe grievor further argues that the termination of his employment is illegal because the employer failed to follow DND termination procedures provided in its policy: “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance.” There was no proper medical assessment nor was there a discussion with the employee about other options as required before deciding on termination. The employer disregarded proper procedures to terminate his employment just as it disregarded proper procedures to deal with his harassment complaints.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-34", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 78–81", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer did not try to accommodate the grievor up to undue hardship. No evidence was presented that accommodating his return to work would result in financial hardship, that his absence disrupted the employer’s operations or had an impact on the morale and work performance of other employees.\n\nThe grievor suggests that termination was a “done deal” even before the mediation session of March 17, 2006. The employer proceeded callously by sending military personnel to deliver a letter to his home and trying to obtain a medical opinion from his psychiatrist without his consent.\n\nThe grievor asks that the dismissal be overturned and that he be reinstated with full seniority and compensation. He further asks that I exercise my discretion under section 226(g) of the PSLRA and award damages in the amount of $20,000 for his pain and suffering as a result of this ordeal and the violation of subsections 52(1)(b) and 53(2)(e) of the Canadian Human Rights Act. The grievor argues that the termination of his employment was discriminatory and that the employer was aware that its decision would cause him harm. Furthermore, the employer acted recklessly in not considering accommodation.\n\nIn support of the confidentiality of the mediation process, the grievor cited the following cases: Rogacki v. Belz, 2003 CanLII 12584 (Ontario Court of Appeal); Rudd v. Trossacs Investments Inc., 79 O.R. (3d) 687 (Ontario Superior Court of Justice – Divisional Court), and the following case concerning the final effects of mediation, Skandharajah v. Treasury Board (Employment and Immigration Canada), 2000 PSSRB 114.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-35", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 82–83", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer argues that, unlike the private sector, the jurisdiction of an adjudicator flows from the PSSRA (as it applied at the time) and not from the collective agreement itself. Sections 91 and 92 of the PSSRA and sections 208 and 209 of the PSLRA provide a broad right to grieve. On the other hand, the right to adjudication is limited to three issues. Harassment not being one of these issues, the grievance cannot be referred to adjudication.\n\nThe grievor’s argument that his right to refer his grievance to adjudication can be found in the management rights clause in the collective agreement is flawed as it is contrary to precise statutory provisions that govern the federal public sector. Toronto Transit Commission stems from a completely different legislative setting. Moreover, section 96(2) of the PSSRA prevents an adjudicator from amending the collective agreement. Bratrud v. Office of the Superintendent of Financial Institutions Canada, 2004 PSSRB 10, is a case in point. In that matter, the grievor alleged that her performance appraisal constituted personal harassment. The collective agreement contained a specific clause protecting employees against personal harassment, which in turn provided the adjudicator with jurisdiction to hear the complaint. The cases of Canada (Attorney General) v. Lachapelle, [1979] 1 F.C. 377, and Baril v. Canada (Attorney General), [1980] 1 F.C. 55, rejected the notion that a disciplinary letter could be referred to adjudication based on the same principle, that is, that to be adjudicable, a specific right must exist in the statute.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-36", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 84–86", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Furthermore, the grievor also brought the same complaint before the PSC, which was the proper forum for this type of complaint. That complaint was rejected. If the grievor was not satisfied with this decision, he could have challenged it in another forum. It is not because the grievor was told that the filing of a grievance may be more appropriate that this grievance may be referred to adjudication. An adjudicator does not have jurisdiction over a grievance that alleges that the employer did not follow its policies. The factual substance of the grievor’s claims fell under the exclusive authority of the PSC as held in Adams v. Cusak, 2006 NSCA 9.\n\nIn the alternative, the employer argues that the grievance is without merit. Captain Payne’s disagreement with the conclusions of the investigators is not improper, as it was within his right and duty as reviewing officer to make this decision. There is no evidence of bad faith, or that he made his decision based on any improper purpose. He agreed that managers had made errors, but that these errors did not constitute harassment of the grievor. The fact that certain managers did not participate in the investigation process does not vitiate the entire process.\n\nThe employer disagrees that not following the harassment policy is in itself harassment. It is up to the responsible officer to determine whether there was harassment. The issue was dealt with by the PSC and again through the grievance procedure. Both these processes concluded that the grievor had not been subject to harassment.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-37", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 87–89", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer argues that Scheuneman v. Canada (Treasury Board), [2000] 2 F.C. 365, is authority for the principle that a grievor must be able to return to work within a reasonable period of time and that any leave is of a temporary nature. The employer is entitled to act on the medical information that it has. Whether the illness or the disability was caused by the workplace is not relevant. The grievor’s psychiatrist concluded that the grievor could not return to work unless his issues were resolved. This medical conclusion does not support returning an employee to work with accommodation. That the grievor’s issues be resolved to his satisfaction is not an accommodation issue and equates with an employee not being able to return to work in the foreseeable future.\n\nTo accept the grievor’s statement that he cannot return to work until all his issues have been resolved is akin to forcing the employer to agree with a grievor’s position. The grievor’s testimony is that there has been no closure as a result of the administrative processes and that even the adjudication process may not bring him closure. The subject of closure does not form part of any duty to accommodate. The duty to accommodate cannot be seen to imply the satisfaction of all of an employee’s concerns.\n\nThe employer argues that the termination of the grievor’s employment was the only reasonable conclusion under the circumstances in a case where an employee has been absent from work for an extended period of time and his return to work is unlikely in the foreseeable future (Brown and Beatty, para. 7:60000). The grievor has not made a case for exemplary damages. If this is a workplace injury, then the grievor is covered by a compensation plan for such injury.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-38", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 90–93", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer submits that it would be inappropriate to remove the grievor’s immediate supervisor from his position, as it did not find that the supervisor had harassed the grievor. Were the employer to remove the supervisor without his consent, it would be open to a complaint from a blameless supervisor who acted on the basis of the information available to him at the time. Moreover, the adjudication process provides the means of curing any shortcomings with respect to the employer’s decision.\n\nThe employer also submits that there will always be a difficulty when a mediation process does not resolve a dispute and the matter then comes to adjudication. The employer is in the difficult position of not being able to put forward what was proposed to the grievor during the mediation process. The employer takes the position that as a representative of management it was appropriate to apprise the Rear Admiral of what had occurred during the mediation process. In this case, the briefing note set out the failure to reach an agreement and the decision to proceed to termination as a result. However it was also relevant that the grievor had not been in the workplace for seven years and no return to the workplace was foreseeable.\n\nThe employer submits that just because options were examined in the context of mediation, they should not be excluded from the employer’s considerations in making a decision thereafter. In this case, these considerations should not be allowed to vitiate its decision to terminate.\n\nThe grievor replies that mediation discussions are without prejudice and that is the reason why they are not disclosed. The grievor disagrees that the Rear Admiral was entitled to mediation information simply because he is part of management and that he could act on that information.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-39", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 94–95", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor takes issue with the employer’s position concerning the removal of the supervisor, because this avenue was never considered.\n\nThe grievor responds that the employer has taken a too narrow approach to the legislation and has not considered how Toronto Transit Commission has changed this evolving area of the law and the scope of an arbitrator’s jurisdiction. The grievor urges me to give careful consideration to the broad principles of this case and how it can be applied to the grievor’s harassment grievance. The employer should be held to the standard of its declared policies as these policies concern the application of the collective agreement. But for the employer’s actions, the grievor would not have left work and he argues that damages are owed on this basis.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-40", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 96", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As the harassment grievance was filed on January 16, 2002, the Public Service Staff Relations Act is the applicable statute with respect to this grievance. The PSSRA defines not only how the adjudication process is to be carried out by the Board, but the subject matter of an adjudicable dispute. Section 92 of the PSSRA is very specific as to what type of grievance can be referred to adjudication: 92. (1) Where an employee has presented a grievance up to and including the final level in the grievance process, with respect to (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, (b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4), (i) disciplinary action resulting in suspension or a financial penalty, or (ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty, and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-41", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 97", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The jurisdiction of an adjudicator appointed under the PSSRA with regard to the federal public sector differs significantly from the broad jurisdiction conferred, for example, upon arbitrators appointed under the Canada Labour Code, which provides as follows: 57. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention. 60. (1) An arbitrator or arbitration board has (a.1) the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement; [Emphasis added]", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-42", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 98", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As my jurisdiction is precisely defined in the legislation, I am not empowered to consider any other source, even though the applicable collective agreement may appear to create collateral rights. The case of Lachapelle decided by the Federal Court of Canada is decisive on this point: It is clear that consideration must first be given to the source of an employee's right to submit a grievance to adjudication by respondent Board, or more specifically, by an adjudicator or a board of adjudication acting within the framework of the rules established by the Board. There is no doubt as to the reply. This system of adjudication is established by the Public Service Staff Relations Act, which makes the Board that it has created responsible for supervising its implementation. The source of the employee's right to make use of the adjudication procedure, and consequently the source of the power of the Board, or of the adjudicator that it designates to hear a grievance that is submitted to it, may therefore only be found in this Act. Section 91 of this Act specifies exhaustively when a grievance may be referred to adjudication, and does not empower anyone to decide otherwise: it is therefore the Act alone that must be considered. This reasoning may appear simplistic, but it is nevertheless worth stating in order to rebut in advance any attempt to look elsewhere than in the Act, such as in the applicable collective agreement, and specifically in article 9.23 of the said agreement, which concerns the grievance and adjudication procedure, for the source of the employee's right and consequently of the jurisdiction of the Board or the adjudicator.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-43", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 98–99", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In fact, respondent adjudicator quickly dismissed the argument to this effect made before him and counsel for the mis-en-cause did not press it in this Court. I will spend no more time on this point: the parties in their agreement could not claim to stipulate contrary to what Parliament has prescribed in section 91 of the Public Service Staff Relations Act concerning the right of an employee to make use of the adjudication procedure.\n\nThe grievor’s claim of alleged mistreatment is not a grievance relating to “disciplinary action resulting in discharge, suspension or a financial penalty.” Nor does a claim for lost costs, benefits and damages transform an unadjudicable grievance into an adjudicable one.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-44", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 100–102", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I disagree with the grievor that my jurisdiction should be interpreted broadly as suggested in Toronto Transit Commission. The grievor’s submission is that his grievance relates to the interpretation of the collective agreement because it alleges that the employer improperly applied management policies. While the employer assumes a duty in the collective agreement to treat its employees equitably according to its policies, no enforceable duty is created by the existence of this clause. An unsatisfied employee’s only recourse, where the employer has not followed its own policies, is the grievance procedure or another statutory scheme, as the case may be. In matters of harassment, the PSC is the appropriate forum to obtain effective redress for this type of complaint. If the PSC dismisses a complaint, the appropriate recourse for a review of that decision is the Federal Court, not this Board. It should be noted that under section 7.5 of the Public Service Employment Act, R.S., 1985, c. P-33, the PSC had the broad remedial authority to order a deputy head to take appropriate corrective action, should this have been its determination.\n\nFor these reasons, I am without jurisdiction to resolve this grievance.\n\nThe termination of the grievor’s employment raises two issues: (a) the use of confidential information obtained during the course of mediation, and (b) the employer’s duty to accommodate a disabled employee.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-45", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 103–105", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor alleges that the termination of his employment was based on information exchanged during the mediation process, including that mediation was reported to have failed because he would not accept certain employer proposals to bring him back to work. The grievor argues that the information provided in the briefing note, which the Rear Admiral relied upon to make the decision to terminate, was prejudicial to his interests. To this, the employer has responded that the Rear Admiral, as a member of management, was entitled to know about the mediation discussions and, regardless of discussions that took place at mediation, the decision to terminate the grievor was based on the fact that there was no reasonable expectation that he would return to the workplace in the foreseeable future.\n\nBefore examining the validity of these arguments, an understanding of the principles of the mediation process as it applies to the resolution of workplace disputes is required.\n\nThe mediation of workplace disputes is well recognized as offering a better opportunity to search for a mutually acceptable outcome than does grievance arbitration. In comparison with arbitration awards that result in grievances being sustained or denied, mediation allows and even encourages more cooperative problem-solving than that which occurs during an arbitration hearing. It is also generally accepted that the quality of the grievance outcome is enhanced when it is mutually agreed upon by the parties rather than imposed by an outsider. Furthermore, this type of dispute resolution is well known to foster improved longer term cooperation.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-46", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 106–107", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mediation would not survive long if parties were not prepared to accommodate each other by exchanging available information in order to explore settlement possibilities. Thus, the adoption and use of mediation requires a mutual commitment to greater cooperation in handling disputes given the usual adversarial roles of the parties and the concomitant expectations of the parties’ respective constituents. This cooperative approach is one of the key reasons for mediation’s success. Not only does it reflect the motivation and attitude of the parties, but it also rests on the sense of trust that must develop during the process.\n\nOne of the elements that contributes to the sense of trust between the parties during mediation is the confidentiality of the process. In fact, most participants take the confidentiality of the mediation process for granted. Confidentiality is also an express condition of an agreement to mediate. Confidentiality means that only the participants and persons with the authority to resolve the dispute in the final instance will know about the details of the mediation. Confidentiality is important because, from the litigant’s perspective, very personal information and career decisions may arise during discussions. From counsel’s perspective, the possible effect of mediation on future litigation is an important consideration in how much can be revealed during discussions.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-47", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 108–109", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "These issues explain how trust between the participants themselves and the mediator are at the core of the process. The very existence of the dispute may make the participants distrustful of each other. Participants will disclose important and personal information only where the mediator has been able to establish a trusting and safe environment. The important and personal information disclosed to the mediator during caucuses, which in turn assists the mediator in resolving the dispute based on the parties’ interests, needs, wants and desires, is also a vital part of the resolution process. Without the guarantee that information disclosed is confidential, mediation will not be productive.\n\nAs well, parties will hesitate to engage in settlement negotiations if something they say during mediation can later be used against them in another process. With the assurance that their discussions are confidential, parties are more likely to willingly discuss all matters and propose offers of resolution to settle their dispute. It is useful to note that courts have traditionally declared offers to compromise disputed claims or settlement proposals as inadmissible for the purpose of determining liability based on a policy of favouring settlements and giving little weight to proposals that do not end in a settlement. Arguably, a similar rationale should apply to the mediation process. Counsel and mediators alike rely on this rationale to ensure a confidential setting.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-48", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 110", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The following quotation aptly summarizes the reasons confidentiality is essential to the mediation process: The mediator encourages the parties to be candid with the mediator and each other, not just about their willingness to compromise, but also and especially about the needs and interests that underlie their positions. As those needs and interests surface, the possibility of finding a satisfactory resolution increases. The parties will be wary and guarded in their communications if they think that the information they reveal may later be used outside of the mediation process to their possible disadvantage. When they have resorted to mediation in an attempt to settle pending or threatened litigation, they will be particularly alert to the possibility that information they reveal to others in mediation may later be used against them by those others in that, or other, in litigation. The parties may also be concerned that their communications might be used by other adversaries or potential adversaries, including public authorities, in other present or future conflicts. The possibility of prejudice to legal rights, or of exposure to legal liability or prosecution, may not be a party’s only concern. Parties may also be concerned that disclosure of information they reveal in the mediation process may prejudice them in commercial dealings or embarrass them in their personal lives. Accordingly, mediation works best if the parties are assured that their discussions with each other and with the mediator will be kept confidential. (Owen Gray, “Protecting the Confidentiality of Communications in Mediation” (1998), 36, Osgoode Hall L.J. 667 at 671)", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-49", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 111–112", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Another consideration in favour of the confidentiality of the mediation process is the mediator’s neutral role. As an impartial third party, the mediator facilitates communication and discussions as part of the negotiation and ultimately the implementation of an agreement. Were the mediator required to disclose what happened at mediation other than the fact that the parties were in attendance, his role would be seriously compromised. The one-sided disclosure of mediation discussions by one of the parties compromises this neutral role.\n\nConfidentiality during the mediation process has also been viewed as part of the legal concept of privilege that protects against the disclosure of evidence at a hearing or trial. Generally, the privilege involves parties in a relationship that prohibits the disclosure by one party of information revealed by the other. Privileges have been created by law to protect the sanctity of certain relationships built upon trust and the need for protected disclosure. Examples of privileged relationships are those between lawyer and client, doctor and patient, and in a labour setting, union steward and grievor.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-50", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 113", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The fact that communications take place in a confidential relationship is not the sole test for applying the legal concept of privilege. In order to determine whether communications in a confidential relationship should be protected from disclosure, Wigmore proposed that communications be tested against four conditions: (1) The communications must originate in a confidence that they will not be disclosed. (2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. (3) The relation must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. (See Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Butterworths, 1992 at page 629)", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-51", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 114–115", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The conditions of the Wigmore test can usefully be applied to the different aspects of the mediation relationship. In their opening statement, mediators describe the mediation to the parties as confidential and usually require that a mediation agreement be signed prior to the commencement of mediation. Thus the first part of the test is met. The closed and private nature of the mediation process and the general acceptance that disclosure to the mediator should be in confidence clearly meet the second and third conditions of the test. The fourth part of the test is usually the more problematic one as it requires a balancing of the public interest in disclosure against the public interest in preserving the confidentiality of the relationship that is being put to the test. In Rudd v. Trossacs Investments Inc., the court concluded that the confidentiality of the mediation process is an important public interest and should outweigh the interest in compelling the evidence of a mediator. In the court’s view, the confidential information sought by the parties was not the only available evidence and the intention of the parties was the important point of whether they had concluded an agreement.\n\nThis being said, the courts have recognized the importance of the confidentiality of mediation where there is a statutory or an agency rule that encourages or mandates settlement discussions as was the case in Rogacki v. Belz.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-52", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 116–118", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Privilege in the mediation context, however, is different from other privileged relationships that usually consist of two parties and where the privilege is held by the client or patient in that only that person can waive the privilege. In work-related disputes, there are usually more than two individuals who participate in mediation. Does the privilege attach to the mediator, or are the parties able to waive it? If the privilege is to be waived, must all parties agree? Another difference is that in most cases, except in the case of the union steward-grievor relationship, a relationship exists between a licensed or regulated professional and a client. However, mediation is not a regulated profession and, the issue then becomes whether just any party can assert a privilege to preserve the confidential nature of the information disclosed during mediation.\n\nIn R. v. Gruenke, [1991] 3 S.C.R. 263, Chief Justice Lamer observed that a prima facie protection for solicitor-client communications was based on the fact that these communications were inextricably linked with the effective operation of the legal system. Likewise, on the ground of a similar public policy, there is an arguable case for a prima facie protection of communications exchanged during mediation where these communications are linked with the effective operation of an adjudication process recognized by statute.\n\nContractual confidentiality raises other issues. Whether the disclosure of confidential information has occurred or whether it is being requested will require the adjudicating body to weigh the issues stated earlier with the harm resulting from the disclosure. Where the confidentiality agreement has been breached and harm ensues, the adjudicating body will need to create an effective remedy.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-53", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 119", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "These policy considerations about the mediation process are particularly relevant to the federal public service workplace because of recent amendments to the legislation. On April 1, 2005, the Public Service Labour Relations Act (‘‘PSLRA’’), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Section 13 of the PSLRA now stipulates that part of the Board’s mandate is to provide mediation services: 13. The Board’s mandate is to provide adjudication services, mediation services and compensation analysis and research services in accordance with the Act.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-54", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 120", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As set out in the Preamble to the PSLRA, mediation has become a key element of the Board’s statutory mandate and recognized as a means to good labour-management relations. The goal of encouraging the settlement of disputes is based on providing litigants with more satisfying and appropriate procedures and outcomes, while preserving ongoing relationships and responsibility: Recognizing that the public service labour-management regime must operate in a context where protection of the public interest is paramount; effective labour-management relations represent a cornerstone of good human resource management and that collaborative efforts between the parties, through communication and sustained dialogue, improve the ability of the public service to serve and protect the public interest; collective bargaining ensures the expression of diverse views for the purpose of establishing terms and conditions of employment; the Government of Canada is committed to fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment; the Government of Canada recognizes that public service bargaining agents represent the interests of employees in collective bargaining and participate in the resolution of workplace issues and rights disputes; commitment from the employer and bargaining agents to mutual respect and harmonious labour-management relations is essential to a productive and effective public service;", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-55", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 121–122", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Under the PSLRA, mediation is a voluntary process. The voluntariness of the process, however, should not detract from the fact that the participants must be able to have confidence in its integrity. Contrary to the Board’s arbitration and adjudication functions, there is no precise regulatory or statutory framework for the Board’s mediation function. Accordingly, the integrity of the mediation process must be seen to rest on recognized public policy considerations that led the law-makers to include mediation as a preferred method of dispute resolution as part of the legislation. If these important public policy considerations are not recognized as part of the dispute resolution process, the parties will develop a perception that mediation is just an empty gesture and the goals of efficiency and quality improvement to the adjudication process will be all but lost.\n\nThe administration of the mediation process also affects the credibility of the Board’s processes. If the Board does not preserve the confidentiality of the mediation process, it is difficult to see how participants can be open and frank in their settlement discussions. An allegation of a breach of confidentiality flowing from the mediation process or a motion to the Board asking that settlement discussions be disclosed must be decided in light of whether the conduct or request impedes the policy goal of effectively and fairly resolving disputes.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-56", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 123–124", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The issues raised in the Rogacki and Rudd cases are different from the issues raised by the grievor in this case. In Rogacki, the issue was the availability of a contempt order against a party who had published the content of confidential discussions during mediation. The Court of Appeal for Ontario held that such an order was not available. In Rudd, the issue was the compellability of the mediator to give evidence in determining the terms of a settlement agreement. The same court decided that the public interest in maintaining the confidentiality of the mediation process outweighed the interest of the parties in compelling the evidence of the mediator. Rogacki reviews at some length the importance of protecting confidentiality as part of the mandatory mediation process, whereas Rudd takes the approach of applying the Wigmore test to determine whether the communications during mediation were privileged.\n\nWhile these two cases provide a sound review of the public policy issues inherent in maintaining the confidentiality of the mediation process, they do not address the precise points brought up by this grievance, that is, the scope of confidentiality during the mediation process and, if confidentiality is deemed to have been breached, its effect on the termination of the grievor.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-57", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 125", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor, his representatives, the employer’s representatives and the mediator signed an agreement to mediate on September 11, 2003. Among the clauses contained in the agreement are the following: By signing this document the parties undertake to conduct this mediation process in good faith and in a forthright manner, and to make a serious attempt to resolve the outstanding matters. The parties wish to mediate these matters in accordance with the following terms: all information exchanged during this entire procedure shall be divulged on a without prejudice basis for the purposes of settlement negotiations and shall be treated as confidential by the parties and their representatives subject to the requirements of any statute and the need to protect individuals against physical harm. Furthermore, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the mediation; it is understood that in order for mediation to work, open and honest communications are essential; it is recognized that the mediation process is voluntary, and may not be terminated by the mediator or the parties at any time; the mediator is free to caucus with the parties individually, as he or she sees fit, to improve the chances of a mediated settlement. Any confidential information revealed to the mediator by one party during such caucusing may only be disclosed to the other party with the former party’s express permission.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-58", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 125–127", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "It is understood that any of the parties may request at any time to caucus, with or without the mediator; in order to ensure the confidentiality of the process it is understood that any notes prepared or written by the mediator shall be destroyed; the mediator shall only report to the Board whether there has been a full settlement or not; any memorandum of settlement reached by the parties shall not be placed on any Board file, nor shall its terms be disclosed unless the parties otherwise agree; [Emphasis added]\n\nThese paragraphs of the agreement leave no doubt that the parties wished to assure themselves and the mediator of the protection of information disclosed during the mediation process that settlement discussions would be confidential. In fact, the major part of the agreement focuses on confidentiality and communication during the mediation process. I am therefore satisfied that, in this case, there existed a mediation privilege that met all the conditions of the Wigmore test.\n\nThe mediation agreement dated September 11, 2003, was introduced as part of the grievor’s evidence through the cross-examination of Captain Hainse. The employer did not object to its introduction. The following signatures appear on behalf of the grievor: Mr. Mombourquette, the grievor’s counsel who appeared during these proceedings, the grievor and an unidentified signature. The following signatures appear on behalf of the employer: Al Cormier, G. Beaudet, Tracey Lyall, and Captain Smith. There were no questions concerning this document. The grievor simply asked me to consider it as part of its argument concerning the confidentiality of mediation and the fact that the termination of his employment had been based on improper considerations.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-59", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 128", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to the agreement to mediate, the information obtained during the mediation process was to be limited to a select group of persons who agreed to respect its confidentiality. Apparently, the employer’s representatives did not take their undertaking as seriously as they should have, nor did they apprise Captain Hainse of this agreement when he participated in the last mediation session. Mr. Cormier discussed and gave his opinion about the grievor’s medical condition to Captain Hainse. Captain Smith gave his opinion about the lack of results about a now-lengthy mediation process. Ms. Lyall, who was the manager of human resources, apparently communicated sufficient information to Ms. Stringer, another human resources officer who does not appear as having been present at the mediation, to allow her to prepare a detailed briefing note for the Rear Admiral. In addition, Mr. Stewart, Ms. Stringer’s supervisor, was also apprised of mediation information since he participated in the discussions with Captain Hainse and Rear Admiral McNeil about the termination of the grievor’s employment.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-60", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 129", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "As a consequence of the breach of confidentiality during the mediation process, the employer evidently relied upon key information that should not have been relevant to its recommendation to terminate the grievor’s employment: Dr. Rosenberg’s medical opinion to the union dated October 25, 2004 about the grievor’s medical condition and return to work prognosis: without this information, the employer could not have asked for an “update” and would have had to consider independent and current medical information before terminating the grievor. The back-to-work opportunities that were developed during the mediation process (the 10 options): without this information, the employer would have had to examine and present specific options to the grievor in view of accommodating his return to work (see next section of these reasons). Dr. Rosenberg’s assessment of the grievor’s aptitude to undertake proposed back-to-work opportunities: this assessment given in 2004, was neither requested nor updated in Dr. Rosenberg’s opinion given on June 6, 2006. The grievor’s wish to work with a different supervisor: this consideration would not otherwise have been known to the employer and should not have influenced a decision not to offer the grievor an accommodation opportunity before terminating his employment. The grievor’s decision not to accept the proposed back-to-work opportunities: the employer anticipated and precipitated the grievor’s decision by giving him an ultimatum on the last day of mediation. This ultimatum was used as a justification to terminate of the grievor’s employment.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-61", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 129–130", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The participation of the grievor’s spouse in the mediation process: the briefing note states that the ultimatum was presented to the grievor’s spouse as it was presented to the grievor and his representatives. This consideration is not only immaterial but a most egregious breach of the grievor’s right to the confidentiality of her role during the mediation process. The length of and the apparent lack of progress of the mediation process: these considerations were irrelevant to the employer’s termination process.\n\nIn order to determine whether the employer had other independent evidence that would otherwise support a recommendation to terminate the grievor’s employment, I read the briefing note while redacting the portion concerning the details of the mediation. This exercise yielded the following information: the grievor’s work background (paragraph 3); the grievor’s harassment complaints, their outcome and the fact that a grievance was filed on January 17, 2002 (paragraphs 4 to 13); the fact that Treasury Board requires a current medical opinion from the grievor’s physician (paragraph 15); the physician’s medical opinion which is summarized as follows: “ that the non-resolution of workplace issues which led to Mr. Pepper’s symptomatology continues to place a heavy burden on the augmenting and sustaining of that symptomatology” (paragraph 15); that the grievor has been receiving worker’s compensation benefits since 1999 (paragraph 16).", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-62", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 131–132", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Without the key information obtained during mediation discussed earlier, the above information is insufficient to motivate the termination of the grievor’s employment. The medical information is a case in point. In his opinion to the union on November 2, 2004, Dr. Rosenberg states among other things that the grievor is in a position to return to the workplace within three months if workplace issues are resolved; he also states that the grievor could sustain extensive retraining with little impact on his health. These two essential points concerning the possibility of the grievor’s return to work were not put forward in the briefing note to the Rear Admiral.\n\nIt is also my view that the following statements in the briefing note to the Rear Admiral regarding the outcome of the mediation process were prejudicial to an independent review of the reasons for the termination of employment: “Protracted mediation efforts failed on 28 April 2006 without a potential return to work solution or a voluntary severing of the employment relationship.” (paragraph 1) “Mr. Pepper and his representatives (legal council (sic), union and spouse) were advised that if mediation were unsuccessful a recommendation would be made to terminate his employment.” (paragraph 1) These two statements imply that the grievor was at fault for the length and failure of the mediation process and that the grievor knew and had accepted the consequences of the termination of the mediation process and consequent loss of employment.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-63", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 133–135", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In light of these observations, it is clear that the employer did not treat the mediation process as a means of resolving the precise dispute for which it had been set up (PSSRB File no. 166-02-31912), namely the harassment grievance. Rather the mediation process was confused as merely a step within an entirely different process, namely, the decision to terminate the grievor’s employment.\n\nThe grievor relied on the confidentiality of the mediation process to make disclosures about his health, his personal life and his interests and limitations in returning to work. He had every expectation that this information would remain confidential among the mediation participants and not be used for other purposes.\n\nOn the basis of the evidence and in particular Captain Hainse’s testimony, it is clear that mediation discussions were disclosed to persons outside the mediation process and the content of these discussions was used for a purpose other than the resolution of the grievor’s harassment grievance. In light of the public policy considerations of fostering good labour-management relations and providing employees with appropriate procedures and outcomes to their disputes, the breach of confidentiality within the mediation process was a violation of the grievor’s right to engage in a discrete dispute resolution process to resolve his harassment grievance separate from another independent and unrelated process to terminate his employment. It was disingenuous for the employer to use a voluntary process set up to resolve one issue as a stepping stone to further a purpose that clearly was not the grievor’s and to achieve a result that was never meant to be part of the process.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-64", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 136–138", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Accordingly, the termination of the grievor’s employment based on medical and other information obtained within the mediation process cannot be sustained.\n\nThe grievor argued that the employer did not follow the department’s termination procedure entitled “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance”, namely, that following the medical assessment, an employee’s manager must schedule a meeting to inform the employee of the results of the medical assessment and their consequences for his/her job, during which the employee may be accompanied by a union representative. In particular, the employer did not present him, independently from the mediation process, with other options such as resignation, voluntary demotion, or retirement on medical grounds (if eligible) before deciding to terminate his employment as provided under this policy.\n\nAlthough the “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance” represent an objective and independent process with respect to the termination of an employee for medical reasons, they are not part of the collective agreement, nor are they conditions that have been negotiated with the bargaining agent. Accordingly, the same observations as those that applied to the enforceability of the harassment policy apply here, that is, the non-observance of these guidelines is not an adjudicable right.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-65", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 139–140", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "However, the human rights of a disabled employee must be considered before an employer can terminate his employment. Paragraph 3(1) of the Canadian Human Rights Act prohibits discrimination on the basis of disability. Sub-paragraph 7(a) provides that it is a discriminatory practice, directly or indirectly, to refuse to continue to employ an individual on the basis of a prohibited ground of discrimination. Subsection 208(2) of the PSLRA provides for the adjudicator’s authority to decide matters related to human rights.\n\nIn Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 174, the Supreme Court of Canada defined discrimination as follows: … [A] distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society…", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-66", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 141–142", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employee who alleges discrimination has the onus of proof to make out a sufficiently strong case of discrimination (also known as a prima facie case of discrimination), based on facts that, if believed, justify a finding of discrimination in the absence of the employer’s response (see Ontario Human Rights Commission v. Simpson Sears Ltd. [1985], 2 S.C.R. 536 (O’Malley decision) at para. 28). In this matter, the test in O’Malley, requires that the grievor establish that he has a disability captured by the Canadian Human Rights Act, that he suffered adverse treatment in the workplace and that this disability was a factor in the adverse treatment he received. The grievor’s disability need not be the only factor, or even the primary factor for discrimination to be established. The burden then shifts to the employer to establish, on a balance of probabilities, that its decision or policy did not constitute discrimination because the disability was not capable of being accommodated in the workplace without undue hardship.\n\nThe employer has argued that the grievor’s medical condition does not support returning him to work with accommodation because the workplace issues that are the source of his illness will never be resolved to his satisfaction. The employer has also argued that all leave is of a temporary nature and that the employer is entitled to terminate the employment of an employee who cannot return to work. Both these arguments concede that the grievor’s mental disability was a factor in the decision to terminate his employment. Consequently, I find that a sufficiently strong case of discrimination has been established. The balance of this decision deals with whether or not the employer met its duty to accommodate the grievor to the point of undue hardship.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-67", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 143–144", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "To meet the accommodation requirements of an employee’s needs under paragraph 15(2) of the Canadian Human Rights Act, the employer must establish that accommodating those needs would “impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.” In Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at page 521, the Supreme Court held that the factors that weigh in favour of a finding of undue hardship must be balanced against the right of an employee to be free from discrimination. Thus, a balancing process requires an assessment on a case-by-case basis of the severity of the hardship against how substantial the resulting benefits will be to the employee.\n\nIn British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU), [1999] 3 S.C.R. 3 (“Meiorin”), the Supreme Court of Canada set out three elements that must be present for an employer to sustain a defence of a so-called bona fide occupational requirement (paragraph 54): The standard was adopted for a purpose rationally connected to the performance of the job; the standard was adopted in good faith and that it is tied to a legitimate work-related purpose; the standard is reasonably necessary to the accomplishment of the legitimate work-related purpose.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-68", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 145", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In this case, the employer’s argument is that the employee had been absent for an extended period and his return to work was unlikely in the foreseeable future. This standard is also set out in its “Guidelines for Demotion or Termination or Employment for Reasons Other than Misconduct or Unsatisfactory Performance.” There can be no dispute that an employer cannot be required to keep an employee indefinitely who is incapable of performing his duties, since the employee is not fulfilling his part of the employment contract. In this sense the employer’s attendance standards are rationally connected to the performance of the grievor’s job. The grievor did not contest the employer’s attendance standards as rationally connected to the performance of his job, nor was there any suggestion that this standard was not adopted in good faith and for the fulfillment of a work-related purpose. Therefore, the essence of the grievor’s case is that the employer has failed to show that the attendance standard as applied to his case is reasonably necessary, because the employer has not demonstrated that accommodating the grievor would cause the employer undue hardship.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-69", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 146", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Under the third step of the Meiorin analysis, the employer must establish that it could not accommodate the grievor to the point of undue hardship. Both the grievor and the employer must participate in the search for an accommodation, although this is the primary responsibility of the employer. This inquiry is an individual one in each case (paragraph 63). The employer’s standard must take into account “the unique capabilities and inherent worth and dignity of every individual” (paragraph 62). Moreover, tribunals “should be sensitive to the various ways in which individual capabilities may be accommodated” and “should be innovative yet practical when considering how this may best be done in particular circumstances” (paragraph 64). 147 Meiorin sets out a number of important elements that are useful in determining the type of accommodation needed by an employee, such as whether the employer has looked at alternate approaches that would not have had a discriminatory effect on the employee, whether in light of its legitimate work-related purpose, it was necessary for all employees to meet this standard, or whether there was a way for the employee to do the job that is less discriminatory (paragraph 65). Meiorin, therefore, requires the employer to diligently examine all the possibilities of adapting the workplace to enable the employee to work. A mere statement without supporting evidence or a generalized view that finding such employment is not possible does not meet the standard of undue hardship.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-70", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 148–149", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer relied on the decisions of this Board and the Federal Court of Appeal in Scheuneman in support of its position. That case, however, is clearly distinguishable on its facts as there was a medical report stating that the grievor could not return to work in the foreseeable future, and the employee stubbornly refused to return to work.\n\nBefore taking the drastic step of terminating the grievor’s employment on the basis that he was no longer able to attend work, the employer has the obvious duty to establish the exact medical condition of the employee and a prognosis that he will be unable to return to work in the foreseeable future. In the instant case, the employer had no such conclusive evidence. The evidence is irrefutable that the employer made up its mind to terminate the grievor’s employment before obtaining any evidence of his complete disability. It relied on a medical opinion given in 2004 obtained during the mediation process with respect to another grievance and the opinion of another manager. The request for an “update” of the grievor’s medical after the ultimatum was given to him implies an administrative exercise to justify the decision already taken to terminate the grievor’s employment. There is no evidence that this medical update was obtained with a view to attempting to accommodate the grievor’s return to work.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-71", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 150–152", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "But more significantly, after obtaining the medical update, the employer rushed to a decision without giving any consideration to the possibilities that were being suggested. Dr. Rosenberg did not testify or state in his November 2, 2004 opinion that the grievor could not return to work; to the contrary, he stated that the grievor could return to work within three months if workplace issues were ultimately resolved. He also provided recommendations for the grievor’s accommodation, including retraining. Neither of these recommendations were insurmountable obstacles to accommodating the grievor’s return to work.\n\nGiven that the grievor had already been absent for seven years, no adequate reason was advanced to justify why the employer could not take a few more weeks to reconsider its position. Captain Hainse was apparently concerned that Dr. Rosenberg might be unable to give an opinion because he was to take an extended leave. The relevance of this consideration with respect to the precipitous decision to terminate the grievor is unexplained. Dr. Rosenberg was not the only physician who was treating the grievor and who could have given a medical opinion about the prognosis for his return to work.\n\nWhen asked about the urgency of recommending the termination of the grievor’s employment, Captain Hainse’s response was that the decision was long overdue. All the options had been presented during the mediation process. The fact that the grievor’s “issues” remained unresolved was not good for the morale of the unit. Captain Hainse was concerned about the grievor’s dedication to his work and the perception of other employees about a lack of leadership that would affect the efficiency of the unit. Yet he admitted there had been no complaints from other employees about these concerns.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-72", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 153–154", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "An employer’s reasons for not considering accommodation must be supported by reliable, objective and persuasive evidence that its concerns are well founded. Anticipated hardships based on speculative concerns of certain adverse consequences are insufficient. Meiorin is unambiguous that the aim of human rights legislation is to have employers direct their creative thoughts to positive ways to achieve successful accommodations. An employer’s efforts must include an evaluation of the process by which it reached its decision not to accommodate. The rejection out of hand of any consideration of accommodation, without giving the matter adequate reflection or attention or exploring the possibilities, can hardly be described as having taken adequate steps to accommodate.\n\nIn this matter, other than the so-called 10 options put forward during the mediation process in 2004, there is no evidence that the employer applied itself to diligently examining all the possibilities of adapting the workplace to enable the grievor to work after receiving Dr. Rosenberg’s medical opinion of June 8, 2006. Captain Hainse’s reasons for terminating the grievor are not supported by any concrete evidence of any hardship and are not persuasive. Had the employer truly been concerned with accommodating the grievor’s return to work, it would have become knowledgeable about the grievor’s disability as it presented itself in June 2006 and examined the possibilities of accommodation as they existed at that time. It would not have caused undue hardship for the employer to provide the grievor’s psychiatrist with specific information about the jobs being proposed, the qualifications for these jobs relevant to the medical disability, and to request his opinion on this basis.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-73", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 155", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Nor did the employer engage in meaningful discussions with the grievor about the consequences of the most recent medical information and the recommendations being made to determine if there was any work that he could perform that would meet his restrictions. Before terminating his employment, the employer had an obligation to ensure that the grievor fully understood the content of the medical opinion, to clarify the grievor’s position with respect to this latest information, and to clearly set out the consequences of not returning to work. It would have created no hardship for the employer to have engaged in such discussions. There is also no evidence that providing training to the grievor as suggested by Dr. Rosenberg would have created undue hardship. Even though it was known that the grievor’s supervisor was not interested in continuing his supervision, the employer persistently refused to at least explore the possibility of having the grievor report to a different supervisor.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-74", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 156–157", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Moreover, the recommendation for terminating the grievor’s employment is attributed to his inability to report to work because of his illness. The briefing notes omit all reference to Dr. Rosenberg’s opinion about the three-month prognosis for the grievor’s return to work or the fact that he could be retrained. The omission of such statements was misleading and prejudicial to the grievor given that there was no complete medical information attached to the recommendation for termination. It is particularly telling that medical information is buried in one sentence in paragraph 15 that is overshadowed by the 14 previous paragraphs that refer extensively to the grievor’s history, his complaints, the fact that the employer’s proposals for his return to work were not accepted and the grievor’s apparent responsibility for the lengthy mediation process and its outcome. Some of the facts in the briefing note are mistaken and there are omissions, such as the findings of the harassment complaint investigation team. The insistence on irrelevant and misstated facts, rather than on key medical information and the consequences of this information, suggest that accommodating the grievor’s medical condition was secondary to the determination to terminate the grievor’s employment.\n\nTherefore, I come to the inevitable conclusion that the employer decided to terminate the employment of the grievor without taking the steps to make an informed decision. Namely the employer did not seek out useful information from Dr. Rosenberg to assist in its decision-making, nor did it attempt to determine if there was a suitable job available that could accommodate his return to work.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-75", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 158–159", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer’s arguments suggest that the length of the absence was in itself an accommodation since the grievor was unable to return to work for a lengthy period. While the employer provides sick leave, leave without pay and disability benefits as part of its compensation package, doing so does not mean that it fulfilled its obligation to accommodate the grievor to the point of undue hardship in the circumstances of this case. There is no indication that the employer was in regular contact with the grievor during his absence or that it committed financial or other resources to accommodate the grievor outside these benefits. In fact, the grievor was receiving compensation for a work-related injury. The employer did not seek up-to-date medical information about the grievor for two years before its decision to terminate his employment. Given the size of the employer’s organization, its resources and expertise, I have some difficulty understanding why the employer did not take a greater initiative in suitably accommodating the grievor’s return to work before the definitive decision to terminate his employment. An ultimatum based on a lengthy mediation process unrelated to ending the grievor’s employment is not an accommodation argument. The grievor was not entitled to a perfect solution, but he was entitled to a full consideration of his restrictions and how they could be accommodated within the employer’s policies and the jobs available.\n\nOn the basis of these findings, I conclude that the employer failed to accommodate the grievor to the point of undue hardship.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-76", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "paras 160–169", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The grievor requested that I award damages related to the long-lasting impact of the employer’s actions on his career and benefits and the aggravation of his medical condition with respect to his harassment complaint and grievance.\n\nAs I have dismissed the grievance, there are no damages owing.\n\nThe grievor requested that I exercise my discretion under section 226(1)(g) of the PSLRA and award damages in the amount of $20,000 for his pain and suffering as a result of this ordeal and the violation of subsections 52(1)(b) and 53(2)(e) of the Canadian Human Rights Act, because the termination of his employment was discriminatory and the employer acted recklessly in not considering accommodation.\n\nIt is my finding that the grievor should also be entitled to a remedy with respect to the negative impact of the employer’s breach of the confidentiality of the mediation process.\n\nMy decision with regard to a remedial award is taken under reserve. The parties are given 60 days to come to an agreement concerning such indemnity as may be owed to the grievor. Should the parties be unable to come to an agreement, I will receive their representations on a remedial award by an exchange of written submissions, no later than 90 days following the issuing of these reasons.\n\nFor all of the above reasons, I make the following orders:\n\nThe application for the extension of time relating to PSLRB File No. 568-02-154 is closed.\n\nThe grievance relating to PSSRB File No. 166-02-31912 is dismissed.\n\nThe grievance relating to PSLRB File No. 566-02-767 is allowed.\n\nThe grievor is reinstated in the position he held at the time of his termination and entitled to benefits and wages, if that is the case.", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358180-77", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 8", + "act_short": "Pepper", + "act_name": "Pepper v. Treasury Board (Department of National Defence)", + "section": "", + "citation": "Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8", + "marginal_note": "para 170", + "heading": "Discipline and termination; frequently-cited principles on just cause", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I retain jurisdiction on the issue of a remedial award with respect to PSLRB File No. 566-02-767 for a period of 90 days. January 28, 2008. Michele A. Pineau, adjudicator", + "current_to": "2008-01-28", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358180/index.do" + }, + { + "id": "fpslreb-358097-1", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 1–3", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On July 12, 2005, Stephen Bradley Richmond (“the complainant”) filed a complaint under paragraph 190(1)(e) of the Public Service Labour Relations Act (PSLRA) against the Correctional Service of Canada (CSC or “the respondent”).\n\nThe complainant is a correctional supervisor for the CSC at Bowden Institution in Alberta. His position was classified at the CX-03 group and level at the time he filed his complaint. His complaint relates to the CSC’s failure to respect chapter 4 of the Treasury Board Secretariat’s (TBS) Personnel Management Manual entitled Classification Grievances Policy (Exhibit G-1) and the Classification Grievance Procedure issued by the Canada Public Service Agency (CPSA) (Exhibit G-3, a supplement to the TBS’s policy cited above). Both documents provide that a department must respond to a classification grievance within 60 days. The complainant submitted his classification grievance on October 15, 2003, and the CSC has not yet responded. His complaint, as submitted to the Public Service Labour Relations Board (“the Board”) using its Form 16, reads as follows: The Correctional Services [sic] of Canada has not adhered to the policy put for [sic] by the Treasury Board of Canada Secretariat, specifically, Chapter 4 – Classification Grievance Policy, i.e.: POLICY REQUIREMENTS The Deputy Head or Nominee must respond to the Grievance in writing within 60 working days after it is received by the immediate supervisor or local Officer-in-Charge. If the deadline is extended by mutual agreement, such agreement Must [sic] be confirmed in writing between the Deputy Head or nominee and the Employee’s representative, if applicable.\n\nIn that same complaint form, he gave the following statement of the acts and omissions complained of: [Sic throughout]", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-2", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 4–5", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant requested the following corrective action:\n\nThe respondent conceded that the complainant did not get a timely response to his classification grievance, and it has apologized in writing to the complainant for that omission which was the result of several factors. More than 300 classification grievances were filed. Employees had also filed job-content grievances. The job-content grievances had to be resolved before the classification issues could be addressed. All of the job-content grievances were resolved in January 2007. The committee that was going to address the classification grievances was convening the week of this hearing (i.e., the week of January 14, 2008).", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-3", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 6–7", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondent raised several preliminary objections regarding my jurisdiction to hear this complaint. Its first objection was that paragraph 190(1)(e) of the PSLRA, on which the complainant bases his complaint, cannot apply to this matter. The purpose of that provision is to grant the Board the authority to inquire into complaints that the employer or the employee organization failed to comply with section 117 of the PSLRA which deals with the duty of the employer and the employee organization to implement the collective agreement. The complainant’s concerns are not related to that subject. He is complaining that the CSC failed to respect the TBS’s policy that provides that a department must respond to a classification grievance within 60 days. A breach of policy is not the same as a failure to implement the collective agreement as contemplated by section 117 of the PSLRA. The Agreement between the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN expiring May 31, 2010, (“the collective agreement”) (Exhibit G-2) does not refer to that policy. There is therefore no link to the collective agreement and consequently no link to section 117 or paragraph 190(1)(e) of the PSLRA. The complaint must therefore be dismissed for lack of jurisdiction.\n\nThe respondent argued that the situation might have been different under the Public Service Staff Relations Act (PSSRA), the predecessor to the PSLRA. Paragraph 23(1)(d) of the PSSRA provided that the Public Service Staff Relations Board (PSSRB) could inquire into complaints relating to a failure to comply with any regulations that the PSSRB made respecting grievances. The new Act does not contain such a provision.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-4", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 8–9", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "It was also the respondent’s view that the complainant cannot rely on paragraph 190(1)(e) of the PSLRA since he is not a party to the collective agreement, nor is he covered by the collective agreement. The complainant occupies a managerial position that has been excluded from the bargaining unit. He is not a party to the collective agreement, and it does not apply to him.\n\nAnother objection relates to timeliness. Subsection 190(2) of the PSLRA provides that the complaint must be made to the Board within 90 days after the date on which the complainant knew, or ought to have known, of the action or circumstances giving rise to the complaint. In this case, the complaint is based on the respondent not complying with the TBS policyon classification grievances that provides that the employer must respond to a classification grievance within 60 days. The 61st day after the presentation of the grievance is when the CSC failed to respect the policy. That is the date from which the complainant knew or ought to have known that the policy had been breached but he only filed his complaint on July 12, 2005, well after that 90-day period specified in the PSLRA had expired. Therefore the complaint is untimely, and the case law is clear that the Board has no discretion in this matter. On that point, the respondent referred me to Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78. In that case, the employer had mistakenly identified the employee’s position as excluded and informed him of that error six months later. The employee filed an unfair labour complaint regarding that matter almost four years later. The Board decided that the complaint was untimely since the 90-day time limit began when the complainant was apprised of the error regarding the status of his position.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-5", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 10–13", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondent made another preliminary objection. It was of the view that there was no redress available for the complainant since the Board has no authority over classification matters.\n\nThe respondent’s final preliminary objection was that the complaint is moot. The complainant’s concern relates to the classification level of his position. However, the classification grievance committee met the week of this hearing to address that very issue, and it has the authority to address classification issues, not the Board. The complainant could obtain redress from that committee. The respondent agreed that the convening of that committee did not happen soon enough, but it had to deal with the job-content grievances before dealing with hundreds and hundreds of classification grievances.\n\nThe complainant maintained that I have jurisdiction to hear this complaint. The complainant is an employee, since the definition of that term found in the Classification Grievances Procedure (Exhibit G-1)provides that an “employee” includes a person who occupies a managerial position.\n\nClause 20.02(a) of the collective agreement provides that: 20.02 Subject to and as provided in Section 208 of the Public Service Labour Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 20.05 except that: (a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint, such procedure must be followed,", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-6", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 14–17", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The collective agreement suggests that other procedures are available to address the complainant’s concerns. The complaint procedure set out in paragraph 190(1)(e) of the PSLRA is the “administrative procedure” referred to in clause 20.02(a) of the collective agreement.\n\nThe respondent was wrong to assert that the complainant was not covered by the collective agreement. The provisions of that agreement apply to him even though he is in an excluded position.\n\nThe complainant maintained that his complaint was timely. He did not agree that the 90-day time limit set out in subsection 190(2) of the PSLRA began on the 61st day after he filed his classification grievance, as the respondent contended. The complainant tried repeatedly through the years to get information regarding his classification grievance, but he never received clear answers. He received non-specific responses, which led him to believe that things were moving along. He gave the CSC the benefit of the doubt because it had to process 302 grievances. He finally realized that things were not progressing, so he decided to file a complaint. The period for filing the complaint should have begun when he finally realized that the CSC was not processing his classification grievance.\n\nWith respect to redress, the complainant argued that he knows that the Board does not have jurisdiction over classification matters. He is not asking the Board to hear the classification grievance. The redress measures that he has asked for in his complaint touch on different matters.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-7", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 18–23", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant also disagreed with the respondent’s contention that the complaint was moot because the classification grievance committee was meeting on the same week as this hearing. There should be a consequence to the CSC’s breach of policy. There are still matters to debate. He added that it was a strange coincidence that after waiting four years, the CSC finally decided to hold a classification committee meeting on the same week as the hearing into this complaint.\n\nThe complainant also argued that the CSC is precluded from contending that I do not have jurisdiction to hear this matter, because it agreed to mediate the complaint in January 2007.\n\nThe respondent argued that that there is no nexus between the complaint and paragraph 190(1)(e) of the PSLRA.\n\nThe respondent was of the view that clause 20.02(a) of the collective agreement is not relevant to this case. It deals with grievances and how those grievances should be dealt with if there is another administrative procedure provided by another Act of Parliament to deal with the employee’s concerns. Article 20.02 specifies that it does not apply to classification grievances.\n\nAs for the definition of “employee,” paragraph (i) of that definition, in section 2 of the PSLRA, specifies that that term does not include a person who occupies a managerial position with respect to the Part of the PSLRA that applies to complaints.\n\nThe respondent contented that it did not waive its right to contest my jurisdiction by attempting to mediate this complaint in 2007. The mediation was made on a without-prejudice basis.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-8", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 24–29", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I indicated to the parties that I would take the preliminary objection under consideration and would render a ruling on that objection when I rendered my decision on the merits of the complaint. I then asked the parties to proceed with the evidence on the merits of the complaint.\n\nThe complainant gave testimony and filed four exhibits. The employer also filed four exhibits.\n\nIn his testimony, the complainant gave a brief account of his classification grievance. In June 2003, the CSC published the results of a classification review regarding the correctional supervisor position. The complainant did not agree with the results of that review so on October 15, 2003, he submitted a classification grievance to the CSC. After he presented the grievance, he contacted the department on many occasions to inquire on the status of his grievance but never got any response.\n\nThe complainant also contacted Mr. Guy Lauzon, Member of Parliament and official critic for the Conservative Party of Canada for Treasury Board matters. Mr. Lauzon relayed the complainant’s concerns to the President of the Treasury Board, the Honourable Reg Alcock.\n\nThe complainant explained that his complaint relates to the CSC’s lack of response to his classification grievance. More specifically, the CSC neglected to respect the time frames set out in the collective agreement and the policies issued by the TBS and the CPSA on classification grievances.\n\nThe complainant testified that in May 2005, he contacted Carol Richards, who worked at the CSC. She told him that she had just received the classification portfolio. She apologized and informed him that nothing had been done to that date. That is when he decided to submit his complaint.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-9", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 30–31", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant stated that a hearing for this complaint under paragraph 190(1)(e) of the PSLRA was scheduled for January 10, 2007, in Calgary. The hearing did not proceed since both parties agreed to hold a mediation session. An agreement was reached and he and the CSC signed a Memorandum of Agreement (MOA) (Exhibit G-4) on January 10, 2007. The respondent did not object to the complainant tabling the MOA but asked that in my decision I refer only to the parts that are necessary to understand this complaint and my decision. Suffice it to say that the CSC apologized to the complainant for the delays in responding to his classification grievance. The MOA also provided that the complaint was adjourned until June 30, 2007, and that the complainant could reactivate the complaint after that date. Since the complainant was of the view that the CSC had not respected all of the terms of the MOA, he reactivated the complaint.\n\nThe complainant testified that the CSC identified two persons who could provide information about his job-content and classification grievances: Marc Seguin, Team Leader, Labour Relations, at National Headquarters, and Bonnie Wellman, Director, Organizational Design and Classification, also at National Headquarters. The complainant contacted Mr. Seguin, but the latter could not provide any information on the status of the complainant’s classification grievance. The complainant also contacted Ms. Wellman, but she never responded. He received a phone call from Lucie Patrick, Acting Director, Organization Design and Classification, CSC, who said that she was not at liberty to speak about the grievance because of the MOA.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-10", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 32–35", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant testified that some of the undertakings of the MOA had been met. He did receive an apology from the CSC (Exhibit G-4). The job-content grievances have now been reviewed but the CSC did not respect its promise to keep him informed of the development of his classification grievance. It did not communicate with him regarding that matter and ignored his requests for information.\n\nThe complainant stated that he was aware that a classification grievance committee was holding meetings the same week as this hearing. That committee dealt with a different matter. The issue before that committee was his job classification, while the issue before me was the CSC’s breach of the policies regarding the time frames for responding to classification grievances.\n\nTurning to another issue, he stated that he was an excluded employee but that the CSC elected to apply the collective agreement to excluded correctional supervisors who held managerial positions.\n\nIn cross-examination, the complainant restated that he was part of the bargaining unit. The respondent’s counsel then presented the complainant with a letter addressed to him and signed by Lynne Brown, Manager, Employee Relations, CSC (Exhibit E-1). He recognized the letter. She pointed out to him that the letter, written sometime in 1997 (the exact date is unreadable), stated that the PSSRB had confirmed the exclusion of his position from his bargaining unit and that his union dues deductions would cease on May 1, 1997. The complainant answered that he believed that he paid union dues until 1998, but not after that. However, in his view, the union still accepted him as a member. His understanding was that the provisions of the collective agreement applied to him.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-11", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 36–40", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In answer to another question put to him by the respondent’s counsel, the complainant stated that his responsibilities included managing and supervising officers at the CX-01 and CX-02 groups and levels. He was responsible for providing the first-level response to officers’ grievances of those groups and levels under his direction and was involved in any disciplinary action directed against them.\n\nThe respondent’s counsel then presented the complainant with an email he sent to Mr. Lauzon on March 21, 2005 regarding his classification grievance (Exhibit E-2). The complainant recognized the email and agreed with the respondent’s counsel that at that time, he had been frustrated about the lack of response to his grievance.\n\nThe respondent’s counsel asked the complainant to indicate the provision of the collective agreement that addresses the issue of time frames for responding to a grievance. The complainant could not direct her to any specific provision.\n\nThe respondent’s counsel submitted as evidence an email that Allan Briere, his current representative, sent to Ms. Wellman on February 22, 2007 (Exhibit E-3). The complainant was copied on the email. The complainant acknowledged that on seeing the email, he understood that the job-content grievances had to be decided before the classification grievances could be processed.\n\nThe respondent’s counsel asked the complainant if Mr. Briere had been his representative during the discussions that led to the MOA. The complainant answered affirmatively. The respondent’s counsel then tabled an email from Mr. Briere to Ms. Patrick sent on August 31, 2007 (Exhibit E-4) regarding the outstanding classification grievances.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-12", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 41–44", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant stated that he had spoken to Ms. Patrick twice andhad discussed his classification grievance three times in 2007 with Kenneth A. Graham, Employer Representation Advisor, Labour Relations Operations, TBS.\n\nThe complainant also said during cross-examination that he had been invited to make submissions to the classification grievance committee that was meeting that week to examine his classification grievance.\n\nIn redirect, the complainant’s representative was about to ask a question about the last contract negotiations and about the issue of whether the complainant was covered by the collective agreement. The respondent’s counsel objected to that question on the ground that it did not arise out of her cross-examination and that the complainant was splitting his case. I allowed the question, because it could be relevant to the issue of whether the collective agreement applied to the complainant, on the condition that the respondent’s counsel had the opportunity to cross-examine the complainant on his answer.\n\nThe complainant’s representative asked the complainant whether it was widely believed in the last contract negotiations that officers at the CX-02 group and level were paid more than correctional supervisors at the CX-03 group and level. The complainant answered that officers at the CX-02 group and level were paid more than their supervisors and that the collective agreement applied to supervisors working at the CX-03 and CX-04 groups and levels.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-13", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 45–48", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant argued that this was a clear case of abuse of authority through irresponsible and unprofessional disregard for policy and the law. The complainant does not contest the employer’s right to make policy; what he contests is the fact that the CSC selectively failed to apply parts of the employer’s policy on classification grievances.\n\nThe CSC classified the correctional supervisor position and subsequently denied the persons affected by that decision their avenue of redress. The CSC failed to process the classification grievances within the time frames mandated by the TBS in the Classification Grievances Policy (Exhibit G-1) and mandated by the CPSA in the Classification Grievance Procedure (Exhibit G-3). Both documents mandate a 60-day period in which the CSC is to acknowledge receipt of classification grievances. In the case of the complainant, more than four years have passed. Clearly, that period of time exceeds the 60-day period prescribed by those policies. Simply put, the CSC did not do what it was mandated to do by law.\n\nThe complainant added that the CSC has been regularly reminded throughout that four year-period of their lapse in judgment and their inaction regarding the processing of 302 classification grievances.\n\nGiven the complainant’s reminders of its outstanding obligation during that four year-period, the CSC’s disregard for policy can only be intentional and cannot be considered an error or omission. CSC disregarded the employees’ avenue of redress for classification processes. The CSC’s apology showed that it was wrong to act in that manner.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-14", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 49–51", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complainant argued that being copied on the emails sent to his representative (Exhibits E-3 and E-4) is not significant and does not amount to keeping him informed of the progress of his classification grievance.\n\nThe respondent pointed out that the CSC apologized for the delays in answering the complainant’s classification grievance. The apology resulted from the MOA.\n\nThe respondent contended that the complainant was wrong in stating that he was left out of the loop. Ms. Wellman and Mr. Seguin were identified as contact persons. As indicated in the email submitted as evidence (Exhibit E-3), Ms. Wellman also identified Ms. Patrick as a contact person. The complainant was copied on the emails that his representative sent regarding the classification grievances (Exhibits E-3 and E-4). The complainant testified that he spoke with Ms. Patrick regarding his grievance. The information may not have been as complete as the complainant wanted, but it is not true that he was completely shut out of the process.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-15", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "para 52", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondent’s counsel took the position that paragraph 190(1)(e) of the PSLRA cannot apply to the complainant’s complaint since he is an excluded employee; therefore, he is excluded from membership in the union and from application of the collective agreement. In his testimony, he admitted that he ceased paying union dues in 1998. She asked me to take judicial notice that bargaining agents require members to pay union dues. The complainant is excluded because he holds a managerial position; he is the person identified by management to provide the first-level response to grievances presented by CX-01 and CX-02 officers under his direction, and he has the authority to discipline them. Since he is not covered by the collective agreement, his complaint is inadmissible. The respondent’s counsel referred me to Brown and Beatty, Canadian Labour Arbitration, 3rd ed., paragraph 2:3110, where the authors state that generally speaking, only the parties to a collective agreement may take a grievance to arbitration.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-16", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 53–54", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The respondent argued that the remedies that the complainant had asked for at mediation have all been granted. The first was that the department apologized for the delay in responding to his classification grievance. The department has offered that apology. Another area of concern was the job-content grievances. The CSC has now processed those grievances. The CSC has also kept the complainant informed of the status of his classification grievance, although not to his satisfaction. The delays are regrettable, but things are finally moving along. The classification grievance committee met the week of the hearing and the complainant’s grievance was to be addressed at that meeting. Some CX-03 positions have already been reclassified. The respondent referred me to Buchanan v. Correctional Service of Canada and Dianne Bird, 2002 PSSRB 35, where the PSSRB Chairperson decided that no further remedy was necessary in that case because the department had corrected an error it had committed in the grievance process.\n\nThe respondent was of the view that the remedies that the complainant requested in his complaint were moot. His first request was that his submission be forwarded to the Board. That has been done through this hearing. The complainant’s second request was that the Board undertake a review of his classification grievance, but the Board has no jurisdiction over classification grievances. The proper forum for review if an employee is not satisfied with the response to his or her classification grievance is judicial review. The third corrective action that the complainant sought was that he be provided with financial compensation if the Board ruled in his favour. Since the Board has no jurisdiction over the classification grievance, it cannot grant that remedy.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-17", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 55–57", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This complaint relates to the CSC’s failure to comply withthe Classification Grievances Policy (Exhibit G-1) issued by the TBS and the Classification Grievance Procedure (Exhibit G-3) issued by the CPSA. Both require that the department respond to a classification grievance within 60 days. The complainant submitted his classification grievance on October 15, 2003, and the CSC has not yet responded, although a classification grievance committee was convened to examine his grievance on the same week as this hearing.\n\nThe complainant’s frustration is understandable. He has been waiting more than four years for a response to his classification grievance, and that matter is not yet resolved. He is right in saying that the CSC should make every effort to abide by the policies and procedures set by the TBS and the CPSA for classification grievances. However, I have no jurisdiction over the issue of the time frames for processing classification grievances set out in those two instruments, for the reasons that follow.\n\nOne of the respondent’s objections related to the subject matter of the complaint. Its view is that the failure to abide by the time frames for responding to classification grievances set out in the two policies (Exhibit G-1 and G-3) cannot form the basis of a complaint under paragraph 190(1)(e) of the PSLRA. I agree with that submission. That paragraph reads as follows: 190. (1) The Board must examine and inquire into any complaint made to it that (e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-18", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "para 58", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Sections 117 and 157 of the PSLRA read as follows: 117. Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement (a) within the period specified in the collective agreement for that purpose; or (b) if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set. 157. Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-19", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 59–60", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "A complaint made under paragraph 190(1)(e) of the PSLRA must relate either to the duty to implement the provisions of a collective agreement (section 117 of the PSLRA) or to the duty to implement provisions of an arbitral award (section 157 of the PSLRA). It is uncontested that no arbitral award was issued in this case. As for the duty to implement the provisions of the collective agreement, I was not referred to any provision of that document that would indicate that it governs classification grievances. I was, however, referred to provisions that indicate the contrary. Clause 20.02 of the collective agreement provides specifically that the grievance procedure referred to in that document does not apply to classification grievances: 20.02 Subject to and as provided in Section 208 of the Public Service Labour Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 20.05 except that:\n\nClause 20.02(a) of the collective agreement does not have the effect that the complainant gives it. It indicates that for grievances other than those relating to classification, where there is another administrative procedure provided in any Act of Parliament to deal with the employee’s concerns, the employee must follow the procedure set out in that Act instead of the one found in the collective agreement.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-20", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 61–62", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The procedure for classification grievances, and specifically the time frames for responding to those grievances, is not set out in the collective agreement but in the Classification Grievances Policy (Exhibit G-1) issued by the TBS and the Classification Grievance Procedure (Exhibit G-3) issued by the CPSA. Paragraph 190(1)(e) of the PSLRA does not deal with the implementation of that policy or procedure but with the implementation of the collective agreement. So the complainant’s concern, which deals with the breach of those policy instruments, cannot be the subject of a complaint under paragraph 190(1)(e) of the PSLRA.\n\nI also agree with the respondent’s submission that the complainant cannot present a complaint under paragraph 190(1)(e) of the PSLRA since he is not a party to the collective agreement, nor is he covered by the collective agreement. In my view, the purpose of this provision was to give the parties to the collective agreement (i.e., the employer and the bargaining agent) a mechanism to force each other to implement the collective agreement if one party failed to do so. It is unclear whether an employee covered by the collective agreement can prevail himself of the provision but I need not decide that matter since the complainant is not covered by the collective agreement because he occupies a position which is excluded from the bargaining unit. The letter from Ms. Brown in 1997 (Exhibit E-1) indicates that the PSSRB confirmed that the complainant’s position was excluded from the bargaining unit. The complainant simply has no connection to the collective agreement or the bargaining unit.", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358097-21", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 22", + "act_short": "Richmond", + "act_name": "Richmond v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Richmond v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 22", + "marginal_note": "paras 63–65", + "heading": "Classification grievance in the federal public service", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Since I have decided that I do not have jurisdiction to hear this complaint because the complainant’s concern cannot be the subject of a complaint under paragraph 190(1)(e) of the PSLRA and because the complainant cannot avail himself of that provision since he is not covered by the collective agreement, there is no need to address the other preliminary objections relating to timeliness, redress and whether the complaint is moot.\n\nFor all of the above reasons, the Board makes the following order:\n\nThe complaint is dismissed. March 31, 2008 John A. Mooney, Board Member", + "current_to": "2008-03-31", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358097/index.do" + }, + { + "id": "fpslreb-358890-1", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 1–3", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the time they filed their grievances in August and September 2010, Aaron Baldasaro and Vickie Thiessen (“the grievors”) were correctional officers employed by the Correctional Service of Canada (“the employer” or CSC) in the Pacific Region. Ms. Thiessen worked at the Kwìkwèxwelhp Healing Village Institution and Mr. Baldasaro at the Matsqui Institution. The grievors alleged that the employer, by offering overtime inequitably, violated clause 21.10(a) of the collective agreement signed on June 26, 2006 by the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the union”) (“the collective agreement”). Clause 21.10(a) reads as follows: 21.10 Assignment of Overtime Work The Employer shall make every reasonable effort: (a) to allocate overtime work on an equitable basis among readily available qualified employees …\n\nThe equitable distribution of overtime has been a long-standing issue between the employer and the union. As I will explain later, until November 1, 2009, overtime was distributed among readily available and qualified employees according to local procedures in each institution. The employer rescinded those local procedures on November 1, 2009 and replaced them with a standardized procedure contained in a national overtime policy (“the national policy”).\n\nThese two grievances deal with overtime distribution under the national policy. They are the first two to be heard of approximately 500 grievances referred to adjudication under the national policy. The parties selected them as test cases that will hopefully provide answers to several questions about the equitable distribution of overtime among correctional officers.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-2", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 4–5", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The parties adduced 52 documents in evidence. The grievors testified. They also called Gaelen Joe as a witness. Mr. Joe is a correctional officer at Matsqui Institution and is the local union president. The employer called John Kearney, Philippe Ariss, Randy Warren, Andrew Burke, Danielle Laberge and Andrew Marshall as witnesses. Mr. Kearney is Director of Labour Relations Policy for the CSC. Mr. Ariss is the manager of the CSC Scheduling and Deployment System (SDS). At the time of the grievances, Mr. Warren, Mr. Burke, Ms. Laberge and Mr. Marshall were in correctional manager (CM) or manager of operations positions at Kwìkwèxwelhp Healing Village or at Matsqui Institution. They were involved at the time of the grievances in scheduling employees for work, calling them for overtime, applying the national policy, or operating and using the SDS.\n\nBefore November 2009, the CSC’s institutions developed their own procedures for the equitable distribution of overtime. Most institutions offered overtime to the qualified available employee with the lowest number of overtime hours worked in the quarter or in the year. In that sense, equitability was recalculated every day. To reduce costs, some institutions offered overtime to employees at time and one-half before offering it to other employees at double time. There were other variances between local procedures across the country, but it is not useful to expand on them. On November 1, 2009, all local procedures were rescinded and replaced by the national policy.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-3", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 6–8", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to the national policy, the CMs have to control and reduce the need for overtime; give employees, whenever possible, advance notice of overtime to be worked; make every reasonable effort to offer overtime at the same group and level; minimize costs when overtime is required; and discuss overtime results with the union local representatives on a quarterly basis. The policy states that the CMs should make every reasonable effort to offer hours of overtime on an equitable basis among readily available and qualified employees. The CMs should also keep a record of all hours of voluntary overtime offered. Overtime is to be reviewed quarterly to allow for regular adjustments, as equitability is calculated over a 12-month period.\n\nMr. Kearney testified that the employer differentiates voluntary overtime from mandatory overtime. Employees are called for mandatory overtime to satisfy very specific operational requirements and at the employer’s discretion. For example, employees who are members of Institutional Emergency Response Teams (IERT) are required to work overtime with no opportunity for refusal when called as part of an IERT. Those overtime hours are recorded separately, and not used to compute and assess the equitable allocation of overtime.\n\nAccording to the national policy, the CMs consider the number of voluntary overtime hours already offered during the year when offering overtime. All hours of voluntary overtime offered and refused, offered with no answer, offered and worked, and spent on training, including IERT training, are compiled. From now on, when I refer to voluntary overtime hours offered, I mean all of those hours. However, that does not include mandatory overtime, which is compiled separately.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-4", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 9–10", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The national policy defines the equitable offering of overtime as follows: Equitable offering of overtime: means that over the fiscal year, management has made every reasonable effort to offer approximately the same amount of overtime hours to one employee as it has to other readily available qualified employees in the same work area. However, some employees may end the recording period with fewer overtime hours worked. [Emphasis in the original]\n\nMr. Kearney testified that the quarterly review period allows readjusting discrepancies that could have been generated by the national policy. When discrepancies are identified, measures can be taken to correct the situation and to offer overtime shifts to employees who have not had their fair share of overtime offers. For example, an employee who was not offered enough overtime because of his or her availability only at double time would be offered more overtime shifts after the quarterly review, to re-establish equitability.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-5", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 11–12", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to Mr. Kearney, local union presidents are supposed to receive regular monthly and quarterly reports (cumulative and non-cumulative) on the distribution of overtime among employees. Local union presidents and employees can receive other overtime reports if they require clarification. In addition, employees can ask questions of the CM in charge of scheduling or of the SDS if they believe that there has been an issue with the distribution of overtime. The grievors’ witnesses testified that it was sometimes difficult to obtain from the employer the information they needed to assess equitability in offering overtime. There were some inconsistencies in reporting formats, and there were difficulties receiving cumulative reports. For the employer’s witnesses, this was not a real problem since union officers can, at any time, ask for the report that they want.\n\nWhen the CMs need to hire officers for overtime, they input the work requirements and details of the overtime shift to be offered into the SDS. The SDS automatically produces a list of qualified officers who meet the work requirements and who have indicated their availability to work the overtime shift. The SDS list ranks the officers in the order that they should normally be called. The list starts with officers who would be paid at time and one-half. Officers who would be paid at double time are listed next. Within those two groups, officers are listed in reverse order of the number of hours of voluntary overtime offered during the year. In other words, the officer to be paid at time and one-half and with the lowest number of voluntary overtime hours offered appears at the top of the list.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-6", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 13–15", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "According to the CMs who testified, they automatically call the first officer on the list and continue until they fill the overtime needs for a shift. Mr. Kearney testified that the CMs use the SDS list as a tool to make discretionary decisions about whom to call for overtime. For Mr. Kearney, the CMs might not necessarily respect the list. The CMs who testified about it said that they respect the list order at all times.\n\nThe national policy states that local CMs are to produce quarterly reports to identify discrepancies in offering overtime. According to the national policy, the CMs are to address possible imbalances in offering overtime and may decide to prioritize employees who were not offered their share of overtime, even if additional costs may be incurred, like calling an employee on double time rather than on time and one-half. However, according to the oral evidence from the CMs at the hearing, it is not done that way at the local level. Audits or adjustments are normally not done. In fact, CMs seem to audit only on a request from an employee who feels that he or she did not receive his or her fair share of overtime or who does not understand why he or she was bypassed for overtime.\n\nMs. Thiessen input into the SDS an indication that she available to work overtime on June 22, 2010. Because of a glitch in the SDS, when the CM asked for a list of all employees available for an overtime shift, Ms. Thiessen’s name did not come up. For that reason, she was not called for that shift, even though, normally, she should have been called. She was qualified and available and had the lowest number of overtime hours worked in the year.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-7", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 16–18", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the end of the quarter on June 30, 2010, Ms. Thiessen had been available for 15 hours of overtime. However, she was offered none. At the end of the fiscal year, she had been available for 143 hours of overtime, and she was offered none. The CM analyzed that situation and concluded that, except for June 22, 2010, each time that Ms. Thiessen was available, no overtime was offered.\n\nThe employer tried to correct its error of June 22, 2010. It offered Ms. Thiessen an overtime shift shortly after that day. She refused because she did not want to bump the next person who would have been offered that overtime shift. Later on during the same fiscal year, the employer offered Ms. Thiessen an overtime shift as an extra person on the roster at a time convenient to her and to the employer, so that her overtime shift would not impact the overtime offered to other employees. She refused that offer. She also testified that she had a very busy life with many responsibilities outside her workplace and that she could not accept the employer’s offer.\n\nIn her grievance, Ms. Thiessen asked that the employer show more transparency in the equitable offering of overtime. As a result, the employer agreed to post some information that was not posted before. However, Ms. Thiessen still believed that that was not sufficient and that more information sharing was necessary.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-8", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 19–21", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Baldasaro indicated that he was available to work overtime on the day shift of August 26, 2010. That shift started at 07:00 and ended at 18:45. Mr. Baldasaro would have been paid at double time had he worked that overtime shift. The shift was offered to “S.H.,” who was also to be paid at double time. Mr. Baldasaro believes that he should have been offered that shift because he had worked less overtime hours during the year than S.H.\n\nAccording to the information provided by the SDS to Ms. Laberge, who offered the overtime shift on August 26, 2010, S.H. had 19.75 overtime hours offered during the year, and Mr. Baldasaro had 34 hours offered. Ms. Laberge called S.H. since the SDS indicated that S.H. had less hours offered than Mr. Baldasaro. She did not verify anything else since her directive was to call officers according to their rank on the SDS screen.\n\nMr. Baldasaro adduced in evidence a document produced by the SDS that indicated that those totals, for S.H. and him, were not the number of hours of overtime worked during the year. It indicated that Mr. Baldasaro had worked 28.75 hours of overtime before August 26, 2010 and that S.H. had worked 42 hours of overtime for the same period.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-9", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 22–23", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "A third document produced by the SDS and introduced by the employer showed that, before August 26, 2010, Mr. Baldasaro had worked 19.25 hours of voluntary overtime, that he was offered and was not available for or refused an additional 14.75 hours of overtime, and that he was ordered to work 9.5 hours of overtime. That helps reconcile the two other SDS documents. The overtime hours that appeared on the SDS screen when the CM called employees for overtime on August 26, 2010 did not include the 9.5 hours of mandatory overtime worked by Mr. Baldasaro and the hours of mandatory overtime worked by S.H. However, it included the 14.75 hours for which Mr. Baldasaro was called but not available. No evidence was introduced on the number of hours for which S.H. was not available, as part of the 19.75 hours shown on the SDS screen used by Ms. Laberge.\n\nAnother SDS report adduced at the hearing by the employer showed that, between April 1, 2010 and March 31, 2011, Mr. Baldasaro was offered 104.75 hours of voluntary overtime, worked 9.5 hours of mandatory overtime and was available to work 1663 hours of overtime. In comparison, S.H. was offered 87.75 hours of voluntary overtime, worked 72.75 hours of overtime, worked 38.5 hours of mandatory overtime and was available for 592.75 hours of overtime. Mr. Marshall testified that there were not necessarily any discrepancies in those figures. The differences would most likely be explained by checking the offers of overtime for every day that overtime was worked and offered to the two officers. He admitted that that analysis was not done since nobody asked him to do it.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-10", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 24–26", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Joe testified that he does not have access to enough information and data from the employer at the Matsqui Institution to monitor and check if the employer offers overtime equitably and to make the overtime offering system work fairly and smoothly. The employer’s witnesses testified that the union or any employee can obtain all the information they want to monitor whether overtime is offered equitably. The employer has never refused to provide the information requested by the union.\n\nMs. Thiessen was not offered overtime on June 22, 2010 because of an error in the SDS. The error was never corrected, and at the end of year, Ms. Thiessen had not worked any overtime even though she had been available for 143 hours of overtime. The principle of equitability was broken. Further, the employer could not provide any explanation as to why Ms. Thiessen did not work any overtime that year. The employer violated the collective agreement, and it should be ordered to pay Ms. Thiessen eight hours of overtime at the applicable rate.\n\nMr. Baldasaro was not offered overtime on August 26, 2010, because the SDS computation was wrong. IERT training and IERT work hours were not reflected in the overtime hours computed by the SDS. As a result, the SDS showed that S.H. had less overtime hours worked than Mr. Baldasaro, even though she had worked more hours. The CM trusted the SDS computation and called S.H. rather than Mr. Baldasaro. There should be no distinction between voluntary and involuntary overtime for the purposes of computing overtime hours and for offering overtime. Such a distinction is not part of the collective agreement. Had the parties wanted to make such a distinction for the allocation of overtime, they would have written it into the collective agreement.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-11", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 27–29", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the end of the year, Mr. Baldasaro was clearly disadvantaged when compared to S.H. This becomes apparent when the ratio of hours worked and hours available are compared. The jurisprudence on remedies is clear. If the adjudicator allows the grievance, he should order the employer to pay Mr. Baldasaro the missed overtime opportunity.\n\nThe evidence showed that the employer did not perform any quarterly or annual audits or reviews of the discrepancies in overtime allocation, either at Kwìkwèxwelhp or at Matsqui. The national policy was not respected. Nor was it respected with respect to the obligation to share the overtime SDS information with the union. That was not done regularly. The information was not transparent. The way in which it was transmitted or posted did not allow the union or its members to fully monitor the equitable distribution of overtime.\n\nThe grievors referred me to the following decisions: Boujikian v. Treasury Board (Citizenship and Immigration Canada), PSSRB File No. 166-02-27738 (19980615); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; Casper v. Treasury Board (Department of Citizenship and Immigration), 2011 PSLRB 27; Allard et al. v. Treasury Board (Department of Citizenship and Immigration), 2011 PSLRB 26; Hunt and Shaw v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 65; Sturt-Smith v. Treasury Board, PSSRB File No. 166-02-15137 (19860731); Weeks v. Treasury Board (Correctional Service of Canada), 2010 PSLRB 132; Lauzon v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 126; and Mungham v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 106.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-12", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 30–32", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer argued that it did not violate the collective agreement and that it allocated overtime on an equitable basis. The employer’s witnesses explained that the application of the national policy is transparent through reports that can be consulted at any time by the union or by employees. Rather, the problem is that the union is resistant to the national policy. The CMs monitor the allocation of overtime on a regular basis and enquire further if they receive a request from employees or the union.\n\nPast decisions of the Federal Court and of adjudicators have established that equitability must be measured over a reasonable period, that equitability should be assessed by comparing the hours allocated to a grievor to the hours allocated to similarly situated employees over that period, and that, when overtime hours are compared, the adjudicator must determine if any factors can explain any discrepancies, such as differing availability, leave or other factors. The employer respected those principles and did not violate the collective agreement.\n\nThe employer is entitled to set the parameters of equitability. It did so with the national policy. Under that policy, an employee cannot assert his or her right to a particular overtime shift. Equitability cannot be established on a day-to-day basis. Rather, the employer decided to establish it annually. No evidence was presented to establish that it cannot be done that way.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-13", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 33–37", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Since equitability is established annually, the grievances are premature because it is not possible in June or in August of a particular year to establish if the distribution of overtime has been equitable. The answer to that question will come after the year is completed. The offer of overtime for a particular shift needs to be placed in the context of all offers of overtime over the year.\n\nThe employer argued that, if one of the grievances is allowed, the adjudicator should simply declare that the collective agreement has been violated and should not order anything else. Ordering the employer to pay for a missed overtime shift is punitive since the shift was not worked by the relevant grievor. Remedies of a punitive nature should not be ordered when the employer acted in good faith.\n\nFor Ms. Thiessen, the employer offered to correct its mistake by offering an alternate overtime shift. She refused that offer twice. She further testified that she was not available often to work overtime because of her responsibilities outside the workplace.\n\nFor Mr. Baldasaro, the employer admitted that it treats voluntary and mandatory overtime differently under the national policy. Nothing in the collective agreement prevents the employer from implementing such a policy. The SDS reports do not show that Mr. Baldasaro was treated inequitably.\n\nThe employer referred me to the following decisions: Attorney General of Canada v. Bucholtz et al., 2011 FC 1259; Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board, 2010 PSLRB 85; and Canada (Attorney General) v. Lussier,[1993] F.C.J. No. 64 (F.C.A.).", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-14", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 38–40", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "These two grievances raise important questions about the equitable allocation of overtime among readily available qualified employees. The qualifications required to perform the overtime or the availability of the grievors were not at issue in these grievances. Instead, this decision will focus on the following questions:\n\nA penitentiary operates 24 hours a day, 7 days a week with a complement of staff that cannot be reduced below a certain level. Most of the time, when a correctional officer scheduled for work is absent, he or she should be replaced. Occasionally, emergencies in the penitentiary require the employer to find non‑scheduled officers to work. Because of those operational realities, overtime is frequent for correctional officers. This context needs to be considered when establishing whether the collective agreement allows the employer to assess equitability in overtime allocation on an annual basis.\n\nFirst, the collective agreement does not mention any restrictions and does not provide any guidance about the period for which to assess equitability. Second, nothing in the collective agreement prevents assessing equitability on an annual basis. Third, the case law of both this Board and its predecessor clearly establishes that “equitable” does not mean “equal” and that equitability should be assessed for a term longer than daily. Fourth, most adjudicator’s decisions involving these parties since 2005 assessed equitability on a daily basis, but that was based on the premise that there were established policies or procedures in place at CSC institutions, which implied a daily assessment of the equitable distribution of overtime.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-15", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 41–42", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Since the local procedures for allocating overtime were rescinded in November 2009, nothing prevents the employer from assessing equitability on an annual basis. Considering that there are no restrictions in the collective agreement, the employer has the right to establish a reference period to assess the equitability of overtime offered to correctional officers. It decided to use the fiscal year, starting April 1 and ending March 31, as the period in which to assess equitability. Nothing was adduced in evidence to prove that that period is not reasonable and that it does not permit a fair or reasonable assessment of the equitable allocation of overtime. Furthermore, there is abundant jurisprudence involving these parties or their predecessors confirming that the employer does not violate the collective agreement when it assesses the equitable distribution of overtime annually.\n\nThe employer argued that these two grievances are premature because it was not possible in June or in August 2010 to establish whether equitability in the distribution of overtime was respected. For the employer, the answer to that question would be known only when all offers of overtime over the year were analyzed. The employer also took that position in its reply to the grievances. I do not agree with the employer’s argument. These grievances were not premature. In accordance with the clear wording of section 208 of the Public Service Labour Relations Act,S.C., 2003, c.22 (“the Act”) an employee’s right to grieve is established when he or she “feels aggrieved” and not when he or she is in a position to prove the grievance.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-16", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 43–44", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The evidence shows that both grievors felt aggrieved by the employer when it did not offer them an overtime shift in June or in August 2010. It did not happen at the end of the fiscal year but rather on those dates. Subsection 208(1) of the Act gives employees the right to grieve if they feel aggrieved. It reads as follows: 208. (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved (a) by the interpretation or application, in respect of the employee, of (i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or (ii) a provision of a collective agreement or an arbitral award; or (b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.\n\nStatutorily therefore, Ms. Thiessen and Mr. Baldasaro had a right to grieve the employer’s decision not to call them for overtime in June or in August 2010 respectively within the timeline stated in the collective agreement. Further support for this interpretation is found in clause 21.10 of the collective agreement which states that an employee may present a grievance within specific deadlines after he or she is “notified” or “first become aware of the action or the circumstances giving rise to the grievance” (emphasis added).", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-17", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 45–48", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer replied to these grievances at the final level in November and December 2011 respectively. By then, fiscal year 2010-2011 was over, and the parties would have had access to all the information needed to assess equitability over that fiscal year. The same logic applies to the adjudication hearing. Based on past practices, hearings rarely take place within the fiscal year of the grieved overtime.\n\nI also find that correctional officers could instead accept the employer’s logic and choose to wait to the end of the fiscal year to file their grievance. They could then grieve the inequitable allocation of overtime for the full year. They could also then grieve an inequitable allocation of overtime for a specific date that was not corrected later on during the fiscal year.\n\nI should add that it seems to me that the grievors acted in the manner that best fosters positive labour relations. The grievors, in filing their grievances at the outset, alerted the employer that they felt that there was a problem and gave it time to fix the issue. Had they waited until the end of the fiscal year, the employer would not have been able to correct the alleged inequitable distribution of overtime.\n\nIt is important to again cite the following extract from the text of the national policy, which defines the employer’s understanding of the equitable offering of overtime: Equitable offering of overtime: means that over the fiscal year, management has made every reasonable effort to offer approximately the same amount of overtime hours to one employee as it has to other readily available qualified employees in the same work area. However, some employees may end the recording period with fewer overtime hours worked. [Emphasis in the original]", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-18", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 49–50", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "No national policy on the allocation of overtime can, given the wording of the collective agreement, ignore the issue of how to distribute overtime amongst readily available and qualified employees. In other words, such a policy must deal with who has priority on offers of overtime since the collective agreement requires that the employer make every reasonable effort to distribute overtime on an equitable basis. I have already established that the time period for the evaluation of this obligation can be the fiscal year. I also agree with the employer’s argument that under the terms of the collective agreement, officers are not automatically entitled to an overtime shift even if they have the lowest number of hours of overtime offered in a year. However, that number cannot be ignored by the employer either.\n\nAccording to the national policy, the CMs should consider the number of overtime hours already offered during the year. To do so, they use the SDS, which ranks the officers starting with the one to be paid at time and one-half with the lowest hours of overtime offered. The oral evidence is unequivocal; the CMs respect the order on that list. On that basis, the employer’s well-established practice, since November 2009, is that it offers overtime to officers on the basis of rates of pay and the lowest number of hours of overtime offered. I should also add that the employer needs to have a system in place to build equitability on a yearly basis. It cannot wait a few months before the end of the fiscal year to analyze equitability. In a way, it does that every time it offers overtime.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-19", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 51–52", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "That does not mean that an adjudicator would necessarily be required to allow a grievance if the employee proved that he or she was not called for a specific overtime shift, despite having the lowest number of overtime hours offered. The adjudicator would have to first assess whether that omission resulted in an inequitable allocation of overtime at the end of the fiscal year. That means that the employer could correct the omission later during the year and still allocate overtime equitably. As well, it could be that the employer would have a valid reason to offer the overtime to another employee on the list, but I shall not speculate on what those valid reasons could be.\n\nI must underline the importance of the quarterly reviews and audits which are integrated into the national policy, as explained in Mr. Kearney’s testimony. Those are essential to ensure equitability. Even though the witnesses testified that they perform reviews on request, that is not sufficient to ensure equitability. Discrepancies in overtime allocation will arise only when reviews and audits are done. Obviously, discrepancies cannot be corrected if they are not known.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-20", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 53–55", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In Mungham, and in many other decisions that applied the same logic, the adjudicator concluded that the employer violated the collective agreement because it did not respect its own local policies or procedures on the allocation of overtime. According to those procedures, equitability was assessed daily. According to the national policy, it is assessed annually, but it is allocated for individual shifts on the basis of the number of hours of overtime offered to officers during the year. The main difference between both systems is that, under the national policy, the employer can make corrections during the year and can readjust offering overtime if its national policy and its application results in an inequitable allocation of overtime.\n\nAccording to the national policy and to the SDS, the employer does not compute mandatory overtime hours for which correctional officers were ordered to work. Evidence was adduced at the hearing about overtime hours on the IERT, which are considered mandatory by the employer because officers are expected to work when called. Mandatory overtime can also be worked in emergencies by officers who are not members of the IERT. The grievors disagreed with this distinction between mandatory and voluntary overtime, which distinction, they argued, is nowhere to be found in the collective agreement.\n\nOn that point, I agree with the grievors. Had the parties wanted to make a distinction between the mandatory and voluntary allocation of overtime, they would have written it into the collective agreement and would have excluded mandatory overtime from the equitable distribution of overtime. However, they did not.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-21", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 56–57", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "When the employer calls officers who are qualified to work on the IERT, it is normal that it does not consider other officers with less overtime hours but who are not qualified to work on the IERT. However, it should compute those hours as overtime offered to those qualified employees. By not doing so, the employer puts a systemic bias into the equitable distribution of overtime. It should instead include mandatory hours. This would increase the overtime of those employees and give more overtime opportunities to employees who do not work mandatory hours. At the end of the year, the final figures between employees from both groups would be equitable. Otherwise, there is a strong possibility that the opposite would occur.\n\nThe employer did not submit any jurisprudence to support that mandatory overtime hours should not be counted for the purpose of assessing overtime equitability. Based on the wording of clause 21.10 of the collective agreement and the absence of any distinction between mandatory or voluntary overtime, I conclude that the employer must include the mandatory hours of overtime when assessing equitability in offering overtime. If the employer wants to exclude mandatory overtime from clause 21.10(a), it must obtain the union’s agreement to amend that clause.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-22", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 58–59", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer argued that the proper remedies at adjudication in a case of a violation of the collective agreement should be limited to a declaration that the collective agreement was violated. The employer referred me to Lussier in support of its argument. That decision is of little interest in this case. In Lussier, the adjudicator concluded that the employer violated the collective agreement by refusing vacation leave to an employee. He ordered the employer to pay $100 to the grievor for damages. The Federal Court of Appeal quashed that decision on the basis that the adjudicator exceeded his jurisdiction by awarding such damages. I find that the issue and principles at play in that decision are completely different from those before me in these cases.\n\nThe employer’s position in this case is simply contrary to the prevailing jurisprudence. I raised this point with the employer at the hearing, but it maintained its position. Furthermore, the remedy that it proposes does not fix the prejudice done to employees who would feel aggrieved. I am not sure whether the employer realizes it or simply ignores it, but the reality is that, for example, Mr. Baldasaro would have been paid 11.75 hours at double time had he been called for overtime on August 26, 2010. That represents a loss of more than $700 for him. A declaration does very little to compensate for that loss.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-23", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 60–63", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Considering that grievances are very rarely heard at adjudication in the same fiscal year in which they are filed, and considering the jurisprudence, the proper remedy for an adjudicator is to order the employer to pay a grievor who proves an inequitable distribution of overtime. This is coherent with most of the recent adjudication decisions in this jurisdiction, including Mungham, Weeks, Sturt-Smith, Hunt and Shaw, Casper, Boujikian, and Lauzon.\n\nHowever, in cases in which adjustments can still be made to the overtime allocation of a fiscal year, the employer, within the internal grievance procedure, could offer alternate overtime shifts to compensate for an inequitable distribution of overtime. When the grievance reaches adjudication, it is too late for that solution, and a cash payment becomes the proper remedy.\n\nThe employer admitted that it did not respect its own policy by not offering Ms. Thiessen overtime on June 22, 2010, due to a glitch in the SDS. On that day, Ms. Thiessen should have been called for overtime since she had the lowest number of overtime hours during the year, but she was not because the SDS screen did not show her name as available for that shift, even though she was.\n\nWhen the employer realized that it made a mistake, it tried to correct it by offering Ms. Thiessen another overtime shift. She refused on the basis that she did not want to take an overtime shift away from her co-workers. Later during the year, the employer made another offer to Ms. Thiessen. She would work an overtime shift as an extra person on the roster at a time convenient to her. She refused again because she had a very busy life and was not available.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-24", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 64–65", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "At the end of the year, Ms. Thiessen had been available for 143 hours of overtime but she was not offered any except for the two offers made to her for the missed overtime shift of June 22, 2010. The CM testified that he analyzed Ms. Thiessen’s overtime situation for fiscal year 2010-2011. For each shift that Ms. Thiessen was available, no overtime was offered. That explained why she did not work any overtime during the year. That evidence was not contradicted.\n\nBased on the evidence adduced at the hearing, on all the facts of this case and on the principles established earlier in this decision, I conclude that I must dismiss the grievance. Initially, the employer made a mistake but it tried on two occasions to correct it. It gave choices for the overtime shift that Ms. Thiessen could work. In my opinion, the employer made every reasonable effort to allocate overtime equitably to Ms. Thiessen. I believe her testimony that she has a very busy life. However, she needed at least to make herself available for an eight-hour overtime shift at a time convenient to her and to the employer. She refused to do it and prevented the employer from correcting its mistake.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-25", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 66–67", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Mr. Baldasaro grieved that he should have been called for overtime for an 11.75‑hour shift at double time on August 26, 2010, because he was available and had less hours of overtime than S.H., who was also available at double time. The SDS screen consulted by Ms. Laberge indicated that S.H. had 19.75 hours of overtime offered during the year and that Mr. Baldasaro had 34 hours. On that basis, Ms. Laberge called S.H. to work that shift. However, as the evidence showed, the SDS information used by Ms. Laberge did not include the mandatory overtime hours worked during the year. To respect the collective agreement, the employer should have added those hours so that the full picture of the overtime offered was correct before the August 26, 2010 overtime shift was allocated.\n\nMr. Baldasaro adduced in evidence an SDS report that showed that he had worked 28.75 hours of overtime before August 26, 2010 and that S.H. had worked 42 hours of overtime for the same period. That included the mandatory overtime worked but did not include the hours offered and refused by both officers, which were part of the report used by Ms. Laberge to make her calls for the August 26, 2010 shift. Finally, the employer adduced in evidence a report showing that Mr. Baldasaro worked 9.5 hours of mandatory overtime between April 1 and August 25, 2010.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-26", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 68–69", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "If I add all the hours that should have been computed by the employer by August 25, 2010, I arrive at 43.5 hours of overtime offered to Mr. Baldasaro and at least 42 hours of overtime for S.H. The total for S.H. could be higher, if she refused overtime between April 1 and August 25, 2010. However, I do not have evidence as to the number of hours that she might have refused during that period. Consequently, I have no evidence to prove that Ms. Laberge made the wrong decision, even if she made it with the wrong information. In addition, and as stated earlier in this decision, equitable does not mean equal and the employer is not obliged to offer overtime to the employee with the lowest number of overtime hours. In this case, a difference of one hour does not ground an argument that the allocation of overtime was inequitable. It was not inequitable for Ms. Laberge to offer overtime for the August 26, 2010 shift to S.H. rather than to Mr. Baldasaro.\n\nAnother SDS report adduced at the hearing by the employer showed that, between April 1, 2010 and March 31, 2011, Mr. Baldasaro was offered 104.75 hours of overtime and was ordered to work 9.5 hours of mandatory overtime, for a total of 114.25 hours. He was available to work 1663 hours of overtime. In comparison, S.H. was offered 87.75 hours and was ordered to work 38.5 hours, for a total of 126.25 hours of overtime. She was available for 592.75 hours of overtime. Basically, S.H. was offered or worked 12 more hours of overtime than Mr. Baldasaro during that year. That difference of 12 hours in itself might not be inequitable. However, that must be put in the context that Mr. Baldasaro had 1070 more hours of availability than S.H. did, which is almost 200 percent more.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-27", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 70–72", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The annual comparison between Mr. Baldasaro and S.H. shows major discrepancies. According to the national policy, those types of discrepancies need to be analyzed, as they were in the case of Ms. Thiessen. In Mr. Baldasaro’s case, that was not done. Mr. Marshall testified that those differences could most likely be explained by checking the offers of overtime for every day of the year. I am not sure that Mr. Marshall is right on that point. However, that is not what Mr. Baldasaro grieved. Instead, he grieved the August 26, 2010 shift, and the evidence adduced at the hearing did not prove that he was treated inequitably that day.\n\nA fair amount of time was spent at the hearing on evidence related to information sharing. Almost every witness testified about it. I reported only a small part of that evidence, since it seemed irrelevant to deciding these grievances and the questions in front of me about the interpretation of clause 21.10(a) of the collective agreement.\n\nHowever, the problem of information sharing seems serious, and I believe that it could explain in part why there are more than 500 grievances at adjudication concerning clause 21.10(a) of the collective agreement. No other single clause of any collective agreement for which the Public Service Labour Relations Board has jurisdiction is the object of that many grievances. It would be naive to believe that better communication between the parties would eliminate all those grievances, but I am firmly convinced that it would reduce their number.", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358890-28", + "doc_type": "caselaw", + "act_code": "2012 PSLRB 54", + "act_short": "Baldasaro and Thiessen", + "act_name": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada)", + "section": "", + "citation": "Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54", + "marginal_note": "paras 73–76", + "heading": "Hours of work and overtime under a collective agreement", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The complete application of the national policy and of what it implies, as per Mr. Kearney’s testimony, would be an excellent start to improve communication between the parties. More transparent, understandable and regular automatic reporting and discussions should take place with the union. At the moment, it seems to be done only on a reactive basis. In my opinion, the employer should be more proactive in that respect. It takes time, but it would be worth the effort.\n\nFor all of the above reasons, I make the following order:\n\nMs. Thiessen’s grievance is dismissed.\n\nMr. Baldasaro’s grievance is dismissed. May 04, 2012. Renaud Paquet, adjudicator", + "current_to": "2012-05-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358890/index.do" + }, + { + "id": "fpslreb-358203-1", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 1–3", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "This decision addresses an objection raised by the employer to the jurisdiction of an adjudicator to hear a policy grievance referred to adjudication by the Public Service Alliance of Canada (“the bargaining agent”) under subsection 220(1) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”). Subsection 220(1) reads as follow: 220. (1) If the employer and a bargaining agent are bound by an arbitral award or have entered into a collective agreement, either of them may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally.\n\nThe grievance filed August 31, 2007, challenges an accommodation policy introduced by the Canada Border Services Agency (CBSA) in the course of the arming strategy for its border services officers. The grievance alleges that the policy breaches the non-discrimination clause of the collective agreement. The grievance reads as follows:\n\nClause 19.01 of the collective agreement reads as follows: 19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-2", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 4–6", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "On November 20, 2007, the bargaining agent filed a notice with the Canadian Human Rights Commission in which it stated that all the prohibited grounds of discrimination provided in the Canadian Human Rights Act (CHRA), were involved. On March 28, 2008, the Canadian Human Rights Commission informed the Board that it would participate if a hearing was held on the merits of the grievance.\n\nIn a letter sent to the Public Service Labour Relations Board (“the Board”), the employer articulated its objection to the jurisdiction of an adjudicator as follows: It is the Employer’s position that the above-noted policy grievance does not meet the definition of policy grievance in section 220(1) as it relates to the CDT Strategy which does not form part of the collective agreement and which applies only to Border Services Officers and not to the whole PM bargaining unit (copy attached). Therefore, the CDT Strategy is not a grievable matter and as a consequence, cannot be referred to adjudication. In addition, although the policy grievance is characterized as a violation of article 19 (no discrimination) of the collective agreement, in fact it is challenging the CDT Strategy which is not a grievable matter and therefore is not adjudicable.\n\nThe bargaining agent filed 10 exhibits on consent and did not call any witnesses. The employer called one witness, Calvin Christiansen, Director, Arming Division, Operations Branch, CBSA, who is responsible for the implementation of the arming initiative and related strategies.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-3", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 7–9", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In order to provide background information, counsel for the bargaining agent referred on consent to Treasury Board (Canada Border Services Agency) v. Public Service Alliance of Canada, 2007 PSLRB 22, in which the Board created a new bargaining unit for the Border Services (FB) and modified the Program and Administrative Services (PA) bargaining unit to exclude positions that were allocated to the FB bargaining unit. In that decision, the Board also certified the Public Service Alliance of Canada as bargaining agent for the FB bargaining unit and declared that the PA collective agreement continued to be in force for employees in the FB group. This collective agreement still applies today to the employees of the FB group.\n\nThere is no real dispute with respect to the relevant facts that led to the filing of the grievance.\n\nThe arming initiative of border services officers was launched in 2006. Different groups of employees will be armed. Among them are the border services officers who work at land and marine ports of entry, regional intelligence officers, criminal investigators, and inland enforcement officers. It was also established that other groups of employees are not expected to be armed, such as border services officers assigned to postal operations and airports. When the initiative is fully implemented, approximately 4450 employees in the bargaining unit will be armed. Although the parties could not agree on the exact number of employees in the bargaining unit who will be affected by the arming initiative, they agreed that between 56 and 71 percent of the employees will be armed and are likely to be affected by the policy at issue.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-4", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 10–13", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Within the arming strategy, the employer introduced the Arming and Control and Defense Tactics (CDT) and Arming Programs. The firearm training program, which includes the CDT training, consists of a three-week course that employees must successfully complete before they can be assigned to an armed position. They must also maintain proficiency throughout the duration of their assignment to an armed position.\n\nThe employer has adopted a phase-in approach and intends to implement the arming initiative over a period of 10 years. Up to now, the arming of current border services officers has been done on a voluntary basis, and 500 officers have successfully completed the firearms training program and have been deployed to different locations.\n\nIn July 2007, the employer introduced the contested policy: Accommodation Strategy Relating to Arming and Control and Defence Tactics (CDT) (“the policy”). The policy addresses accommodating employees who are unable to undergo or successfully complete the firearm training program.\n\nIn the policy, the employer states that the CDT and Arming Programs are mandatory, but acknowledges the inability of some employees to undertake the training for reasons related to prohibited grounds of discrimination. The employer also recognizes that those employees must be accommodated.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-5", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 14–16", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The policy states how the employer perceives the scope of its duty to accommodate: The Duty to Accommodate By law, the CBSA is obliged to make every reasonable effort, short of undue hardship, to accommodate an employee who legitimately falls into one or more of the above categories. This means that, where an accommodation is warranted, it is the Agency’s obligation to accommodate the impacted employee, short of undue hardship, in a position or grouping of duties that are commensurate with the employee’s current duties. Where duties at an equivalent level are not identified, the Agency is obliged to consider positions or duties that are classified at a lower level. It should be noted that in cases where lower level duties are identified, the accommodated employee is not entitled to salary protection. The CBSA must first consider opportunities for accommodation at the employee’s present workplace. If no opportunity is identified, there is an obligation to consider opportunities elsewhere in the CBSA beginning with ports or offices within the District or geographical area where the affected employee is assigned. If an opportunity is identified, an offer must be made. If no opportunities are identified, or if the employee refuses the alternative offer, the employee will be terminated for non-disciplinary reasons, as they do not meet the conditions of employment and they cannot be accommodated up to the point of undue hardship.\n\nThe objective of the policy is set out as follows: The objective of the CDT/Arming accommodations strategy is to:\n\nCounsel for the employer argued that the issue raised in the grievance is not an appropriate matter for a policy grievance filed under subsection 220(1) of the Act.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-6", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 17–19", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the employer outlined that the legislator introduced the policy grievance with the adoption of the Act, which came into effect on April 1, 2005. Under the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“the former Act”), the concept of a policy grievance did not exist, although a party could make a “referral” to the Board under section 99 of the former Act when seeking the enforcement of an obligation arising out of a collective agreement where the obligation could not be enforced through an individual grievance. According to the employer, the policy grievance is designed to be restrictive, and individual grievances should remain the general rule. A policy grievance should be viewed as an exception within the statutory regime provided in the Act and should be limited in its scope.\n\nCounsel for the employer submitted that the grievance filed by the bargaining agent does not meet the conditions set out in subsection 220(1) of the Act, since the issue raised does not relate to a collective agreement dispute and does not relate to the bargaining unit generally.\n\nWith respect to the first condition, counsel for the employer argued that subsection 220(1) of the Act confines a policy grievance to collective agreement issues. The matter at issue has to be “… in respect of the interpretation or application of the collective agreement … .” If a policy has not been incorporated in the collective agreement, it does not form part of the collective agreement and is therefore not subject to adjudication under subsection 220(1) of the Act. Since the policy challenged in this case has not been incorporated in the collective agreement, it cannot be challenged through a policy grievance.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-7", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 20–22", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In support of his argument, counsel for the employer referred to Rootham, Labour and Employment Law in the Federal Public Service (2007), at 305: … Since many public sector collective agreements incorporate Treasury Board policies (especially the Terms and Conditions of Employment Policy), policy grievances could be brought as the result of the interpretation of those Treasury Board policies incorporated into collective agreements…\n\nCounsel for the employer also submitted that the legislator did not intend that the introduction of the policy grievance open the door for every policy adopted by an employer to become subject to adjudication, or that the policy grievance become a vehicle challenging every policy under article 19 of the collective agreement on a generic basis, without factual context. Such a liberal interpretation would result in a proliferation of litigation and would have serious implications for human resources management.\n\nCounsel for the employer added that the application of the policy could eventually give rise to individual grievances being filed by employees alleging that they have been adversely impacted by the policy, although the actual impact of the accommodation policy on individuals is speculative at this point.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-8", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 23–24", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "With respect to the second condition set by subsection 220(1) of the Act, counsel for the employer argued that the expression “’the bargaining unit generally” means the whole bargaining unit, and not a portion of it, even if it is a large portion. The language used by the legislator clearly indicates that the matter at issue must affect all of the employees in the bargaining unit and not just a portion of the employees. A policy grievance is intended to be limited to challenging policies that apply to virtually all of the employees in the bargaining unit, although counsel for the employer conceded that there could be material exceptions. Matters affecting a portion of the employees in the bargaining unit must be raised through either an individual or group grievance.\n\nCounsel for the employer submitted that in the present case a significant number of employees will not be subject to the arming initiative and are therefore not likely to be affected by the policy at issue. Consequently, the matter raised in the grievance cannot be said to relate to the “bargaining unit generally,” and is therefore not subject to a policy grievance.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-9", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "para 25", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "To support his proposition, counsel for the employer again referred to Rootham, at 304: The real question for adjudicators will be what constitutes a matter that “relates to either of them or to the bargaining unit generally.” In the private sector, there is a fairly broad discretion for unions to bring policy grievances… However, the use of the term “the bargaining unit generally” may be interpreted to limit the scope of policy grievances so that only matters that affect the entire bargaining unit may be the subject of a policy grievance. Also, section 232 of the PSLRA explicitly limits an adjudicator’s remedial jurisdiction in policy grievances. Where the matter could have been the subject of an individual or group grievance, the adjudicator may only grant declaratory relief and may not grant damages or other individual relief as in the private sector. This may incline the Board to take a more limited view of what constitutes a proper policy grievance. In Canadian Broadcasting Corp. and National Association of Broadcast Employees and Technicians, the arbitration panel set out the four general classifications of grievances: The use of “all members of the bargaining unit” as interchangeable with “members of the bargaining unit generally” in the fourth example may support the proposition that a policy grievance under the new PSLRA must affect the entire bargaining unit, and not just some portion thereof. However, it is also clear that the impact on bargaining unit members could be speculative or predicated on some future event — meaning that the entire bargaining unit need not have suffered actual harm yet…", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-10", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 26–28", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the employer also referred to the definition of the word “general” as found in The Shorter Oxford English Dictionary (1978): “pertaining to all, or most, of the parts of a whole; completely or approximately universal within implied limits … Concerned with the whole … Not specifically limited in application; applicable to a whole class of objects, cases, or occasions.” The word “generally” for its part is defined as follows: “so as to include all; as a whole, collectively … Universally; with respect to all or nearly all.” Le Nouveau Petit Robert (2002), defines “général” as follows: “Qui s’applique, se réfère à un ensemble de cas ou d’individus … Qui s’applique à l’ensemble ou à la majorité des cas ou des individus d’une classe … Qui s’intéresse, réunit sans exception tous les individus, tous les éléments d’un ensemble.” Counsel for the employer stated that these definitions imply the idea of the totality of a group and not a portion of a group. The same idea must be retained in the context of subsection 220(1) of the Act.\n\nCounsel for the bargaining agent argued that this matter was appropriately filed as a policy grievance under subsection 220(1) of the Act.\n\nThe bargaining agent does not agree with the employer’s proposition that only policies incorporated into the collective agreement are subject to adjudication. Counsel for the bargaining agent submitted that, although the employer is entitled to adopt and implement policies, that power must always be exercised in a manner consistent with the collective agreement. Any policy introduced by the employer, whether incorporated into the collective agreement or not, is subject to adjudication if it allegedly violates a provision of the collective agreement.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-11", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 29–30", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "When a grievance alleges that the employer’s policy violates a provision of the collective agreement on its face, that grievance may be filed as a policy grievance under subsection 220(1) of the Act. In this case, the bargaining agent alleges that by introducing and implementing the policy at issue, the employer violated article 19 of the collective agreement. Counsel for the bargaining agent argued that nothing supports a more restrictive application of article 19 or suggests that it does not provide a substantive right on a stand-alone basis. To the contrary, article 19, which reflects the CHRA, clearly provides substantive rights that have a quasi-constitutional status. On that matter, counsel for the bargaining agent referred to Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,2003 SCC 42. He submitted that not permitting a bargaining agent to file a policy grievance against a policy that is allegedly discriminatory would offend human rights principles. He also referred to Barr and Flannery v. Treasury Board (Department of National Defence), 2006 PSLRB 85, where the adjudicator retained jurisdiction with respect to grievances challenging the employer’s policy solely under the non-discrimination provision of the applicable collective agreement.\n\nMoreover, the Act, as opposed to the former Act, expressly gives the Board jurisdiction to hear matters relating to human rights and empowers it to interpret and apply the CHRA.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-12", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "para 31", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the bargaining agent argued that a restrictive interpretation of subsection 220(1) of the Act,limiting the employers’ policies that can be challenged to those policies incorporated in the collective agreement, would be contrary to the intent and purpose of the Act. This argument was articulated as follows in the “Outline of Legal Submissions” that counsel for the bargaining agent provided to me in support of his oral arguments: 14. Were the employer’s restrictive interpretation of policy grievances under subsection 220(1) adopted, employers could insulate any violation of a collective agreement from adjudication merely by implementing policies outside the collective agreement. This cannot be consistent with the purpose or intent of the PSLRA, as such an interpretation would permit the employer to violate terms and conditions it has negotiated with the bargaining agent merely by introducing a new policy subsequent to negotiation of the collective agreement. 15. PSAC submits that, in the context of labour relations, justice would be ill-served if management could simply hide behind its authority to implement policies in order to bypass a full assessment of the compliance of its actions with the collective agreement, as provided for under the PSLRA. Such a conclusion would be untenable and would run entirely contrary to the purpose and intent of the PSLRA in general, and of subsection 220(1) in particular.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-13", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 32–34", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the bargaining agent submitted that the Act clearly contemplates the possibility for a bargaining agent to challenge a policy by filing a policy grievance when the bargaining agent alleges that the policy per seviolates the collective agreement and contemplates the possibility for employees to challenge the impact of the application of the policy through an individual or a group grievance. Section 232 of the Act clearly provides for specific and different remedies when the two recourses coexist with respect to the same matter.\n\nWith respect to the employer’s second argument, counsel for the bargaining agent submitted that, since the grievance alleges that the policy violates article 19 of the collective agreement, which is a provision of the collective agreement that applies to the entire bargaining unit, the dispute relates to the bargaining unit generally. He insisted that it is the policy itself that is at stake, and that, at this point, individual circumstances are secondary.\n\nCounsel for the bargaining agent also submitted that the employer’s proposition, which is that unless a subject matter affects every employee in the bargaining unit it cannot give rise to a policy grievance, is unreasonable and is much too restrictive to serve the purpose of policy grievances. The expression “the bargaining unit generally” must be interpreted in a manner consistent with labour relations principles, with the jurisprudence and with the intent and purpose of the Act. Should the employer’s interpretation be adopted, it would almost eliminate the possibility for a bargaining agent to file a policy grievance.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-14", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "para 35", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "With respect to the broad labour relations jurisprudence, counsel for the bargaining agent referred to Brown and Beatty, Canadian Labour Arbitration, 4th ed., at para 2:3124: A policy grievance is usually considered to be one that does not depend upon the behaviour of an individual employee, or one that does not affect a specific individual. As indicated, policy grievances have been described as union or policy grievances where the subject-matter of the grievance is of general interest and where individual employees may or may not be affected at the time that the grievance is filed. [Emphasis added]", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-15", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "para 36", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the bargaining agent submitted that there is no indication in the jurisprudence that the matter at issue must affect every member of the bargaining unit. He referred specifically to the following cases: International Union of Electrical Workers, Local 549, v. Sylvana Electric (Canada) Ltd. (1972), 24 L.A.C. 361; St. Joseph’s Hospital v. SEIU, Local 204 (1997), 65 L.A.C. (4th) 160; and Governing Council of University of Toronto v. CUPE, Local 3902-Unit 3 (2006), 150 L.A.C. (4th) 409. Relying on that jurisprudence, counsel for the bargaining agent articulated the following argument in his “Outline of Legal Submissions”: 30. In each of these cases, it is clear that policy grievances are regarded as a mean to address matters of concern to the bargaining unit generally, in the sense that they raise issues that may affect any number of individual bargaining unit members, or the bargaining unit as a whole. Given the foregoing jurisprudence, it is PSAC’s submission that “the bargaining unit generally” should be interpreted to mean the bargaining unit broadly, though not necessarily comprehensively. In the present case, PSAC submits that the issue of whether the Strategy is discriminatory constitutes a matter overriding interest to the union concerning the interpretation and application of a specific provision of the collective agreement, namely Article 19, as it may broadly affect members of the FB bargaining unit.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-16", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 37–38", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the bargaining agent argued that the expression “the bargaining unit generally” should be interpreted in a manner consistent with the principles of statutory interpretation and with the purpose and intent of statutory labour relations regimes, which support the proposed interpretation of “the bargaining unit generally” as referring to the bargaining unit broadly. In this instance, the policy will apply to a majority of the employees in the bargaining unit.\n\nCounsel for the bargaining agent referred to section 232 of the Act, which clearly contemplates the possibility of a policy grievance being filed in situations concerning only certain individuals within the bargaining unit. In light of the presumption of coherence in statutory interpretation, it would then be absurd to interpret “the bargaining unit generally” noted in subsection 220(1) leading to the requirement that the policy grievance concerns all the members of the bargaining unit.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-17", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 39–41", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Counsel for the bargaining agent also referred to other sections of the Act in which the legislator refers specifically to portions of or the totality of the members in the bargaining unit by using the terminology “the employees in a bargaining unit,” “a majority of the employees in a bargaining unit” or “all of the employees in the bargaining unit,” rather than using the broader expression “the bargaining unit generally.” If the legislator intended policy grievances to be limited to matters affecting all of the employees in the bargaining unit, the legislator would have stated it as clearly as in other provisions of the Act. Subsection 220(1) of the Act does not state “all of the employees in the bargaining unit,” and was drafted to include a large scope of policy grievances as means of resolving disputes between employers and bargaining agents.\n\nCounsel for the bargaining agent also relied on the French version of subsection 220(1) of the Act, which states “l’unité de négociation de façon générale,” which, according to the Collins-Robert French-English/English-French Dictionary, 6th ed. (2002), “façon” meaning “way” or “manner” and “générale” meaning “generally speaking” or “as a general rule.” These definitions are consistent with “the bargaining unit generally” in the English version interpreting to mean “broadly” or “in a general sense” rather than “the bargaining unit comprehensively.”\n\nCounsel for the bargaining agent contended that the bargaining agent’s role as a “watchdog” of the integrity of the collective agreement gives it a personal interest when a policy on its face contradicts the collective agreement. Therefore, such a matter should be considered as relating to “the bargaining unit” within the meaning of subsection 220(1) of the Act.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-18", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 42–45", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In conclusion, counsel for the bargaining agent proposed that subsection 220(1) of the Act should be viewed “as providing a mechanism for addressing on a principle level matters of broad concern to the members of the bargaining unit.” The possibility of seeking a declaratory ruling and avoiding the filing of individual grievances is in both parties’ interests, and is consistent with the Act and with labour relations principles.\n\nCounsel for the employer submitted that I should be very cautious when considering private sector jurisprudence since, dispute resolution regimes in the private sector are different from the public service statutory regime. He also distinguished the jurisprudence referred to by counsel for the bargaining agent from the case at hand as relying on the language of the respective collective agreements, which is different than the language used by the legislator in subsection 220(1) of the Act.\n\nCounsel for the employer insisted that the adoption of a broad interpretation allowing every policy not incorporated into the collective agreement to be subject to adjudication would lead to a proliferation of litigation, would have grave impacts on human resources practices and would restrict the employer from issuing guidelines and policies.\n\nThis case raises the question of whether the bargaining agent can rely on subsection 220(1) of the Act to challenge a policy introduced by the employer that will affect a large portion of the employees in the bargaining unit, on the basis that the policy is inconsistent with a provision of the collective agreement.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-19", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 46–50", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "For the reasons detailed below, I conclude that the matter at issue was properly presented in accordance with subsection 220(1) of the Act, and that I have jurisdiction to consider the merits of the grievance pursuant to section 221 of the Act.\n\nThe concept of “policy grievance,” along with the concept of “group grievance,” was introduced by the Act, which came into effect on April 1, 2005.\n\nThe introduction of two new types of grievances in addition to the individual grievances raises the questions of how the legislator intended the new grievances’ structure to operate and the intended scope of each type of grievance, including, more specifically, the policy grievance.\n\nSubsection 220(1) of the Act reads as follows: 220.(1) If the employer and a bargaining agent are bound by an arbitral award or have entered into a collective agreement, either of them may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally. [Emphasis added]\n\nThe French version reads as follows: 220.(1) Si l’employeur et l’agent négociateur sont liés par une convention collective ou une décision arbitrale, l’un peut présenter a l’autre un grief de principe portant sur l’interprétation ou l’application d’une disposition de la convention collective ou de la décision relativement a l’un ou l’autre ou a l’unité de négociation de façon générale. [Emphasis added]", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-20", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 51–53", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "I do not agree with the employer’s proposition that subsection 220(1) or any other provision of the Act suggests that policy grievances should be used as an exception. Individual grievances are likely to be more frequent than policy grievances by reason of their respective natures. However, in my view, the formulation of the Act in general and the language of the provisions pertaining to the three types of grievances do not suggest any hierarchy or level of importance among the different types of grievances. Moreover, section 232 of the Act clearly contemplates the possibility of there being a policy grievance and an individual grievance on the same matter, with the remedies being specific for each type of grievance. However, the legislator imposed specific conditions that must be satisfied for each type of grievance.\n\nA policy grievance filed under subsection 220(1) of the Act must satisfy the following conditions:\n\nWith respect to the first condition, I conclude that the issue in the present case relates to the interpretation or application of a provision of the collective agreement, namely article 19. I do not agree with the employer’s proposition that a policy is not subject to adjudication if it is not incorporated into the collective agreement.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-21", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "para 54", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Within its general right to manage, the employer is empowered to adopt and implement policies unilaterally. However, the discretion of the employer’s action is limited by the provisions of the collective agreement. The compliance of employer policies with the collective agreement has generally been viewed as being adjudicable. Brown and Beatty, at para 4:1520, addresses the subject as follows: Even where such rules do not form part of the agreement, it is now generally conceded that in the absence of specific language to the contrary in the collective agreement, the making of such rules lies within the prerogative or initiative of management, and arbitrators have held this to be so whether or not an express management’s rights clause exists reserving the right of management to direct the workforce. However, this rule-making power is neither absolute nor without limitation. Rather, as summarized in KVP Co., a number of principles relating to this power have now become universally accepted among arbitrators. These principles provided that: A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites: Reformulated, these criteria may be said to require that any plant rules which are unilaterally promulgated must not be inconsistent with the terms of the collective agreement, their enforcement not be unreasonable, and they must be brought to the attention of those intended to be regulated by them.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-22", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 54–55", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "With respect to the first requirement, arbitrators have uniformly held that a unilaterally promulgated rule must not violate an express provision in the collective agreement, unless overridden by legislation… And to determine whether the rule infringes upon subject-matters occupied by a provision of the collective agreement, the arbitrator must compare the rule with the terms of the collective agreement…\n\nEvery policy adopted by an employer, whether incorporated into the collective agreement or not, is subject to adjudication if the dispute relating to the policy concerns its compliance or consistency with the collective agreement. In my view, this is precisely what section 220 of the Act contemplates.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-23", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "para 56", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In this case, the bargaining agent alleges that the policy introduced by the employer violates the non-discrimination clause (article 19) of the collective agreement. This is clearly a matter “… in respect of the interpretation or application of the collective agreement … ,” and the grievance, therefore, meets the first condition of subsection 220(1) of the Act. I do not see how and why article 19 could not be viewed as a stand-alone clause, given that human rights matters clearly involve substantive rights. Clause 19.01 reflects the provisions of the CHRA by setting out prohibited grounds of discrimination and other employer actions. Moreover, paragraph 226(1)g) of the Act empowers an adjudicator to interpret and apply the CHRA, and subsection 220(2) clearly contemplates the possibility for a policy grievance to be filed with respect to matters raising human rights issues. In Parry Sound (District) Social Services Administration Board, the Supreme Court of Canada reaffirmed the substantive character of human rights and clearly stated that the employer’s management rights were limited by human rights provisions in the collective agreement and in the legislation, and were subject to adjudication.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-24", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 56–57", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Although the Supreme Court was interpreting the Ontario human rights legislation, the principles outlined by the Court are relevant to interpret article 19 of the collective agreement: 23 … Under a collective agreement, the broad rights of an employer to manage the enterprise and direct the work force are subject not only to the express provisions of the collective agreement, but also to statutory provisions of the Human Rights Code and other employment-related statutes… 28 … [T]his means that the substantive rights and obligations of employment-related statutes are implicit in each collective agreement over which an arbitrator has jurisdiction. A collective agreement might extend to an employer a broad right to manage the enterprise as it sees fit, but this right is circumscribed by the employee’s statutory rights… 51 … Recognizing the authority of arbitrators to enforce an employee’s statutory rights substantially advances the dual objectives of: (i) ensuring peace in industrial relations; and (ii) protecting employees from the misuse of managerial power.\n\nI now come to the second statutory condition set out in subsection 220(1) of the Act and conclude, for the reasons that follow, that the matter at issue relates to the “bargaining unit generally” and therefore meets the condition.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-25", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 58–61", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "In my view, the phrase “… as it relates to . . . the bargaining unit generally,” should be interpreted as referring to matters that are of a general interest to the community that forms the bargaining unit, without requiring that every employee in the bargaining unit be affected by the policy. When the issue concerns the content of a policy, as opposed to a situation where an employee or a group of employees feel aggrieved by the application of a policy in respect of him or them in a given set of circumstances, the issue is of a general interest to the community that forms the bargaining unit, and should be considered to be related to the “bargaining unit generally.”\n\nI consider this interpretation consistent with the purpose and intent of the Act, with the specific language used by the legislator in subsection 220(1), and with labour relations principles and jurisprudence.\n\nThe preamble of the Act is helpful to understanding the purpose and object of the Act. As dictated by section 13 of the Interpretation Act: “The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object.”\n\nThe preamble of the Act states: Recognizing that the Government of Canada is committed to fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment; the Government of Canada recognizes that public service bargaining agents represent the interests of employees in collective bargaining and participate in the resolution of workplace issues and rights disputes; commitment from the employer and bargaining agents to mutual respect and harmonious labour-management relations is essential to a productive and effective public service;", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-26", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 62–63", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The provisions of the Act, and specifically subsection 220(1), should be interpreted in light of the commitments, principles and objectives outlined in the preamble.\n\nWith the enactment of Part 2 of the Act, Parliament established three types of grievances, which constitute a comprehensive code for bringing up labour relations rights disputes between the employer, bargaining agents and employees, in particular those arising out of the interpretation or application of a collective agreement or arbitral award. It can be inferred from the enactment of two new types of grievances, the group and the policy grievance, that it was apparently Parliament’s intention to replace the existing redress provisions through which the resolution of workplace disputes could be addressed and adjudicated, by more practical (group) and timely (policy) vehicles for the enforcement of rights arising under the collective agreement. I believe that, in light of the preamble to the Act, those provisions should be interpreted liberally, in a manner consistent with section 12 of the Interpretation Act, which reads as follows: 12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-27", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "para 64", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "An accessible adjudication system for disputes that arise from the collective agreement or an arbitral award is important to ensure respectful and sound labour-management relations, and is consistent with an “… efficient resolution of matters arising in respect of terms and conditions of employment …” within a context of “… mutual respect and harmonious labour-management relations …” Those principles suggest a liberal interpretation of the scope of a policy grievance and of the expression “the bargaining unit generally.” In Parry Sound (District) Social Services Administration Board, at para 50, the Supreme Court of Canada reiterated the importance of an efficient disputes resolution system: “… As this Court has repeatedly recognized, the prompt, final and binding resolution of workplace disputes is of fundamental importance, both to the parties and to society as a whole…”", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-28", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "para 65", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "When a policy or another employer’s action is challenged on the basis that it contravenes a provision of the collective agreement on its face, it is in the interest of all parties that the matter be resolved promptly, on a principle basis. In that regard, the French designation of “grief de principe” is revealing of the objective of this provision. It is also interesting to note that section 221 of the Act provides that a policy grievance may be referred directly to adjudication, whereas individual and group grievances may be referred to adjudication only after they have been presented up to and including the final level in the grievance process. Moreover, I do not believe it would be efficient or fair for employees to have to be adversely impacted by a policy before it could be subject to adjudication. Section 232 of the Act clearly implies that the legislator intended that a policy could be challenged on a principle basis through a policy grievance with suitable remedial authority given to the adjudicator, without the parties having to wait for the individual impacts arising from the application of the policy. This procedure can also avoid a multiplicity of proceedings and favours an early consideration and adjudication of the alleged violation of the collective agreement resulting from management actions which affect its employees broadly.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-29", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 66–67", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "A liberal interpretation of the expression “. . . as it relates to … the bargaining unit generally” — meaning matters that are of a general interest to the community that forms the bargaining unit — is also consistent with the language used in the Act. Had the legislator intended that policy grievances be limited to policies or situations affecting all of the employees in the bargaining unit, the legislator would have stated it clearly by using language such as “relates to all of the employees in the bargaining unit” or “to the bargaining unit in totality” or “to the entirety of the bargaining unit.” The use by the legislator of a more general language supports a less restrictive scope for policy grievances than suggested by the employer.\n\nLimiting the possibility of challenging a policy through a policy grievance to policies or situations that apply to all of the employees in a bargaining unit would seriously limit the usefulness of this dispute-resolution vehicle, especially when we consider the large scope of several bargaining units in the federal public sector, which Parliament is presumed to have been aware of, and would, in my view, undermine the objectives of the Act.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-30", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 68–69", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "My understanding of the purpose of a policy grievance is to provide a forum through which issues relating to the application and interpretation of provisions of the collective agreement or an arbitral award are resolved on a principle basis. As I stated earlier, this is reinforced by section 232 of the Act which provides the adjudicator with declaratory powers and the ability to issue a compliance order, but no mention is made of individual redress. In such a context, I do not see the relevance of distinguishing between those policies affecting all of the employees in the bargaining unit and those affecting only a portion of the employees in the bargaining unit: the number of employees potentially affected is irrelevant to the determination of whether the employer is in principle in breach of the collective agreement. I cannot think of any policy reason why Parliament would have required that every employee included in a bargaining unit necessarily had to be affected by an employer action before a policy grievance could be presented.\n\nThe interpretation that I propose for the phrase “… [that the matter] relates to the bargaining unit generally” is also more consistent with the French version of subsection 220(1) of the Act,which refers to “… [matters that relate] à l’unité de négociation de façon générale.” The legislator did not state that the matter had to relate to “toute l’unité de négociation” or to “tous les fonctionnaires au sein de l’unité de négociation.” Clearly, what is intended here is that the matter must relate to an alleged violation of the collective agreement in principle, as opposed to a situation involving an aggrieved employee seeking specific corrective action by way of an individual (or group) grievance.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-31", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "para 70", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "That interpretation is also consistent with the state of the jurisprudence with respect to policy grievances. On that matter, I rely on the extract from Brown and Beatty referred to by counsel for the bargaining agent, and on the authors, Blouin and Morin of Droit de l’arbitrage de grief, 5th ed. (2000), who, at page 169, offer a useful definition of policy grievance, which they refer to as a union grievance: [Translation] III.43 – A grievance by a union, in its capacity as a representative, relates to matters that affect the interests of the community of employees included in the bargaining unit. Thus, a grievance about compliance with procedures regarding position posting, promotions or transfers or the establishment of an employer policy on a working condition, to name only a few examples, can be filed as a union grievance. Such initiatives are based on the union’s duty as a signatory and administrator of the collective agreement to ensure the full application of each provision of that agreement for the benefit of the collective interest… [Emphasis added]", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-32", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 71–72", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "The employer relied on the decision in Canadian Broadcasting Corp. I believe that it is important to keep in mind that the issue in that case was different from the one in this case and that the question of whether a policy grievance could be filed with respect to a policy affecting only a portion of the employees in the bargaining unit was not at issue. The policy at issue in Canadian Broadcasting Corp. clearly applied to all of the employees in the bargaining unit, and the only issue to be determined was whether the policy could be challenged through a policy grievance rather than through individual grievances. I believe that the terminology used by the arbitrator in defining and distinguishing the individual and group grievances from the policy or hybrid type of grievances and more specifically the use of “all members of the bargaining unit” as interchangeable with “members of the bargaining unit generally” must be viewed in light of the context of the grievance at issue. The situation in that case did not require any nuance with respect to the definition of a “policy grievance”, since the question relating to the policy affecting a portion of employees of the bargaining unit as opposed to the totality of the employees in the bargaining unit was not at issue. Therefore I do not believe that the reference by the arbitrator to the expression “that is of concern to all members of the bargaining unit” can be read to provide support to a proposition requiring that in all circumstances, a policy grievance should be limited to subject-matters that concern all the employees in the bargaining unit.\n\nMy interpretation of subsection 220(1) of the Act leads me to conclude that I have jurisdiction to consider the merits of this case.", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-358203-33", + "doc_type": "caselaw", + "act_code": "2008 PSLRB 84", + "act_short": "PSAC v TB (pay)", + "act_name": "Public Service Alliance of Canada v. Treasury Board", + "section": "", + "citation": "Public Service Alliance of Canada v. Treasury Board, 2008 PSLRB 84", + "marginal_note": "paras 73–75", + "heading": "Collective agreement and pay administration policy grievance", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "For all of the above reasons, I make the following order:\n\nThe employer’s objection to my jurisdiction is dismissed.\n\nThe parties will be contacted by the Board’s Registry to schedule a continuation of the hearing on the merits of this policy grievance. October 16, 2008. Marie-Josée Bédard, adjudicator", + "current_to": "2008-10-16", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/358203/index.do" + }, + { + "id": "fpslreb-360456-1", + "doc_type": "caselaw", + "act_code": "2003 PSSRB 52", + "act_short": "Kinhnicki", + "act_name": "Kinhnicki v. Canada Customs and Revenue Agency", + "section": "", + "citation": "Kinhnicki v. Canada Customs and Revenue Agency, 2003 PSSRB 52", + "marginal_note": "excerpt 1", + "heading": "Occupational health and safety; a refusal to work in a customs context", + "part": "Federal Public Sector Labour Relations and Employment Board", + "division": "", + "text": "Public Service Staff Relations Act\n\nBefore the Public Service Staff Relations Board\n\nBETWEEN LINDA KINHNICKI AND TERRY DUPUIS Complainantsand CANADA CUSTOMS AND REVENUE AGENCY Employer\n\nHeard at Saskatoon, Saskatchewan, January 14 and 15, 2003.\n\nFrancine Chad Smith, Q.C., Board Member\n\nDATED this 26th day of June 2003.", + "current_to": "2003-06-26", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fpslreb-crtespf.gc.ca/fpslreb-crtespf/d/en/item/360456/index.do" + }, + { + "id": "cirb-519772-1", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 1–7", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "This decision is about the union’s duty of fair representation (DFR) towards its members in the face of a mandatory vaccination policy unilaterally implemented by the employer. The specific issue to be determined in this case is whether the union’s decision not to pursue a policy grievance contesting the employer’s mandatory vaccination policy, despite the insistence of a group of bargaining unit members, was arbitrary, discriminatory or made in bad faith.\n\nFor the reasons that follow, the Board finds that, in this case, the union did not breach its DFR by refusing to file a policy grievance with respect to the employer’s mandatory vaccination policy.\n\nThe complainant, Ms. Ingrid Watson (the complainant), is a flight attendant (cabin personnel) with Air Canada (the employer). She is a member of the bargaining unit represented by the Canadian Union of Public Employees – Air Canada Component (CUPE ACC or the union) and has almost 23 years of service with Air Canada. She works out of the Air Canada base in Calgary, Alberta, and is part of CUPE Local 4095.\n\nA collective agreement is in effect between the parties.\n\nMs. Watson is on a full-time flight release and is designated by Local 4095 as the Chair of the local preferential bidding system (PBS) committee. She has been a member of the PBS committee since 2011. In this role, she and other members of the committee develop monthly schedules in accordance with employee preferences and seniority to meet Air Canada’s operational and classification requirements.\n\nMs. Watson indicates that prior to the pandemic, she worked a portion of her time from home.\n\nThe chronology of events is straightforward and largely uncontested as it is based on email announcements and email exchanges.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-2", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 8–10", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "On August 13, 2021, the Government of Canada announced its intent to require all employees in the federally regulated air, rail and marine transportation sectors to be vaccinated by no later than the end of October 2021. This government policy would extend to employees in these sectors and also to certain travellers. The union communicated an update to its membership by email that same day, sharing this government announcement and indicating its support for vaccination as a proven strategy to mitigate the threat of COVID-19.\n\nOn August 19, 2021, the union sent out a message to all members through its members’ portal in which it indicated that it had sought a preliminary legal opinion regarding the government’s announcement of a mandatory vaccination policy in the air transportation industry. In that communication, the union provided a link to a copy of the legal opinion for members to consult.\n\nAir Canada announced on August 25, 2021, that it was implementing a mandatory vaccination policy that would apply to all employees working for it. The policy required that all employees be fully vaccinated by October 31, 2021, subject to the employer’s duty to accommodate. In this communication, Air Canada asked employees to report their vaccination status through the vaccination reporting tool no later than September 8, 2021. It also indicated that “failure to be fully vaccinated by October 30, 2021 will have consequences up to and including unpaid leave or termination, except for those who qualify for accommodation.”", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-3", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "para 11", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "A set of questions and answers accompanied the vaccination requirement announcement. The consequences of choosing not to get vaccinated were presented as follows: 13. What happens if I choose not to get vaccinated? I understand I won’t be able to travel but I’m fine with that. A: We understand that there will be a small number of people who will want to be exempt for medical or other substantiated reasons; we will evaluate those on a case-by-case basis. While we will meet all our Duty to Accommodate obligations, we expect there will be very few circumstances in which exemptions would be granted. Consequences will be up to and include unpaid leave and termination. Employees who choose not to get vaccinated would ultimately be unable to fulfill their roles and the applicable terms of the appropriate collective agreements or management policies may come into effect. More information will be outlined in the policy once it is finalized following discussions with Health and Safety representatives and our union partners.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-4", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "para 12", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "There was also information provided regarding the suspension of bidding for in-flight personnel who did not report and document their first vaccination by September 8, 2021: 17. Will there be a grace period if I don’t get vaccinated in time? A. Our deadlines are informed by current Canadian government advice regarding the implementation of mandatory vaccination. However, we are also focused on meeting that timeline before the end of the Fall and the beginning of our busy holiday season. This does not give us much leeway. In order to plan our operation and fulfill our obligations to our customers, Air Canada requires sufficient time to assess how many of our employees will have chosen to be vaccinated. This means that our dates for first vaccinations, full vaccinations, reporting and documentation should be considered firm. We do not plan to extend a grace period, except (and only where necessary) in certain international locations where we have determined vaccines are not accessible within our time frame. In these cases, safety measures and precautions will remain in place in those locations to ensure everyone’s safety. That said, we urge employees in these locations to make all efforts to obtain their vaccinations as quickly as possible. Deadlines are as follows: Sept. 8: All vaccinated employees must report their status and upload their proof of vaccination. All currently unvaccinated employees must have had at their first shot and uploaded their documentation. As of this date, any employee who has not reported and documented at least their first shot will be considered unvaccinated for planning purposes.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-5", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 12–17", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Please note: Operating crews who have not reported and documented at least a first vaccination by September 8th and a second vaccination by October 8th you will not be eligible to bid effective with the November block month.\n\nFurther information regarding the suspension of bidding was also provided in a separate communication from the Vice President, In-Flight Service that same day.\n\nOn August 26, 2021, Ms. Watson sent a text message to Local 4095 President, Ms. Kim Wentzell, regarding the mandatory vaccination policy. Ms. Wentzell responded that the union would challenge any discipline, including termination, that resulted from the application of the policy.\n\nOn August 27, 2021, the union issued a further update on the members’ portal acknowledging the different perspectives of members regarding vaccination but indicating its agreement that vaccines were critical to providing a safe work environment for employees and ensuring a recovery of the airline industry. The union also stated its intention of filing grievances for individuals that faced discipline as a result of the policy.\n\nOn August 30, 2021, Ms. Nadine Perrin, on behalf of a group of employees that included Ms. Watson, wrote to the union, expressing concerns with the impact of the vaccination policy and requesting information from the union on the assessments it had conducted with respect to vaccination and what steps it was taking to represent those who did not support the mandatory vaccination policy.\n\nMs. Wentzell responded to Ms. Perrin on the same date and invited her to consult the union’s information bulletins that outlined its approach. She also indicated that the union was in consultation with legal counsel to assess the policy and determine whether a grievance would be filed.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-6", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 18–19", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The union received a second legal opinion on August 31, 2021. This opinion confirmed the advice previously received in the first legal opinion. It concluded that the Air Canada policy would likely withstand a challenge through grievance arbitration and, further, that a challenge under the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982) (the Charter) to the government’s vaccine mandate was not likely to succeed.\n\nOn September 3, 2021, the union communicated an update to its membership on the vaccination policy. It indicated that it had received feedback from its members who were for and against the policy. It also stated that it had obtained a second legal opinion and consulted with other unions at Air Canada and advised that the employer’s policy would likely be deemed reasonable by an arbitrator. It indicated that it would be focusing on the policy’s implementation and administration and on supporting members through the grievance procedure should discipline be imposed as a result of the policy. It also noted that if members are not able to attend work because they choose not to be vaccinated, this would not necessarily mean that the Charter has been breached.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-7", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 20–23", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "On September 9, 2021, Air Canada sent an email to those employees who had not yet reported their vaccination status. In this message, it indicated that if an employee was not vaccinated or did not report their status by October 30, 2021, they would be subject to certain consequences. In particular, unvaccinated employees would be barred from entering the workplace, would be considered unavailable to fulfill their duties and would be placed on unpaid leave without benefits for a period of six months. It also specified that those who did not receive a second vaccination by October 8 would not be eligible to bid for the November block month.\n\nOn September 10, 2021, Air Canada issued and published its updated COVID-19 vaccination policy. This version of the policy specified that employees who were not fully vaccinated by October 30, 2021, and who were not exempted from the vaccination requirement would be placed on an unpaid leave of absence for up to six months, following which their employment status would be reviewed.\n\nOn September 14, 2021, counsel for Ms. Watson wrote to Mr. Wesley Lesosky, the President of CUPE ACC, asserting that the union was acting in a manner that was arbitrary, discriminatory and in bad faith with respect to the DFR owed to Ms. Watson and other members and asking that it initiate a grievance against the Air Canada policy.\n\nA representative of CUPE ACC responded to this communication on behalf of Mr. Lesosky on September 17, 2021, indicating that individual complaints would be dealt with on a case-by-case basis and that individual grievances would be filed where appropriate.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-8", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 24–27", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Counsel for Ms. Watson expressed dissatisfaction with this response in an email dated September 22, 2021, and asked that Ms. Watson’s demands be met by September 24, 2021. If no action was taken by the union, counsel indicated that a DFR complaint would be filed with the Board.\n\nOn October 6, 2021, the federal government announced its plans to proceed with mandating COVID-19 vaccination across the federal public service and the federally regulated transportation sectors. This announcement made it clear that employers in the federally regulated air, rail and marine transportation sectors would have until October 30, 2021, to establish vaccination policies to ensure their employees are vaccinated. It also announced that travellers departing from Canadian airports would be required to be fully vaccinated.\n\nOn October 22, 2021, the union issued an update to the membership titled “Vaccine Status Reporting.” In this message, the union discussed certain issues with the uploading of proof of vaccination documents and also indicated that it would review all cases in which a member was removed from service for non-compliance with the vaccination policy.\n\nOn October 29, 2021, the federal Minister of Transport issued an Interim Order pursuant to the Aeronautics Act (Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 43) (Order No. 43). This order directed all airlines to adopt and implement a mandatory vaccination policy for their employees by October 31, 2021, providing for limited exemptions due to a certified medical contraindication or religious grounds.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-9", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 28–30", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Counsel for Ms. Watson communicated with CUPE ACC on November 9, 2021, to advise that Air Canada had denied Ms. Watson’s request for a medical exemption from the vaccination policy. On November 11, 2021, a representative of Local 4095 filed an individual grievance for Ms. Watson. This grievance was denied by Air Canada at level 1 of the grievance procedure. The grievance was forwarded to the CUPE ACC grievance committee and is one of a number of individual grievances filed by the local unions in respect of the application of the COVID-19 vaccination policy.\n\nThe complainant made a specific request for a hearing, indicating that this matter would require significant document disclosure and an assessment of the credibility of union witnesses.\n\nThe Board is not obliged to hold an oral hearing in every case. The Board’s authority to rely on the written submissions of the parties and to make its determination without holding an oral hearing is well established. Section 16.1 of the Canada Labour Code (the Code) expressly allows the Board to proceed without an oral hearing. In addition, sections 10, 12 and 40 of the Canada Industrial Relations Board Regulations, 2012, are designed to give parties a full opportunity to make submissions, directing them to provide full particulars of the facts and the grounds for their position together with any supporting documents.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-10", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 31–34", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board will normally not hold an oral hearing unless there are issues of credibility on questions that are central to its determination or other sound industrial relations reasons that require it to hear the witnesses in person. There is also no requirement for the Board to give notice to the parties of its intention not to hold a hearing (see NAV CANADA, 2000 CIRB 88; and NAV Canada v. International Brotherhood of Electrical Workers, 2001 FCA 30).\n\nIn the matter under review, the Board invited the union and the employer to submit written responses, and the complainant had an opportunity to provide a final reply. Having reviewed all the written documentation, the Board has determined that it is not necessary to conduct an oral hearing and that the matter can be decided on the basis of the written submissions.\n\nIn order to decide this matter, the Board must determine whether the union acted in a manner that was arbitrary, discriminatory or in bad faith in making its decision not to pursue a grievance challenging the employer’s mandatory vaccination policy.\n\nThe union’s DFR is set out in section 37 of the Code, which reads as follows: 37 A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-11", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "para 35", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board has described the factors it considers when deciding whether a union has engaged in arbitrary, discriminatory or bad faith conduct in its case law. The Board’s decision in McRaeJackson, 2004 CIRB 290, provides a concise summary of these relevant factors: [27] A union must not act in bad faith; that is, with improper purpose. Three examples of this conduct include: the personal feelings of union officers influencing whether or not a grievance should be pursued; conspiring with the employer to have an employee disciplined or terminated; or, putting the ambitions of a group of employees who support a union official ahead of the interests of an individual employee. [28] A union must not discriminate on the basis of age, race, religion, sex or medical condition. Each member must receive individual treatment and only relevant and lawful matters must influence whether or not a grievance is referred to arbitration. It should be noted that not every instance of differential treatment is considered discrimination. For example, to refer one employee’s grievance to arbitration and not another where there are relevant considerations to support the distinction is not discriminatory. Nor is an agreement with the employer to give different or better working conditions to a group of employees because of workplace considerations (see Mario Soulière et al., [2002] CIRB no. 205; and 94 CLRBR (2d) 307). [29] A union must not act arbitrarily. Arbitrariness refers to actions of the union that have no objective or reasonable explanation, that put blind trust in the employer’s arguments or that fail to determine whether the issues raised by its members have a factual or legal basis (see John Presseault, supra, ...", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-12", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 35–37", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "[30] It is arbitrary to only superficially consider the facts or merits of a case. It is arbitrary to decide without concern for the employee’s legitimate interests. It is arbitrary not to investigate and discover the circumstances surrounding the grievance. Failure to make a reasonable assessment of the case may amount to arbitrary conduct by the union (see Nicholas Mikedis (1995), 98 di 72 (CLRB no. 1126), appeal to F.C.A. dismissed in Seafarers’ International Union of Canada v. Nicholas Mikedis et al., judgment rendered from the bench, no. A-461-95, January 11, 1996 (F.C.A.)). A non-caring attitude towards the employee’s interests may be considered arbitrary conduct (see Vergel Bugay et al., supra) as may be gross negligence and reckless disregard for the employee’s interests (see William Campbell, [1999] CIRB no. 8).\n\nIn DFR cases, the complainant bears the burden of proof. In other words, the person making the complaint must convince the Board that their union has breached its DFR.\n\nThe complainant’s main allegation is that the union’s decision not to pursue a policy grievance regarding Air Canada’s vaccination policy was arbitrary. She contends that the union did not seriously or sufficiently consider the prejudicial impact of the policy on a number of bargaining unit members who will not comply with the policy due to medical or other personal reasons. As a unionized employee, the complainant submits that she has no individual right to seek remedies in court or otherwise. Accordingly, the union has the duty to represent her and her colleagues who are negatively impacted by the policy.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-13", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 38–40", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "She argues that the union provided no explanation or detail regarding its involvement in negotiating the policy or attempts to improve or refine it in light of its impact on the rights of members. She also indicates that the union has arbitrarily refused to consult with the members to understand their concerns and to advocate for them.\n\nThe complainant alleges that the union acted in bad faith when it refused to provide an explanation for why it was not advancing a grievance against the employer’s vaccination policy. She states that she received no information on the union’s investigation of the issues or its consideration of the merits of her specific concerns. She submits that the union did not conduct a serious analysis of or sufficiently inquire into the issues raised, did not gather sufficient information to make a sound decision and had a dismissive attitude towards those members who oppose the vaccination policy. She further alleges that certain union officers’ personal feelings influenced the union’s decision not to file a grievance.\n\nIn her view, the collective agreement does not contemplate a vaccination policy and does not allow management to impose policies that require medical procedures as a condition of employment. The employer’s vaccination policy is not a proper exercise of management’s rights, and the union should have negotiated this policy with the employer or, alternatively, should have pursued a policy grievance. In failing to do so, she submits that the union is in breach of its duty to represent its members.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-14", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 41–43", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In addition, the complainant contends that the union simply accepted and relied upon bald conclusions contained in deficient legal opinions without further analysis or debate. She also questions whether the legal opinions were based on an accurate description of the legal question and asks that the Board order the disclosure of materials and information provided to legal counsel when the legal opinions were requested. She argues that the issue was not whether the government could impose a vaccination mandate on flight attendants but rather whether the employer’s policy was reasonable. In the absence of the employer’s final version of the policy or the government’s order, she submits that the legal opinions were based on hypothetical or speculative scenarios.\n\nFinally, the complainant indicates that other unions have successfully challenged similar mandatory vaccination policies and cites Arbitrator Stout’s decision in Electrical Safety Authority and Power Workers’ Union (COVID-19 Vaccination Policy), Grievance: ESA-P-24, November 7, 2021 (Ont.) (Electrical Safety Authority), as an example of this. In light of this decision, the union should have challenged Air Canada’s policy on behalf of those members who would be negatively affected by it. She argues that failing to do so is a breach of the duty owed to those members, and this breach is not mitigated by the fact that the union has offered to file individual grievances for members disciplined under or adversely affected by the policy.\n\nThe Board notes that the complainant did not argue or make specific allegations regarding discriminatory conduct on the part of the union.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-15", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 44–45", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "It is well established that an employee who is represented by a union does not have a right to pursue a grievance to arbitration; that is the role of the union as the exclusive bargaining agent (see McRaeJackson). As outlined in Kasim, 2008 CIRB 432, the union’s DFR does not mean that an employee has an absolute right to have grievances filed and taken to arbitration. It is the union’s role to determine which grievances are filed or proceed through to arbitration and which are settled or withdrawn. It is not required to advance grievances that, in its best judgment, are not likely to succeed. The union has considerable discretion in making decisions that involve the representation it provides to its members.\n\nThere is no doubt that the COVID-19 pandemic has presented unprecedented challenges for employers, unions and the employees they represent. Over the span of some 20 months, the state of the pandemic has continuously evolved and the knowledge base around the effectiveness of different measures has increased. The airline industry, in particular, has had to rapidly and constantly respond to the challenges that COVID-19 has presented for the employees as well as for the broader operations.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-16", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 46–47", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The union, as the bargaining agent for flight attendants, has had to respond quickly to evolving circumstances and at various levels to ensure an appropriate and coherent approach in the representation of its members. This has required it to constantly adapt to a very fluid and dynamic situation. When COVID-19 vaccines became available in early 2021, the union leadership made efforts to secure early access to them for flight attendants and, based on public health guidance, encouraged all its members to get vaccinated so all could be ready to return to service. At that time, there was no requirement to be vaccinated. The union recognized that a large number of its members were asking for priority access to the vaccines while other members had concerns about their efficacy or safety.\n\nAlthough the complainant argues that the union’s conduct or decision not to pursue a policy grievance was arbitrary, the Board does not agree. The union was well aware of the objection of certain employees to the vaccination policy. As the chronology of events set out above demonstrates, the union provided regular information and kept the membership up to date on developments, government announcements and the employer’s approach and response as the events unfolded.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-17", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 48–49", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Air Canada issued its initial vaccination policy in April 2021, in which it strongly encouraged employees to get vaccinated. This version of the policy also provided that, in certain instances, employees would be required to be vaccinated and, in the event that they did not respect the guidelines, could be subject to discipline, up to and including termination of employment. Following the communication of this policy, the union posted a message on the members’ portal indicating that it had raised potential areas of concern with Air Canada regarding the policy and its alignment with the collective agreement and the Canadian Human Rights Act (CHRA).\n\nOn August 13, 2021, the Government of Canada officially announced that it would require that all employees working in the federally regulated air, rail and marine transportation sectors be vaccinated by no later than the end of October 2021. The union sought a legal opinion immediately upon learning of the government’s intention to direct airlines to implement a mandatory vaccination policy. It shared that legal opinion with the membership on August 19, 2021. This opinion concluded that the likelihood of success in challenging the employer’s policy was very low.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-18", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 50–53", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Further information was communicated by the union shortly after Air Canada announced its mandatory vaccination policy on August 25, 2021. In this message, the union acknowledged that mandatory vaccination was not welcomed by all members but indicated its support for vaccines as a critical tool to help ensure a safe work environment for everyone and the economic recovery of the airline industry. It highlighted the concern with the timelines established in the policy but clearly stated that unvaccinated employees would only be subject to flight removal starting in November 2021. The union also made clear in this statement that it would challenge individual discipline issued to members who chose not to be vaccinated and that it would seek alternative accommodations.\n\nThe union sought a second legal opinion from a different counsel on Air Canada’s updated mandatory vaccination policy. This legal opinion confirmed the advice received in the first opinion and that a challenge to the policy itself was unlikely to be successful.\n\nThe complainant argues that the union should have debated the legal opinions, including their bases and analyses. She submits that the opinions do not answer the correct question and address the government’s order rather than the employer’s policy.\n\nWith respect, the complainant has not persuaded the Board that the decision not to pursue a policy grievance challenging the employer’s vaccination policy was arbitrary. In the Board’s view, the union turned its mind to the issues at play and was fully engaged with its membership.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-19", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "para 54", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The fact that the federal government issued an order directing the airlines to adopt a vaccination policy is a key distinction from other cases where employers were not bound by such a directive. Even if Order No. 43 was not issued until late October 2021, after Air Canada introduced the policy, the federal government had made its intention clear in its announcement of August 13, 2021, that it would impose a vaccination requirement on the airline industry. It is important to note that the employer is obligated by the terms of Order No. 43 to have a vaccination policy in place and that the terms of that order are very specific. Even though Air Canada did not have the precise terms of the order in August or September 2021, the government had made statements that strongly indicated that a mandatory vaccination requirement would be the likely outcome.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-20", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 55–56", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The complainant argues that the union should have challenged the employer’s policy based on the successful outcomes of other such challenges made by other unions. As an example, the complainant cites Electrical Safety Authority. However, the Board notes that, in that case, the employer was not under a government order to establish a vaccination policy. The arbitrator discussed the nuanced approach that must be taken when assessing a workplace policy that infringes upon individual employee rights and the balancing of interests that is necessary to determine its reasonableness. He also noted the fact that the employer was not under a government order to implement a vaccination policy: [20] There can be no doubt that the risks associated with contracting COVID-19 are serious to both the individual and society. Individual response to infection varies, but the higher the number of infections, the higher the number of admissions to hospitals and intensive care units (ICUs). The strain on our healthcare system has been immense and our long-term care system has suffered greatly, exposing flaws in these systems that need to be addressed. However, it is for the democratically elected governments to address general public health issues, not employers. At this point there is no government mandate that all ESA employees must be vaccinated. (emphasis added)\n\nUltimately, Arbitrator Stout concluded that, in consideration of the circumstances and context of that specific workplace, the policy was unreasonable.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-21", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 57–59", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "It is important to note that Arbitrator Stout also referenced the decision of Arbitrator Von Veh in which a mandatory vaccination policy was found to be reasonable given the context in which the employees worked (see United Food and Commercial Workers Union, Canada Local 333 v. Paragon Protection Ltd. (Policy Grievance), [2021] O.L.A.A. No. 435 (QL)).\n\nIt is within this context that the union sought a legal opinion on its chance of success with respect to a policy grievance challenging Air Canada’s mandatory vaccination policy. Not only is the workplace context of an airline particularly different and distinct from that of most other industries, but the federal government clearly indicated that its intention was to direct all employers in the air, rail and marine transportation industries to implement mandatory vaccination policies. This was formalized in Order No. 43 issued by the Minister of Transport on October 29, 2021.\n\nThe complainant is of the view that the union did not provide the relevant considerations to its legal counsel or that it did not ask the correct question on which to base the legal opinions. With respect, the Board is not prepared to entertain this argument. It is not for the Board to evaluate what question was put to counsel or which considerations were communicated as the basis for their legal advice. The Board has generally been deferential to a union’s reliance on its counsel’s legal opinion (see Presseault, 2001 CIRB 138), and it will not engage in a microscopic review of those opinions unless there are very unusual circumstances. Correspondingly, the Board will not order the production of any documents on which the legal opinions were based, as the complainant requested.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-22", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 60–62", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In this particular case, and given the complex issues at play, the union sought two legal opinions and put the question of whether to pursue a policy grievance to the executive committee on September 3, 2021. The complainant is of the view that the union did not substantively deliberate on the issues and the relevant factors. However, by this time, the issue had been at the forefront of the union’s concerns for some time. The union was well aware of the views of certain members who, for various personal reasons or beliefs, were opposed to vaccination. In the end, it determined that its efforts and resources would be better spent on individual cases in order to seek proper accommodation.\n\nAs indicated, there is no absolute right or obligation to pursue a particular grievance to arbitration, even if an employee insists on it. It is well established that the decision to pursue a grievance is the union’s to make. It must make that decision after proper consideration of the circumstances. In this case, the Board is of the view that the union turned its mind to the issue and took the necessary steps to evaluate its chance of successfully challenging the policy through the grievance procedure or otherwise. The Board cannot conclude that the union’s decision was arbitrary.\n\nThe Board has repeatedly stated that it is not necessarily a breach of the DFR when a union makes a decision that favours one group of employees over another (see McRaeJackson; and Crispo, 2010 CIRB 527). Unions routinely make difficult decisions that require balancing the interests of various groups amongst its membership. This is true in collective bargaining and in the decisions to present grievances.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-23", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "para 63", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The complainant asserts that the union ignored the concerns and interests of approximately 10 percent of the members in the bargaining unit, who will bear the consequences of the policy. She maintains that the union acted in bad faith as it adopted a dismissive attitude and did not inquire sufficiently or communicate with those members who raised questions or concerns with respect to the mandatory vaccination policy.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-24", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "para 64", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In the context of this policy, there is no doubt that those members who choose not to be vaccinated or not to disclose their vaccination status will be impacted differently than those who comply with the policy. However, the duty that is imposed on the union does not mean that it has the obligation to pursue every grievance or to intervene in every situation where an individual employee’s interests are affected; it means that the union must consider the interests of all members of the bargaining unit and act fairly. The Supreme Court of Canada made the following comments in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298: The principles set out in Gagnon clearly contemplate a balancing process. As is illustrated by the situation here, a union must in certain circumstances choose between conflicting interests in order to resolve a dispute. Here the union’s choice was clear due to the obvious error made in the selection process. The union had no choice but to adopt that position that would ensure the proper interpretation of the collective agreement. In a situation of conflicting employee interests, the union may pursue one set of interests to the detriment of another as long as its decision to do so is not actuated by any of the improper motives described above, and as long as it turns its mind to all the relevant considerations. The choice of one claim over another is not in and of itself objectionable. Rather, it is the underlying motivation and method used to make this choice that may be objectionable. (pages 1328–1329)", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-25", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 65–67", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In this case, the union supported vaccination generally as an effective means of ensuring the health and safety of its members. Even if this position by the union is in opposition to certain members’ views, this, in and of itself, is not sufficient to find the union in breach of its DFR. In the current pandemic, there is overwhelming scientific evidence of the effectiveness of vaccines in the effort to eradicate COVID-19. Health authorities across Canada have stated that vaccination is one of the most effective ways to prevent severe illness, hospitalization and death from COVID‑19.\n\nAs Arbitrator Stout stated in Electrical Safety Authority: [6] I note that this case is not about the merits of being vaccinated or the effectiveness of COVID‑19 vaccines. The science is clear that the COVID-19 vaccines currently being used are safe and effective at reducing the likelihood of becoming seriously ill or dying from this horrible disease. Moreover, vaccinating the population is necessary in order to secure the fragile healthcare system and eventually put this pandemic behind us.\n\nThe complainant and other members may be opposed to vaccination, but the scientific evidence overwhelmingly points to vaccination as the most effective tool to get us past these unprecedented global circumstances. The union took a stance that is aligned with this evidence. A large majority of the membership supports the vaccination policy, as is demonstrated by the high vaccination rate amongst the employees in the bargaining unit. There is simply no evidence to suggest that the union acted in bad faith in adopting a position that supports and favours vaccination for its members.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-26", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "para 68", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The complainant suggests that the union failed to consult with those members that opposed the policy and that it did not provide a rationale for not advancing their concerns through the grievance procedure. However, the union is not obliged to consult each and every member when assessing whether to challenge an employer policy that impacts the membership in different ways. In a case involving a mandatory Hepatitis A vaccination policy, the British Columbia Labour Relations Board dismissed an employee’s allegation that the union had acted arbitrarily or in bad faith because it had not consulted with the membership prior to engaging in discussions with the employer. The Board agrees with the following reasoning in Gordon v. Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40, BCLRB No. B138/2004; 2004 CanLII 65459 (Gordon): Gordon also suggests that the Union discussions with the Employer about the mandatory inoculation program were improper because employees were not consulted. As the exclusive bargaining agent, part of the Union’s job in representing employees is to engage in discussions with the Employer regarding workplace issues: see, for instance, Section 53 of the Code. While consultation with employees over changes in working conditions such as occurred at the Capri is encouraged, it is not necessarily a requirement under the Code. As long as the Union does not act in a way that is arbitrary, discriminatory or in bad faith the duty of fair representation is not breached. In this case, the Union satisfied itself that the Employer’s actions were reasonable and legally permissible, and it ensured that employees were permitted the exceptions available to them by law.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-27", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 68–70", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In the circumstances, I do not find that the Union’s agreement to the program or its failure to consult employees beforehand supports a breach of Section 12. (page 9)\n\nAlthough CUPE ACC did not engage in individual discussions with the complainant, it did communicate regularly with the membership to provide status updates in what was and continues to be a rapidly changing environment. Through these communications, the union made it clear that it was aware of the different views on the issue of vaccination. It was also aware of the complainant’s specific concerns communicated to it through Ms. Perrin’s letter of August 30, 2021. As this matter concerned a policy grievance, it concerned the membership as a whole. The union had to make a decision in the interest of all the employees in the bargaining unit. As in Gordon, the union satisfied itself that the policy was within the parameters allowed by the legislative framework and provided for exceptions based on human rights grounds. Further, the union made clear that it would pursue individual grievances to seek accommodations where those were possible. An individual grievance is in fact proceeding with respect to Ms. Watson’s particular circumstances. The Board notes that it would be premature at this stage to pronounce on the union’s approach in that process.\n\nThe Board is satisfied that the union did not act in an arbitrary or discriminatory manner or in bad faith in its approach and communication with the membership as it relates to its decision not to pursue a policy grievance regarding the employer’s vaccination policy.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-28", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 71–73", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The complainant also argues that the collective agreement does not contemplate a vaccination policy and that the employer has no management right to implement such an invasive medical procedure as a condition of employment. In her view, the union should have grieved the policy or demanded that the employer negotiate the terms of the policy. Failure to do so, in her view, is a breach of the union’s duty to represent her fairly.\n\nThe union’s interpretation of the collective agreement differs from that of the complainant. The union is of the view that the absence of specific language in the collective agreement does not mean that the employer’s vaccination policy is invalid. Although the union recognizes that it can challenge a new policy through a grievance, it is of the view that the management rights clause in the collective agreement does not prevent the employer from introducing new policies, as long as these are not inconsistent with terms of the collective agreement or other applicable legislation, such as the CHRA.\n\nThe Board accepts that the union has the ultimate responsibility to decide on the interpretation of the collective agreement (see Crispo) and, as such, in this case, that it retains the discretion to determine whether it should challenge the vaccination policy as a proper exercise of management rights. The fact that the complainant disagrees with the union’s interpretation of the collective agreement is not sufficient to establish a breach of the union’s duty.", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-519772-29", + "doc_type": "caselaw", + "act_code": "2022 CIRB 1002", + "act_short": "Watson", + "act_name": "Watson", + "section": "", + "citation": "Watson, 2022 CIRB 1002", + "marginal_note": "paras 74–75", + "heading": "Duty of fair representation and a mandatory vaccination policy under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "After careful consideration of the complainant’s allegations and the written submissions of the parties, the Board is not persuaded that the union’s approach and its decision not to pursue a policy grievance challenging the employer’s COVID-19 vaccination policy was arbitrary, discriminatory or made in bad faith. The DFR complaint is dismissed.\n\nThis is a unanimous decision of the Board. ____________________ Ginette Brazeau Chairperson ____________________ Elizabeth Cameron Member ____________________ Daniel Thimineur Member", + "current_to": "2022-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/519772/index.do" + }, + { + "id": "cirb-5478-1", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 1–4", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Canada Industrial Relations Board (the Board) receives large numbers of complaints from employees alleging that their trade union has breached its duty of fair representation. Annually, these complaints represent close to fifty percent of unfair labour practice complaints received by the Board and monopolize a great deal of its resources without significantly advancing the objectives of Part I of the Code, which it is called upon to interpret and apply. Indeed, most of these complaints are dismissed on the basis that the facts do not establish sufficient grounds for a successful complaint.\n\nThe demands placed on the resources of trade unions, the Board and the labour relations system as a whole prompted the Board to review how to address these complaints while satisfying the principles of natural justice that govern all administrative tribunals and at the same time giving complainants the opportunity to have a complaint reviewed.\n\nA general observation that stems from a review of the numerous complaints is that most complainants do not fully understand the basis of the duty of fair representation imposed by the Code.\n\nTherefore, in order to provide guidance to all complainants, the Board decided to address misunderstandings concerning the extent of the duty of fair representation by trade unions in a decision that would serve as a reference to litigants and a basis for Board decisions in upholding or dismissing such complaints.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-2", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 5–7", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The principles that follow reflect the most important areas of the Board’s authority to decide section 37 complaints. Decisions cited in support of these principles are, for the most part, related to cases decided by the Board since the 1999 amendments to the Code and the appointment of the new Canada Industrial Relations Board and to important cases decided by the Supreme Court of Canada and the Federal Court of Appeal. Theses cases represent a comprehensive cross-section of established case law. For case law issued by the former Canada Labour Relations Board or other reported cases, reference may be made to two important compendiums of Board case law (Ronald M. Snyder, The 2003-2004 Annotated Canada Labour Code (Toronto: Thomson-Carswell, 2003) and Graham J. Clarke, Clarke’s Canada Industrial Relations Board, Vol. 2 (Aurora: Canada Law Book, 2004) as well as the Board’s published decisions.\n\nThe duty of fair representation exists as a counterpart to the union’s exclusive authority to deal with grievances under the collective agreement.\n\nWhen the Board certifies a trade union, the union becomes the exclusive representative of a unit of employees in its relationship with the employer. Section 36(1)(a) states as follows: 36.(1) Where a trade union is certified as the bargaining agent for a bargaining unit, (a) the trade union so certified has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit; ...", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-3", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 8–9", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "This relationship involves the negotiation and signing of a collective agreement. All collective agreements negotiated under the Code must contain a provision for final settlement of disputes, also known as the grievance procedure (section 57 of the Code). Unions enforce the collective agreement by filing grievances that allege that the employer has violated the terms of the collective agreement. Unions have a great deal of discretion when they deal with grievances. They may settle or drop grievances or decide not to refer them to arbitration, even if the affected employee disagrees (see Fred Blacklock et al., [2001] CIRB no. 139).\n\nThe union’s authority to deal with grievances is counterbalanced by the duty provided under the Code to treat all members of a bargaining unit fairly. This is what is known as the duty of fair representation. This duty is described in the Code as follows: 37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-4", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "para 10", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The duty of fair representation is a fundamental part of Canadian labour relations legislations in every jurisdiction, except New Brunswick, and has been the subject of longstanding and consistent interpretation not only by labour boards but by the courts. The principles that govern the union’s duty have been enshrined in this quotation from the Supreme Court of Canada in Canadian Merchant Service Guild v. Guy Gagnon et al., [1984] 1.S.C.R. 509: 1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit. 2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion. 3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other. 4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful. 5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee. (page 527)", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-5", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 11–13", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "These criteria are applied in deciding whether a union properly exercised its discretion as to whether to refer an employee’s or former employee’s grievance to arbitration. In accordance with these criteria, the Board examines the union’s conduct as to how the union managed the employee’s grievance (see Vergel Bugay et al., [1999] CIRB no. 45; 57 CLRBR (2d) 182; and 2000 CLLC 220-034). This is not an appeal of the union’s decision not to refer a grievance to arbitration but an assessment of the union’s conduct as to how it handled a grievance (see John Presseault, [2001] CIRB no. 138; and Robert Adams, [2000] CIRB no. 95; and 73 CLRBR (2d) 132 upheld by Canadian Council of Railway Operating Unions v. Robert Adams et al., judgment rendered from the bench, no. A-719-00, February 13, 2002 (F.C.A.)). The Board rules on the union’s decision-making process and not the merits of grievances (see Gaétan Coulombe, [1999] CIRB no. 25).\n\nAlthough the Board does not rule on the merits of an employee’s grievance, it may review the facts of a grievance in order to understand whether the union’s investigation reflected the worthiness and seriousness of an employee’s case (see Raynald Pinel, [1999] CIRB no. 19; and Robert Adams, supra).\n\nIn a complaint under section 37, the employee bears the onus (or burden of proof) of presenting evidence that is sufficient to raise a presumption that the union has failed to meet its duty of fair representation. The burden of proof is also described as the requirement to establish a prima facie case, or said differently, the requirement to bring forward sufficient relevant facts to establish a violation of the Code. The union is entitled to rebut the complainant’s allegations (see Terry Griffiths, [2002] CIRB no. 208; and 89 CLRBR (2d) 135).", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-6", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 14–15", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "If the Board finds that the union has breached the duty of fair representation, it can order a number of remedies that are outlined in section 99 of the Code. These remedies can include, for example, extending the timeliness of the grievance process and/or issuing a declaration that the union breached its duty and/or awarding damages. The leading case on the issue of remedies is Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, which was also discussed and applied in Via Rail Canada Inc. v. Cairns (2004), 241 D.L.R. (4th) 700 (F.C.A., no. A-273-03); Via Rail Canada Inc. v. Cairns, [2003] F.C.J. No. 1256 (QL); Via Rail Canada Inc. v. Cairns, [2003] F.C.J. No. 1167 (QL); International Brotherhood of Locomotive Engineers v. Cairns, [2002] F.C.J. No. 585 (QL); International Brotherhood of Locomotive Engineers v. Cairns et al. (2000), 252 N.R. 160 (F.C.A.); and VIA Rail Canada Inc. v. Cairns et al. (2000), 261 N.R. 24 (F.C.A.).\n\nThe union’s duty of fair representation is predicated on the requirement that employees take the necessary steps to protect their own interests. Employees must make the union aware of potential grievances and ask the union to act on their behalf within the time limits provided in the collective agreement. They must cooperate with their union throughout the grievance procedure, for example by providing the union with the information necessary to investigate a grievance, by attending any medical examinations or other assessments.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-7", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 16–19", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Employees must follow the union’s advice as to how to conduct themselves while the grievance process is underway. Employees must attempt to minimize their losses, for example by seeking new employment if they have been dismissed, or attending retraining if this will increase their chances of re-employment.\n\nIf an employee is neglectful in any of these regards, a claim before the Board will likely be unsuccessful (see Jacques Lecavalier (1983), 54 di 100 (CLRB no. 443)).\n\nThe Board will not usually uphold a complaint where the union obtained a reasonable settlement, which the complainant subsequently rejected (see Yvonne Misiura, [2000] CIRB no. 63; and 59 CLRBR (2d) 305). However, the settlement must take into consideration the employees’ legitimate rights under the collective agreement (see Clive Winston Henderson, [1999] CIRB no. 29; and 2000 CLLC 220-006).\n\nIn most collective agreements, employees do not have the absolute right to have their grievance referred to arbitration (see Garry Little, [2001] CIRB no. 114), even if this involves serious discipline or termination (see Yvonne Misiura, supra) or even forced resignation (see Tadele Lemi, [1999] CIRB no. 24). Again, the Board’s role is to look at the process as to how the union reached its decision (see Ghislaine Gagné, [1999] CIRB no. 18).", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-8", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "para 20", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Code gives a certified union exclusive authority over the negotiation and administration of the collective agreement because this is part of being an effective spokesperson in representing employees of the bargaining unit as a whole. The power of the union in its relationship with the employer is derived from the fact that it represents employees as a single entity and, as a consequence, is in a position to make commitments that can be relied upon by the employer. To receive benefits in return for such commitments requires that the union consider the overall employee group in addition to the needs of individual employees.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-9", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "para 21", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "It is also essential that a union be able to direct its resources to achieve a maximum effect. In Judd and C.E.P., Local 2000 (2003), 91 CLRBR (2d) 33, the British Columbia Labour Relations Board expressed the following view, which this Board shares: 36. A union must also be able to direct its resources so that they achieve maximum effect. Union resources are limited. If, for example, an employee could insist that his or her dismissal grievance go to arbitration even where on a reasonable assessment there is no such case, this could waste tens of thousands of dollars of the union’s resources, which come from employees’ dues. 37. Through the control of its resources, a union can leverage them to achieve maximum results for minimum expenditure. An employer knows that the union could take any given case to arbitration if it wished. It also knows that the union is likely to accept a reasonable settlement if one is offered. With that type of relationship, the employer may be motivated to make reasonable offers to settle some matters by agreement, without litigating every issue. In that way, employees achieve the greatest gain with the least expenditure. By contrast, if individual employees could take every grievance to arbitration whenever they wished, the amount of litigation in the workplace would multiply and employees would very quickly find their collective resources depleted. This type of situation would be detrimental to the workplace and, for employees and the union, unaffordable. It may also place an excessive demand on the employer, affecting the business as a whole. 38. As well, a union must be in charge of making decisions given the reality that what is good for one employee in the bargaining unit may be bad for others.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-10", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "para 21", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "An obvious example is where there is a job vacancy and the collective agreement language is unclear. On one interpretation, one member of the bargaining unit should get the job; on another interpretation, a different member of the bargaining unit should get it. The union cannot represent both members by arguing both interpretations. It must be free to argue the interpretation it feels is in the best interests of the bargaining unit as a whole. 39. For these reasons, among others, unions must act as a single entity in order to represent the employees effectively. They must be able to make decisions even where individual employees in the bargaining unit may disagree. In fact, unions are able to exercise collective power because employees cannot simply do whatever they wish individually. It is that characteristic which gives unions their bargaining power on behalf of the employees. 40. Employees choose whether or not to unionize, and typically choose the leadership of their union local. Thus, unions are an exercise in workplace democracy. Like all democracies, they are not expected to be perfect, nor to be free from disagreement. In fact, when one considers the type of decisions unions must routinely make - e.g., whether to expend union resources on a particular employee’s grievance, or which position to take when some employees’ interests differ from others - it is inevitable that some employees will disagree. Employees as a group may nonetheless decide to continue with their union and its current leadership. If they do, it is not because the employees believe the union has been perfect or right in all cases. It is because they believe it is, overall, the best option available. (pages 43-45)", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-11", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 22–23", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In making a decision of whether or not to proceed with a grievance or refer a grievance to arbitration, the union is in fact doing its job of representing employees. It is called upon to assess the workplace conditions that gave rise to an alleged breach of the collective agreement, the interpretation to be given to the collective agreement based on its experience with the employer, as well as the effect of a successful outcome of the grievance on other employees in the bargaining unit. To the extent that this assessment is based on relevant workplace considerations, the union is free to decide the best course of action in a particular set of circumstances.\n\nThe duty of fair representation commences as soon as there is a possibility discipline may be imposed and extends to the conduct of the grievance process to its final conclusion (see Anne Marie St. Jean, [1999] CIRB no. 33; and Brian L. Eamor (1996), 101 di 76; 39 CLRBR (2d) 14; and 96 CLLC 220-039 (CLRB no. 1162), upheld by C.A.L.P.A. v. Eamor (1997), 39 CLRBR (2d) 52). The duty is identical whether a bargaining agent is voluntarily recognized or certified. However, it does not normally extend to a situation where there is no collective agreement (see Gerald M. Massicotte (1980), 40 di 11; [1980] 1 Can LRBR 427; and 80 CLLC 16,014 (CLRB no. 234), upheld by Teamsters Union Local 938 v. Massicotte, [1982] 1 F.C. 216, appeal dismissed by Pollock v. R., [1982] 1 F.C. 710).", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-12", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 24–27", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Generally speaking, the duty of fair representation is owed only to members of the bargaining unit, although it may extend in certain circumstanes to former bargaining unit members (see Serge Bouchard et al., [2003] CIRB no. 259; and Tremblay v. Syndicat des employées et employés professionnels-les et de bureau, section locale 57, [2002] 2 S.C.R. 627). If an employee is not included in the bargaining unit, the union cannot be faulted for not taking the necessary steps to include the employee in the bargaining unit (see Esper Powell, [2000] CIRB no. 97).\n\nThe resolution of a grievance between the union and the employer, whether in the form of a settlement or incorporated in a consent award is subject to the Board’s ability to review the union’s conduct during the course of reaching that resolution (see Anne Marie St. Jean, supra).\n\nThere is no exhaustive list of items that a union must consider in deciding whether or not to take a grievance to arbitration. However, a few general principles apply.\n\nA union must not act in bad faith; that is, with improper purpose. Three examples of this conduct include: the personal feelings of union officers influencing whether or not a grievance should be pursued; conspiring with the employer to have an employee disciplined or terminated; or, putting the ambitions of a group of employees who support a union official ahead of the interests of an individual employee.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-13", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 28–29", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "A union must not discriminate on the basis of age, race, religion, sex or medical condition. Each member must receive individual treatment and only relevant and lawful matters must influence whether or not a grievance is referred to arbitration. It should be noted that not every instance of differential treatment is considered discrimination. For example, to refer one employee’s grievance to arbitration and not another where there are relevant considerations to support the distinction is not discriminatory. Nor is an agreement with the employer to give different or better working conditions to a group of employees because of workplace considerations (see Mario Soulière et al., [2002] CIRB no. 205; and 94 CLRBR (2d) 307).\n\nA union must not act arbitrarily. Arbitrariness refers to actions of the union that have no objective or reasonable explanation, that put blind trust in the employer’s arguments or that fail to determine whether the issues raised by its members have a factual or legal basis (see John Presseault, supra, but see Orna Monica Sheobaran, [1999] CIRB no. 10, that upheld a complaint where the union referred an employee to the employer rather than assist the employee; and Clive Winston Henderson, supra, where the union’s decision jeopardized an employee’s seniority).", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-14", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 30–31", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "It is arbitrary to only superficially consider the facts or merits of a case. It is arbitrary to decide without concern for the employee’s legitimate interests. It is arbitrary not to investigate and discover the circumstances surrounding the grievance. Failure to make a reasonable assessment of the case may amount to arbitrary conduct by the union (see Nicholas Mikedis (1995), 98 di 72 (CLRB no. 1126), appeal to F.C.A. dismissed in Seafarers’ International Union of Canada v. Nicholas Mikedis et al., judgment rendered from the bench, no. A-461-95, January 11, 1996 (F.C.A.)). A non-caring attitude towards the employee’s interests may be considered arbitrary conduct (see Vergel Bugay et al., supra) as may be gross negligence and reckless disregard for the employee’s interests (see William Campbell, [1999] CIRB no. 8).\n\nThe union’s duty in this regard is open to greater scrutiny when a matter involves an employee’s termination, serious discipline that affects gainful employment or a disability that requires accommodation. On the other hand, not every grievance warrants an investigation. In some circumstances, the union may already be in possession of the relevant information. Where the evidence before the union is that a grievance is unlikely to succeed, it may be unreasonable in certain circumstances to expect the union to investigate new evidence brought forth by the employee (see International Longshore and Warehouse Union, Ship and Dock Foremen, Local 514 v. Empire International Stevedores Ltd., [2000] F.C.J. No. 1929 (QL) reversing Board’s decisions William Bill Harris, April 3, 2000 (CIRB LD 209); and William (Bill) Harris, [1999] CIRB no. 43; and 57 CLRBR (2d) 216, application for leave to appeal to the S.C.C. dismissed).", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-15", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 32–33", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Union officials can make honest mistakes. Evidence that the union has acted negligently in the handling of a grievance or complaint does not necessarily amount to arbitrary conduct. A union may wrongly assess a grievance, yet not act arbitrarily. For example, a delay by the union in referring a dismissal grievance to arbitration may not be unusual where there is a backlog of grievances (see Ghislaine Gagné, supra). Not obtaining full redress sought by a complainant does not make a union’s conduct arbitrary, discriminatory or in bad faith (see Yvonne Misiura, supra).\n\nA union can fulfill its duty to fairly represent an employee by taking a reasonable view of the grievance, considering all of the facts surrounding the grievance, investigating it, weighing the conflicting interest of the union and the employee and then making a thoughtful judgment about whether or not to pursue the grievance. That is called balancing the circumstances of the case against the decision to be made. For example, it is legitimate for the union to consider collective agreement language, industry or workplace practices, or how similar issues have been decided. It is also legitimate for the union to consider the credibility of a grievor, the existence of potential witnesses in support of the grievor’s version of the events, whether the discipline is reasonable, as well as the decisions of arbitrators in similar circumstances.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-16", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 34–36", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "A union can consider legitimate factors other than the employee’s interests. For example, the union and the employer may have agreed to a particular interpretation of the collective agreement during the course of collective bargaining or the union may have been unsuccessful at arbitration in a similar case. The union may be concerned that a victory would have an adverse effect on other employees of the unit. The union may decide that the cost of resolving the grievance is too high given the issue at hand. The union must weigh these factors fairly against the wishes of the employee.\n\nConflicts may arise between the interest of an employee and the bargaining unit. For example, unions and employers may settle an ongoing grievance in exchange for bargaining concessions. In some circumstances, however, these actions may amount to unfair conduct if the grievance concerns serious discipline or dismissal (see Centre hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330; and also Herman Durette, November 20, 2003 (CIRB LD 957)).\n\nThe rights that an employee wishes enforced may at times conflict with the rights of other bargaining unit members. This may occur in cases involving seniority rights on promotion or lay-off. This also happens in cases involving a reinstatement that triggers the displacement of another employee. In deciding whether or not to refer a particular grievance to arbitration, the union must act fairly. As long as it has properly considered the interests of both sides, the union need not represent each affected employee.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-17", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 37–39", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Accordingly, the Board will normally find that the union has fulfilled its duty of fair representation responsibility if: a) it investigated the grievance, obtained full details of the case, including the employee’s side of the story; b) it put its mind to the merits of the claim; c) it made a reasoned judgment about the outcome of the grievance; and d) it advised the employee of the reasons for its decision not to pursue the grievance or refer it to arbitration.\n\nEstablished unions usually have their own experienced staff to conduct investigations, assess the grievance and decide whether or not to pursue a grievance. Although the union may decide to obtain the advice of legal counsel, there is no requirement for the union to obtain a legal opinion before deciding not to refer a grievance to arbitration. The Board will not uphold a complaint based on the mere fact that the union did not obtain legal advice before deciding not to refer a grievance to arbitration, or that the union did not follow counsel’s advice.\n\nThe general rule is that the union should advise employees of any upcoming hearing, or tell them why they should not or cannot attend (see Robert Adams, supra). Some unions proceed before the arbitrator on the basis of written submissions or according to an expedited procedure that excludes employee participation. Employees may have their own representative, but this is subject to the decision of the arbitrator. The union need not provide a representative for the employee, nor is it required to pay for any representative an employee chooses for himself.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-18", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 40–42", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The union has carriage of the grievance and does not need to consult with the employee at every stage of the grievance procedure, although it may be advisable to communicate with the employee if a grievance or arbitration hearing is delayed, in order to avoid a complaint under section 37 (see Ghislaine Gagné, supra). Lack of communication per se does not constitute a violation of the Code, except where it prejudices the complainant (see Crewdson (1992), 93 CLLC 16,014 (CLRB decision no. 977) (decision subsequently rescinded following parties’ agreement); William Campbell, supra; and Robert Adams, supra).\n\nThe collective agreement is not the only factor governing a union’s relationship with the employees it represents. Employees may have rights flowing from the union’s constitution, statutes or rules, from other statutes or employment-related statutes, such as Parts II and III of the Code that are subject to the duty of fair representation under the Code (see Richard Connolly et al. (1998), 107 di 120; and 45 CLRBR (2d) 161 (CLRB no. 1235), pages 143; and 185). The Board has also found that where no collective agreement exists, there cannot be a breach of section 37 (see Eugene Kalwa (1995), 96 di 157 (CLRB no. 1106) at page 160; and Adonica Huggins and Donna Green, November 11, 2000 (CIRB LD 357)).\n\nA case in point are the rules relating to hiring halls in the longshoring industry. Unless the rules are part of the collective agreement, the duty of fair representation does not apply to a breach of these rules. However, it should be noted that section 68 of the Code provides that a collective agreement may require as a condition of employment that an employee be a member of a specified trade union, and that members of a specified union have preference of employment.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-19", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 43–46", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Another example are complaints relating to union discipline and the fair application of union rules. Unfair labour practice complaints against a trade union for such violations are filed under sections 95(f) to (i) and not under section 37 of the Code.\n\nProvincial workers’ compensation acts give employees rights, but these rights are usually not part of the collective agreement. Most unions will assist employees with workers’ compensation claims. However, they are not obligated to do so and the union’s actions in this regard are not subject to review by the Board, unless the collective agreement provides otherwise (see Yves Dumontier, [2002] CIRB no. 165; and 92 CLRBR (2d) 94, application for reconsideration dismissed in Yves Dumontier, July 25, 2002 (CIRB LD 692)).\n\nA union is not required to pursue issues not covered by a collective agreement (treatment related to substance abuse, in Judah (Joe) Zegman (1996), 100 di 25 (CLRB no. 1151), or the judicial review of an arbitral award (see John Presseault, supra). Unions are not required to pay for a lawyer to represent employees facing criminal charges, employment-related lawsuits, professional discipline proceedings or fatality inquiries.\n\nInternal union disputes, such as the right to attend union meetings, are not covered by the duty of fair representation under section 37 (Yves Dumontier, supra).", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-20", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 47–48", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The employer is not a principal party to a section 37 proceeding. Its actions are not at issue and it has no case to defend. As a matter of practice, it is added as an affected party since its interests could be affected by the outcome of the complaint, that is, the remedy imposed by the Board if the complainant is successful. For this reason, the Board provides the employer with the opportunity of presenting its submissions on the question of remedy. The employer’s role with respect to the merits of the complaint is restricted to that of an observer.\n\nThe union has a mandate to negotiate on behalf of employees in the bargaining unit. It is entitled to decide on demands and on bargaining strategies to advance the interests of the bargaining unit. It may disregard the wishes of individuals or minority groups, trade off demands, including individual grievances, or agree to terms and conditions that adversely affect individuals or groups of employees. The union, however, must engage in a rational decision-making process and recognize and consider the competing interests of all the employees in the bargaining unit. (For examples, see Vergel Bugay et al, supra; and Mario Soulière et al., supra, where the Board dismissed the complaints; and George Cairns et al., [1999] CIRB no. 35; and 2000 CLLC 220-012, where the Board upheld the complaint.)", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-21", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 49–50", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board is an independent and adjudicative body whose role is to determine whether there have been violations of the Code. Although the Code gives the Board broad powers in relation to any matters before it, it is not an investigative body. Accordingly, it is not mandated to go on a fact-finding mission on behalf of the complainant, to entertain complaints of poor service by the union, to investigate the union’s leadership or to investigate complaints against the employer for alleged wrongs suffered in the workplace. Employees who allege that their union has violated the Code and wish to obtain a remedy for that violation must present cogent and persuasive grounds to sustain a complaint.\n\nA complaint is not merely a perceived injustice; it must set out the facts upon which the employee relies in proving his or her case to the Board. A complaint goes beyond merely alleging that the union has acted “in a manner that is arbitrary, discriminatory or in bad faith.” The written complaint must allege serious facts, including a chronology of the events, times, dates and any witnesses. Copies of any documents that are relevant, including letters from the union justifying its actions or decision, should be used to support the allegations.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-22", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 51–52", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "An important consideration is that all complaints must be filed no later than 90 days from the date on which the complainant knows or ought to have known of the incident leading to the complaint (section 97(2) of the Code). Furthermore, filing in the wrong venue will not suspend the delay (see Winfield Porter, [2002] CIRB no. 176; and 81 CLRBR (2d) 48). The reasons for having statutory delays within which to file complaints is to give some finality to disputes, since it is important in industrial relations to get on with the bargaining relationship by resolving matters rather than let them fester over a prolonged period of time (see Anil Kumar Luthra, August 10, 2000 (CIRB LD 273); Captain Brian Woodley et al., [2000] CIRB no. 85; and 69 CLRBR (2d) 161; and Marie Laperrière, March 13, 2003 (CIRB LD 821)).\n\nIf a complaint is filed outside the 90-day period, the complainant must provide compelling reasons as to why his or her application should be considered nonetheless. The Board assesses the reasonableness of the delay in filing a complaint on a case-by-case basis. (Note: Time frames for filing a complaint against a union with respect to discriminatory treatment and discipline of members under section 95(f) or (g) are subject to a different time bar pursuant to section 97(4) and (5) than the 90-day period referred to above under section 97(2) of the Code.)", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-23", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 53–55", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Most instances of a complaint being dismissed relate to the fact that the complainant was unable to establish the facts upon which the Board could make a decision. This is often because complainants do not fully understand the Board’s role and treat it as an appeal of last resort from the union’s decision not to pursue their grievance or refer it to arbitration. Conversely, successful complainants allege detailed facts and the reasons why an employee reasonably believes that a decision was made based on improper factors or motives. The requested remedy is also a good indication as to whether a complainant understands the complaint process under section 37 of the Code.\n\nUltimately, if the union has directed its mind to the employee’s complaint, gathered the information relevant to making a decision, attempted to resolve the situation and reasonably exercised its discretion not to pursue a grievance or refer it to arbitration according to the criteria stated earlier, and informed the employee of its reasons for doing so, an employee will have little cause for complaint.\n\nSince the Code was amended in 1999, the Board has the unfettered discretion to decide a section 37 complaint without a public hearing. The scheme of section 16.1 of the Code and section 10(g) of the Canada Industrial Relations Board Regulations, 2001 (the Regulations) foresees that the Board may decide a complaint on the basis of the material filed, unless it considers that it has insufficient information before it to determine the matter and that the parties should be given the opportunity to advance their respective positions by way of an oral hearing. One or the other of the parties may request an oral hearing; however, the Board is not compelled to grant this request.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-24", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "para 56", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "There is no requirement for the Board to give notice to the parties of its intention not to hold a hearing (see Nav Canada, April 5, 2000 (CIRB LD 213), affirmed in NAV Canada v. International Brotherhood of Electrical Workers, Local 2228 (2001), 267 N.R. 125 (F.C.A.); and Raymond et al. v. Syndicat des travailleurs et travailleuses des postes (2004), 318 N.R. 319 (F.C.A.)). The audi alteram partem rule, that is the requirement to hear both sides of a matter, does not require that an oral hearing be held in every case. The reviewing courts have clearly stated that the Board is only required to grant to the parties an opportunity to present their case, whether by written submissions, documents produced and its own inquiries (see Commission des Relations de Travail du Québec v. Canadian Ingersoll-Rand Company Limited et al., [1968] S.C.R. 695; Anne Marie St. Jean, supra; Boulos v. Canada (Labour Relations Board), [1994] F.C.J. No. 1854 (QL); and Nav Canada, supra, with respect to the discretion of this Board).", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-25", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "para 57", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The principles that apply to the Board’s review of section 37 complaints are not new. The following quotation from Stephen Jenkins et al., June 9, 2004 (CIRB LD 1102) aptly summarizes the Board’s role in deciding such complaints and how its scope is often misunderstood by complainants: The Board recognizes that the complainants will likely be bitterly disappointed with this decision. As a creature of statute, created by and charged with enforcing the Code, the Board’s power of review and remedy is limited. In this case, apart from attempting to provide the complainants with a clear and comprehensive consideration of their case, the Board is unable to intervene. The following passage from Michael Tremblay (1989), 76 di 201, (CLRB no. 728) is an appropriate and instructive statement to offer the complainants. Vice-Chair Eberlee described the limits of the Board’s power under section 37 of the Code and attempted to demystify what are often confusing and painful results to disappointed and disgruntled complainants: “In a majority of the cases under section 37, complainants are not represented or assisted by legal counsel. This was true in this case. They often do not fully appreciate what the Board can and cannot do for them, if anything, under the law. Where the issue is a dispute between an individual and the union representing him over the union’s decision to drop or not to pursue a grievance, the complainant frequently expects that the Board will be able to make a decision on the actual merits of the grievance - to decide whether the suspension, or whatever took place, is appropriate and, if not appropriate, to modify or nullify it.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-26", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "para 57", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board is therefore careful at the beginning of a hearing in such circumstances to remind the parties that its mandate is only to judge the union’s handling of the grievance - to determine whether such handling shows evidence of having been ‘arbitrary, discriminatory or in bad faith’ - and not to decide the merits of the grievance. Thus it will focus primarily on the evidence showing how the union behaved. This was done before Mr. Tremblay and the union made their presentations in this case. ... ... The Board attempts to discourage the presentation of evidence pro and con the merits of the grievance but this is invariably smuggled into the testimony outlining the background of the complaint. It must be understood, however, that despite listening to such testimony, and perhaps even reporting it in reasons for decision when it helps to clarify the background, the Board in this case (and in its predecessors so far as we can tell) is not basing its determination on its reaction to the merits or otherwise of the grievance. We are not an arbitration board. The results in cases involving allegations of violations of section 37 may well confuse observers who are not fully aware of the real purpose of section 37. In one case, for example, it may appear to be obvious to a reader of reasons for decision that the reported background facts show the grievance itself to have little or no merit, yet the Board has concluded that the union violated section 37 in dropping it. Or in another case, the reported background facts may be overwhelming in showing that the employer was wrong in doing to the employee what gave rise to the grievance, yet the Board has concluded that the union did not breach section 37 in dropping it. ...", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-27", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 57–60", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In the second [case], despite what it or others may think of the merits of a grievance, the Board in adjudicating on section 37 complaints can only challenge and change a union’s decision if it concludes that the process giving rise to the decision or the decision itself was arbitrary, discriminatory or in bad faith. Put another way, the union may make a wrong decision and not be in breach of section 37. ...” (pages 38-39)\n\nIn light of these principles, two cases referred to the undersigned for decision will now be examined. Appearances Ms. Virginia McRaeJackson and Ms. Jacoline Shepard representing themselves; Ms. Sue Szczawinska, on behalf of National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada); Mr. Colin Copp, on behalf of Air Canada Jazz (Air Canada Regional Inc.).\n\nHaving reviewed the parties’ submissions and the investigating officer’s report, the Board is satisfied that in accordance with section 16.1 of the Code the present matter may be decided without holding a hearing.\n\nMs. Virginia McRaeJackson and Ms. Jacoline Shepard (the complainants) filed complaints on May 26, 2003, alleging that the National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 2002 (CAW-Canada or the union) breached the provisions of section 37 of the Code by refusing to process their grievances.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-28", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 61–64", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The complainants worked in security positions at the Prince Rupert Airport, which at the time they were hired, were governed by a collective agreement between Air Canada Regional airlines (ACR) and the CAW-Canada. A new collective agreement between CAW-Canada and JAZZ Air Inc. was signed and ratified in July 2002. The new collective agreement did not renew a Letter of Understanding that existed in the former collective agreement that provided for bumping rights between classifications and divisions.\n\nThe complainants were laid off in February 2003 and, as a consequence, claimed bumping rights into Customer Service Agents (CSA) positions. This claim was denied by the employer in light of the provisions of the new collective agreement that does not provide for bumping rights between divisions. The complainants approached the union to complain about the denial of their claim to bumping rights but were told that under the new collective agreement, there was no basis for a grievance.\n\nThe complainants’ complaint before the Board is based on rights contained in the Letter of Understanding that existed in the ACR-CAW-Canada collective agreement and alleges that the union has discriminated against them. This is not the first complaint filed by these complainants, however, the facts of those complaints are not relevant to this one.\n\nRelying on the earlier analysis of the law, there is no basis for a finding of discrimination. Discrimination relates to unlawful considerations in the union’s decision not to file a grievance, which is not the case here.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-29", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 65–68", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The union assumes, on behalf of all employees of the bargaining unit, the responsibility for collective bargaining and the content of the collective agreement. As stated earlier, it is not because the union takes a position that may be disfavourable to a group of employees that its conduct must be found to be discriminatory. Rights based on a previous collective agreement are unenforceable and a grievance based on these rights is doomed at the outset. It is easily foreseeable that an arbitrator’s ruling would be unfavorable to the complainants. Therefore, the union’s decision to refuse to file grievances was reasonable under the circumstances. The Board sees no reason to interfere with the union’s decision in this case.\n\nThe complaint, therefore, is dismissed as being without merit. Appearances Mr. Edwin F. Snow, representing himself; Mr. Gary Waxman, on behalf of the Seafarers’ International Union of Canada; Mr. Augustus G. Lilly, Q.C., on behalf of Seabase Limited.\n\nHaving reviewed the parties’ submissions and the investigating officer’s report, the Board is satisfied that in accordance with section 16.1 of the Code the present matter may be decided without holding a hearing.\n\nMr. Edwin Snow filed a complaint on December 24, 2003, alleging that the Seafarers’ International Union of Canada (SIU or the union) breached the provisions of section 37 of the Code. The complaint does not indicate what conduct by the union or its officials is in violation of the Code, but rather consists of an extensive filing of documents concerning Mr. Snow’s history of employment and settlement documents.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-30", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 69–70", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Mr. Snow is a general purpose crew member employed by Seabase Limited, a crewing agent for A.P. Moller-Maersk A/S, since 1998. On September 4, 2003, Mr. Snow was laid off in accordance with the seniority provisions of the collective agreement and subsequently recalled for another assignment on September 9, 2003. He notified the SIU on the day of recall that he felt that the terms of a Memorandum of Settlement, dated December 19, 2002, had been breached by the employer and therefore asked the union to “immediately provide [him] with qualified legal advice.”\n\nIn response to this letter, the SIU filed a grievance on his behalf in order to protect the time limits for filing a grievance while it investigated the matter. The employer denied the grievance. The union then wrote to Mr. Snow on September 19, 2003 asking him to provide evidence of the violation. On October 6, 2003, the union wrote to Mr. Snow telling him that since he had not responded, the union was closing its file. Mr. Snow did not respond until October 10, 2003, whereby he requested once more that the union provide him with qualified legal representation. The union wrote back that the employer was not in breach of the provisions of the collective agreement and that it was withdrawing the grievance. Mr. Snow thereafter filed this complaint on December 24, 2003.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-31", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 71–74", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "As a matter of background, Mr. Snow was terminated in September 2002 and subsequently reinstated as the result of the settlement of his grievance. In his various replies to his complaint, the Board understands that Mr. Snow alleges that the employer violated the seniority provisions of the Memorandum of Settlement when it laid him off and recalled him in September 2003. Mr. Snow asks as his only remedy that the union be ordered to provide him with qualified legal representation concerning “this matter.”\n\nThe union submits that Mr. Snow was reinstated to a full-time position in accordance with his seniority in January 2003 and the Memorandum of Settlement, the terms of which were reached in agreement with Mr. Snow. Thereafter, his employment continued to be governed by the terms of the collective agreement. Annually revised seniority lists were available at the union’s offices and posted on the employer’s vessels.\n\nThe union states that the documents filed in support of the complaint demonstrate that the SIU in fact properly considered all aspects of Mr. Snow’s case before arriving at its conclusions that the grievance had no merit. The union argues that there is no evidence of any arbitrary, discriminatory or bad faith conduct on its part and asks that the complaint be dismissed.\n\nThe employer filed submissions about the history of this complaint, which were helpful in deciphering the substance of the complaint, but that need not be considered for the Board’s ruling.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5478-32", + "doc_type": "caselaw", + "act_code": "2004 CIRB 290", + "act_short": "McRaeJackson", + "act_name": "McRaeJackson", + "section": "", + "citation": "McRaeJackson, 2004 CIRB 290", + "marginal_note": "paras 75–79", + "heading": "The leading test for the duty of fair representation under s. 37 of the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In this case, the complainant has not established a prima facie case of union conduct that violates the Code. Rather, this case centers on the complainant’s perceived violation by the employer of his terms of reinstatement. This is not a proper subject matter of a breach of the duty of fair representation under section 37 of the Code. Not only did the complainant misunderstand the grounds for a section 37 complaint, but he also requested a remedy that does not flow from the alleged complaint.\n\nThe complainant agreed to the conditions of reinstatement negotiated by the union in January 2003. Any complaint about the inadequacy of these conditions at this time is clearly untimely. Any other failings by the union are not described or alleged. There are, therefore, no relevant facts upon which to consider this complaint of a violation of section 37 of the Code.\n\nAccordingly, this complaint is dismissed as being without merit.\n\nIn conclusion, the facts of each case determine whether or not the union’s conduct has fallen below the standard found acceptable to the Board. The union’s representation of employees involves rights under the collective agreement, and, as a consequence, considerable latitude is given to the union in determining how those rights are to be applied.\n\nAs these cases illustrate, to the extent that the union has investigated a grievance or potential grievance, put its mind to its merits in light of all the circumstances and made a reasoned judgement about its possible outcome, there will be no cause for the Board to intervene.", + "current_to": "2004-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5478/index.do" + }, + { + "id": "cirb-5491-1", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 1–5", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "This is an application filed under sections 24 and 32 of the Code by the Canada Council of Teamsters (the CCT) on November 10, 2003, seeking to be certified as the bargaining agent for a group of employees of Securicor Canada Limited (Securicor or the employer) described as follows: all employees of Securicor Canada Ltd. doing business as Securicor Cash Services in Canada, excluding office and sales staff, supervisors and those above.\n\nFor a better understanding of the relationship between the parties, it is important to provide an overview of all the bargaining certificates issued with respect to the employees covered by this application and of all the applications for certification that are presently before the Board regarding this employer.\n\nThere are presently 21 bargaining certificates issued by the Board for this employer. The bargaining agents of these 21 units represent groups of employees across Canada. They are as follows (see appendix at page 24).\n\nThe Board notes, based on the table from the investigating officer’s report, that of the 21 bargaining certificates issued by the Board, 13 are held by different local unions of Teamsters and one is held by the Western Canada Council of Teamsters.\n\nOn the date of filing of the present application for certification by the CCT (November 10, 2003) according to the documents on file, only five units were in the open period as prescribed by section 24(2) of the Code, that is, those covering the employees in Prince George and Terrace (6448-U), Nanaimo and Comox (8035-U), Saint John, Fredericton, Moncton, Bathurst and Charlottetown (6974-U), Vancouver (8121-U), Montréal (8081-U). All the other units were covered by collective agreements that expire much later, on dates ranging from May 31, 2004 to September 30, 2005.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-2", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 6–10", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board has before it three other applications under section 24 of the Code, filed by two unions seeking to represent different groups of Securicor employees. A summary of theses applications is provided below.\n\nThe Syndicat des travailleuses et travailleurs de Securicor - CSN filed an application for certification on November 20, 2003 to represent: all employees of Securicor Canada Ltd., operating as Securicor Cash Services, working in the Montréal Metropolitan region, excluding office staff, supervisors and those above the rank of supervisor. (translation) At the time of the application, these employees were represented by the Cartage and Miscellaneous Employees’ Union, Local 931.\n\nOn May 13, 2004, the Board, having found that the applicant union had filed its certification application within the open period stipulated in section 24(2)(c) of the Code, ordered that a representation vote be held to determine whether the employees covered by the application wanted to be represented by the Syndicat des travailleuses et travailleurs de Securicor - CSN or by the Cartage and Miscellaneous Employees’ Union, Local 931 (see Securicor Canada Ltd., operating as Securicor Cash Services, May 13, 2004 (CIRB LD 1081)).\n\nThe Board decided to keep the ballot boxes sealed until it ruled on the application for certification filed by the CCT, that is, the application that is the subject of this decision.\n\nThe National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) filed an application for certification on February 6, 2004 to represent: [a]ll employees of Securicor Canada Limited working at and from Prince George, [Quesnel and Terrace,] B.C., excluding office and sales staff, supervisors and those above the rank of supervisors.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-3", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 11–15", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "As was the case with the application in file no. 24064-C, the Board ordered that a vote be held pursuant to section 29(1) of the Code in order to determine whether the employees wanted to be represented by Teamsters Local Union No. 213 or by CAW-Canada (see Securicor Canada Limited, May 13, 2004 (CIRB LD 1083)). These ballot boxes, as well, are to be kept sealed until the Board rules on the present application.\n\nCAW-Canada filed, on February 13, 2004, an application for certification to represent: [a]ll employees of Securicor Canada Limited working at and from 301 - 4300 Wellington Road, Nanaimo, British Columbia and, at and from 821 Shamrock Place, Comox, British Columbia, [and at and from Powell River, British Columbia] excluding office and sales staff, supervisors and those above the rank of supervisors.\n\nIn Securicor Canada Limited, May 13, 2004 (CIRB LD 1082), as was the case with the applications in file nos. 24064-C and 24207-C, the Board ordered that a secret ballot vote be held to determine whether these employees wanted to be represented by Teamsters Local Union No. 213 or CAW-Canada. These ballot boxes are also being kept sealed until the Board rules on the present application.\n\nIt is also important to note that, on October 21, 2003, the Cartage and Miscellaneous Employees’ Union, Local 931, filed an application for certification to represent the employees of Securicor working in the Abitibi region, Quebec, and the Board, by order no. 8624-U, dated April 8, 2004, certified the applicant union as bargaining agent for the employees covered by that application.\n\nSome of the certified bargaining agents affected by the CCT’s application made submissions to the Board, arguing that it should dismiss the said application.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-4", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 16–19", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "This union represents 97 employees in New Brunswick and Prince Edward Island and opposes the CCT’s application. It submits that the CCT is trying to organize through the “backdoor.”\n\nThe Steelworkers filed a request to intervene. They currently represent employees of Securicor in Newfoundland and Labrador and are a party to a collective agreement in effect until July 31, 2004. They submit that their bargaining unit is a successful and viable unit, that the CCT’s application for certification is a raid on the Steelworkers bargaining rights and that it is made outside of the open period as prescribed by section 24(2)(c) of the Code. They also submit that this application interferes with the right of employees to be represented by the bargaining agent of their choice.\n\nThe ACEA also filed a request to intervene. It is certified to represent employees of Securicor in London, Cambridge and Windsor, Ontario, and is a party to a collective agreement in effect until September 30, 2005. It submits that the bargaining rights of the Teamsters, in relation to this unit, have already been terminated, since the employees did not feel that they were being adequately represented. The ACEA also submits that the CCT’s application is untimely, as it fails to respect the conditions set out in section 24(2)(d) of the Code, and should be dismissed.\n\nCAW-Canada is the certified bargaining agent for Securicor’s employees in Kingston, Ottawa and Region, Victoria and Vancouver. It did not file specific submissions in this matter.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-5", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 20–23", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The relevant local unions of Teamsters are the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, Helpers and Miscellaneous Workers, Local 927, the Western Canada Council of Teamsters (Locals 362 and 979), the Drivers and Miscellaneous Workers, Local 69 (Teamsters Quebec), Teamsters Local Union Nos. 213, 419, 879 and 938, and the Cartage and Miscellaneous Employees’ Union, Local 931. These local unions have granted the CCT the authority and power to represent their interests, as well as those of their members, as a certified bargaining agent pursuant to section 32 of the Code.\n\nSecuricor submits that the Board ought to dismiss the present application. It submits that it has serious reservations regarding the status of the CCT. It contends that this application, to have the current bargaining unit structure reviewed, is not supported by the evidence.\n\nThe CCT alleges that its application is timely since it complies with section 24(2)(a) of the Code. It argues that no collective agreement is presently in force for the national unit that is the subject of this certification application, and that no trade union has been certified for the said unit.\n\nThe CCT submits that it did not file an application for the consolidation of existing bargaining units pursuant to section 18.1 of the Code, but rather it filed an application, pursuant to sections 24 and 32 of the Code, to be certified for a new, nation-wide, bargaining unit. The CCT also submits that it could not have applied for a review of the existing bargaining units under section 18.1 of the Code since it does not presently act as a bargaining agent for any of those units. Therefore, it alleges that it does not have the burden of satisfying the Board that the existing bargaining units are no longer appropriate.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-6", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 24–27", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The CCT submits that, in this application for certification, the Board simply has to satisfy itself that the bargaining unit applied for is appropriate and meets the purpose of the Code, which is to promote effective and sound labour-management relations. It submits that the bargaining unit applied for is appropriate, considering the structure and nature of the operations carried on by the employer.\n\nThe CCT also alleges that it is a council of trade unions, pursuant to section 32 of the Code, and enjoys the support of a majority of the employees in the proposed bargaining unit.\n\nThe Syndicat des travailleuses et travailleurs de Sécuricor - CSN filed a request to intervene with the Board. The Board granted the request since this union was involved in the vote ordered by the Board in Securicor Canada Ltd., operating as Securicor Cash Services, supra, for the employees of Securicor working in the Montréal region.\n\nThe CSN submits that the Canada-wide bargaining unit sought by the CCT is not appropriate because it does not meet the criteria set out in the Code. The CSN is of the view that the CCT’s application covers a group of employees who have already decided to change bargaining agents.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-7", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 28", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The relevant provisions in this matter read as follows: 24.(1) A trade union seeking to be certified as the bargaining agent for a unit that the trade union considers constitutes a unit appropriate for collective bargaining may, subject to this section and any regulations made by the Board under paragraph 15(e), apply to the Board for certification as the bargaining agent for the unit. (2) Subject to subsection (3), an application by a trade union for certification as the bargaining agent for a unit may be made (a) where no collective agreement applicable to the unit is in force and no trade union has been certified under this Part as the bargaining agent for the unit, at any time; (b) where no collective agreement applicable to the unit is in force but a trade union has been certified under this Part as the bargaining agent for the unit, after the expiration of twelve months from the date of that certification or, with the consent of the Board, at any earlier time; (c) where a collective agreement applicable to the unit is in force and is for a term of not more than three years, only after the commencement of the last three months of its operation; and (d) where a collective agreement applicable to the unit is in force and is for a term of more than three years, only after the commencement of the thirty-fourth month of its operation and before the commencement of the thirty-seventh month of its operation and, thereafter, only (i) during the three month period immediately preceding the end of each year that the collective agreement continues to operate after the third year of its operation, and (ii) after the commencement of the last three months of its operation. ...", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-8", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 28", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "27.(1) Where a trade union applies under section 24 for certification as the bargaining agent for a unit that the trade union considers appropriate for collective bargaining, the Board shall determine the unit that, in the opinion of the Board, is appropriate for collective bargaining. ... 28.Where the Board (a) has received from a trade union an application for certification as the bargaining agent for a unit, (b) has determined the unit that constitutes a unit appropriate for collective bargaining, and (c) is satisfied that, as of the date of the filing of the application or of such other date as the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent, the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit. ... 29.(2) Where a trade union applies for certification as the bargaining agent for a unit in respect of which no other trade union is the bargaining agent, and the Board is satisfied that not less than thirty-five per cent and not more than fifty per cent of the employees in the unit are members of the trade union, the Board shall order that a representation vote be taken among the employees in the unit. ... 32.(1) Where two or more trade unions have formed a council of trade unions, the council so formed may apply to the Board for certification as the bargaining agent for a unit in the same manner as a trade union. (2) The Board may certify a council of trade unions as the bargaining agent for a bargaining unit where the Board is satisfied that the requirements for certification prescribed by or pursuant to this Part have been met.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-9", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 28–30", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "(3) Membership in any trade union that forms part of a council of trade unions is deemed to be membership in the council of trade unions. (4) Where a council of trade unions is certified by the Board as the bargaining agent for a bargaining unit, (a) the council of trade unions and each trade union forming the council of trade unions is bound by any collective agreement entered into by the council of trade unions and the employer concerned; and (b) this Part applies, except as otherwise provided, as if the council of trade unions were a trade union.\n\nThe Board must first consider the issue regarding the CCT’s status. Does the CCT have status to file an application for certification to represent all Securicor employees in Canada? An applicant council of trade unions seeking to be certified must meet the conditions set forth in section 28 of the Code. As well, in cases regarding an application for certification by a council of trade unions, section 32(2) of the Code provides that the Board may certify the council if it is satisfied that the requirements for certification set out in Part I of the Code have been met. Accordingly, even if these requirements have been met, the Board still has a discretion to exercise when determining whether or not to issue the requested certification order.\n\nIn MacCosham Van Lines Ltd. (1984), 56 di 192; 7 CLRBR (NS) 216; and 84 CLLC 16,051 (CLRB no. 474), the Board stated that a council of trade unions consists of two or more trade unions that have banded together in order to become a single bargaining agent.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-10", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 31–33", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In Canadian Pacific Express and Transport (1988), 73 di 183 (CLRB no. 682), the Board stated that, in order to obtain the status of a council of trade unions, the council must meet all the minimum requirements imposed upon a normal trade union. The Board also stated that the council must have two or more unions as its members. Its members must satisfy the test under the Code for trade union status. The Council must obtain appropriate authorization from each member union to act on their behalf as a bargaining agent.\n\nIn Purolator Courier Ltd. (1993), 91 di 149 (CLRB no. 1003) (upheld by the Federal Court of Appeal in Syndicat canadien des communications, de l’énergie et du papier et al. v. Conseil canadien des relations du travail et al. (1994), 174 N.R. 57), the Board mentioned that it does not require a council of trade unions that appears before it frequently to continually establish its status. The Board specified, however, that a council of trade unions must establish, whenever it applies to be certified for a bargaining unit, that it has the necessary authority under its constitution to represent the employees covered by the application and that its member unions, whose membership in the council will serve to establish its representative character, also have the necessary authority.\n\nConsequently, on the basis of the jurisprudence cited above, the Board considers, according to the documents on file, that the CCT has demonstrated its status as a council of trade unions and has showed that its member unions are indeed trade unions within the meaning of the Code. The various local union members of the CCT have also authorized the CCT to act on their behalf as a bargaining agent.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-11", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 34–37", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The CCT alleges that the proposed national bargaining unit, that it seeks to be certified to represent, is a new bargaining unit and that no trade union has been certified for the said national unit. The CCT adds that this is an application that falls under sections 24 and 32 of the Code, rather than an application under section 18.1 of the Code.\n\nThe CCT submits that it could not have applied for a review of the structure of the existing bargaining units, under section 18.1 of the Code, since it does not presently act as a bargaining agent for any of the existing bargaining units, although certain of its local unions do represent some of the existing units. Based on the certification orders issued by the Board for the units involved in this file, the Board concludes that the CCT is not certified as a bargaining agent for any of the existing bargaining units. Accordingly, its application is properly made under sections 24 and 32 of the Code.\n\nCertain incumbent unions challenge the CCT’s application and allege that it is made outside of the open period prescribed by section 24(2) of the Code.\n\nThe Board has recognized in the past that it is possible for a union to be certified for a new bargaining unit that overlaps existing bargaining units for which unions have already been certified and collective agreements are in force. The Board has concluded that such a certification would give effect to the Board’s policy of favouring regrouping and larger bargaining units.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-12", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 38", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In Canadian Broadcasting Corporation (1982), 44 di 19; and 1 CLRBR (NS) 129 (CLRB no. 383) (upheld by the Federal Court of Appeal in Claude Latrémouille v. Canada Labour Relations Board et al., file nos. A-445-82, A-467-82 and A-725-82, January 22, 1985), the Board stated that such applications were not subject to the open periods set out in the Code: UDA filed its application for certification on March 24, 1979 to cover “all moderators, interviewers and commentators of the French Radio and Television network...” At that time, UDA was a party to two collective agreements: one for television, covering a much larger number of employees than those performing the three functions listed, and running from April 1, 1977 to April 1, 1979; the other for radio, also covering a larger number of employees than those performing the three functions listed, and running from October 1, 1977 to October 1, 1979. In fact, UDA asked that a unit be formed to include employees covered in part by two different collective agreements extending over different periods. If the application had covered only television employees, it would have fallen within the time limits established in section 124(2)(c), and there would have been no discussion, since it would meet the conditions of the said section. However, an application covering radio employees only would have been inadmissible because it did not fall within the required time limits. Is the application covering employees included in the two units inadmissible because of its timing, or does it satisfy the provisions of section 124(2)(c) [now section 24(2)(c) of the Code]? ... ...", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-13", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 38", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The present application involves two small groups included in two existing units whose related collective agreements terminate on the different dates, and corresponds to the situation described in Utah Mines Ltd., supra, to which the British Columbia Board referred in White Spot Ltd., indicating that it would accept such an application. As we have said, we agree with this approach. The unit sought substantially overlaps two units, each of which is covered by a collective agreement. More important, it creates no difficulty with respect to the radio unit, since, as regards this unit, the application has been filed within the time limits prescribed by section 124(2)(c). In fact, UDA and SGCT have proceeded in the most appropriate and consistent manner possible for any union seeking to combine in a single unit two groups covered by collective agreements expiring on different dates and to give effect to the Board’s policy of favouring regroupings and ensuring the flexibility required to restructure the existing units. We conclude that their applications have been filed within the prescribed time limits. (pages 125 and 132; and 243 and 250; emphasis added)", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-14", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 39", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board also confirmed this approach in Maritime Employers’ Association and Terminaux Portuaires du Québec (1987), 65 di 162; and 19 CLRBR (NS) 34 (CLRB no. 642). In that matter, the Board concluded that the open periods set out in section 124 (now section 24) of the Code are “not intended to deal with applications for certification in which the unit sought is different or significantly larger than that for which a collective agreement is or could be in place”: The Board dismissed the objection, ruling that it could hear the application which was within the time limits prescribed by the Code for three reasons. Section 124 of the Code is not intended to deal with applications for certification in which the unit sought is different or significantly larger than that for which a collective agreement is or could be in place. This interpretation, which is compatible with the wording of the Code, is also in agreement with Board policy to encourage regroupings of bargaining units conducive to industrial peace (see Teleglobe Canada (1979), 32 di 270; [1979] 3 Can LRBR 86; and 80 CLLC 16,025 (partial report) (CLRB no. 198)). Prior to October 8, 1985, two barganing units had been declared appropriate by the Board: the longshoremen serving the longshoring companies operating in the port of Trois-Rivières and represented by Local 1846 and the longshoremen serving the port of Bécancour, also represented by Local 1846. In both cases, the Board had issued so-called geographic certifications. The instant application relates to a totally different unit covering all the longshoremen serving all the longshoring companies in both the ports of Bécancour and of Trois-Rivières. (pages 186-187; and 59-60; emphasis added)", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-15", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 40", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "More recently, this test has been set out in Ledcor Industries et al. (1998), 106 di 122; 41 CLRBR (2d) 145; and 99 CLLC 220-005 (CLRB no. 1225): Section 24(1) provides that a “trade union seeking to be certified as the bargaining agent for a unit that the trade union considers constitutes a unit appropriate for collective bargaining” may, subject to the time prescriptions, apply to the Board to be certified. The union is given broad berth, in a section 24 application, to define the unit it considers appropriate. If there is an existing certification or collective agreement “applicable to the unit” in force at the time of the unions’s application, which is substantially the same as the one that the union described in its application pursuant to section 24(1), the timeliness of the application must be determined pursuant to the provisions of section 24(2). Before applying the time limits under section 24(2), the Board is often called upon to decide whether the unit described by the union in its section 24(1) application is the same or substantially the same as the unit for which an existing certification order or collective agreement (voluntary or otherwise) exists. Ultimately, it is also the Board, by virtue of section 28, that must decide whether or not the unit that the union described in its section 24(1) application “constitutes a unit appropriate for collective bargaining.” Where application is made by a union to be certified as the bargaining agent for a unit that the Board determines to be distinct from the unit voluntarily recognized by the parties, the voluntary agreement cannot act as a bar to the application for that new unit.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-16", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 40–43", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Similar rules apply in this regard where certification applications refer to certified units that the Board considers substantially different from the units covered by the collective agreement in force on the date the application was filed (see Canadian Broadcasting Corporation (1982), 44 di 19; and 1 CLRBR (NS) 129 (CLRBR no. 383); Maritime Employers’ Association and Terminaux Portuaires du Québec (1987), 65 di 162; and 19 CLRBR (NS) 34 (CLRB no. 642); and Télébec Ltée, October 14, 1994 (LD 1362)). (pages 130-131; 154; and 143,044; emphasis added)\n\nAccording to these decisions, it is possible for a union to apply to be certified for a new bargaining unit that is substantially different from, and overlaps, existing bargaining units for which unions have already been certified and collective agreements are in force, without being subject to the open periods set out in section 24(2) of the Code.\n\nThe Board, based upon the facts of the file under review, concludes that the national unit proposed by the CCT (which includes 2,469 employees) is substantially different and distinct from the 21 existing bargaining units that presently cover employees of Securicor in numerous regions of the country. Consequently, the Board is of the view that the CCT’s application is properly described as being a new certification application that is not subject to the open period set out in section 24(2) of the Code. Accordingly, the CCT’s application is timely.\n\nThe Board, by virtue of section 28 of the Code, must decide whether the nation-wide unit, that the union described in its application, “constitutes a unit appropriate for collective bargaining.”", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-17", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 44", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In the instant matter, the Board does not have to determine the most appropriate unit nor is its mandate to review the structure of the existing bargaining units or to attempt to reconfigure them.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-18", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 45", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In TVA Group Inc., [2000] CIRB no. 67, the Board explained that some factors favour smaller units and summarized the principles that it considers when determining what constitutes an appropriate bargaining unit. Despite the fact that the application in that decision was filed pursuant to section 18.1 of the Code, the Board considers that the following comments apply to the case at hand: [81] The principles governing bargaining unit determination are well established and have been reiterated in countless decisions. Among the goals the Board attempts to achieve is to establish units that take into account both the employees’ and employer's interests such that a balance in that respect is achieved. More specifically, units should provide the employer to the greatest extent possible with the flexibility to manage its operations in a more effective and efficient manner while at the same time providing employees with the best means of protecting their rights under the Code, as well as the greatest amount of flexibility in furthering their careers. Ultimately, the Board seeks to establish units that are viable and that allow for effective collective bargaining and harmonious labour relations (see Canada Post Corporation, supra; Quebec North Shore & Labrador Railway Co. (1992), 90 di 110; and 93 CLLC 16,020 (CLRB no. 978); Canadian Museum of Civilization, supra; and Canadian Pacific Limited (1976), 13 di 13; [1976] 1 Can LRBR 361; and 76 CLLC 16,018 (CLRB no. 59)). ... [83] While the Board favours an all-employee unit or the creation and maintenance of larger bargaining units, the Board will nevertheless create less than all encompassing units or fragment an existing employee complement where there are compelling reasons to do so.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-19", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 45", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The factors that favour smaller units include a diverging community of interests, geographical factors, specific statutory provisions, the likelihood that a larger unit will not be viable, and an interest in enabling employees to obtain representation. (pages 23-24; emphasis added)", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-20", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 46", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In CFSK-TV, a Division of CanWest Television Inc., [2002] CIRB no. 199; and 87 CLRBR (2d) 85, confirmed by a reconsideration panel in CFSK-TV, a Division of CanWest Television Inc., [2003] CIRB no. 220, the Board explained that when the certification application is for a unit that is different from what currently exists, the labour relations history is a factor that will be considered as well: [45] When the unit applied for is exactly the same as a unit that is already represented, the determination of an appropriate unit is facilitated by the fact that the unit has already been found to be an appropriate unit by the Board. When the application is a raid for a unit that is different than what currently exists, the Board’s assessment of what constitutes an appropriate unit will, in almost every case, be influenced by the labour relations success of the existing unit; the labour relations history of the parties is one of the many factors that the Board will consider when determining whether a unit is appropriate. ... It would be contrary to the objectives of the Code for the Board to certify a union as the bargaining agent for a unit that is less appropriate for collective bargaining than the unit that already exists. While the Board could grant certification for a unit that is just as appropriate as the unit that is already in existence, it will almost always be the case that the unit created will be more appropriate for collective bargaining, as the Board generally seeks to improve labour relations. (pages 17-18; emphasis added)", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-21", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 47", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In Télébec Ltée (1995), 99 di 1 (CLRB no. 1133), decision upheld by a reconsideration panel in Télébec Ltée (1995), 99 di 141; and 96 CLLC 220-040 (CLRB no. 1148), the Board had to consider an application filed by a union that was seeking to represent, in a single bargaining unit, office employees from a number of bargaining units who had been represented for years by various bargaining agents. The Board mentioned that, in such a case, it should assess the appropriateness of a unit having regard to the fundamental objectives of the Code: ... the Board’s role is to provide, through the structure of bargaining units, an institutional framework within which bargaining can take place and which most accurately reflects the situation of the parties, having regard to the result sought. It stands to reason that this task differs somewhat, depending on whether one is starting from scratch or whether there are already existing units. The emphasis will be, in the first case, on access to the collective bargaining process, and in the latter case, on the proper functioning of the structure... In the present case, this distinction is also highlighted by the argument of certain parties that the Board’s role should be limited to defining appropriate units and not the most appropriate units. It is true that when the Board considers an application for certification, it does not have to determine the most appropriate unit. This does not mean, however, that all units are equally appropriate, particularly where access to unionization is not at issue, as is the case here. If this were the case, the Board’s exclusive jurisdiction to determine the appropriateness of units would have no real substance or effect.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-22", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 47–50", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "When dealing with one or more certification applications, the Board must assess the appropriateness of a unit, or a configuration of bargaining units, having regard to the fundamental objectives of the Code and the particular corporate structure into which this unit or these units must fit and develop. (page 12; emphasis added)\n\nApplying the foregoing jurisprudence to the case at hand, the Board finds that the national unit proposed by the CCT is not appropriate.\n\nWithout coming to the conclusion that the current bargaining unit structure comprising 21 bargaining units could not be reviewed, pursuant to a section 18.1 application, the Board finds that a unit covering all Securicor employees in Canada would not promote the establishment of sound and harmonious labour relations at the present time. In the instant matter, the Board examined the history of the labour relations between the parties and the fact that these relations have been established on a geographical basis. The community of interests of the employees involved is indeed strongly linked to the various geographical regions. In that respect, it should be noted that the employer opposes the CCT’s application and mentioned the fact that current independent bargaining units are working within existing collective agreements.\n\nThe Board has taken into consideration the fact that all of the current bargaining units have already been found to be appropriate at some point in time, that a successful relationship has already been established in respect of these units and that collective agreements were applicable to most of the units when the CCT’s application was filed.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-23", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 51–54", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board also considered the wishes of the employees and their right to be represented by the bargaining agent of their choice in such applications. A confidential petition was sent to the Board in that respect.\n\nMoreover, from a geographical point of view, it is not clear that the proposed structure is in the best interests of the employees scattered throughout the country. It should also be kept in mind that the Board has before it three applications for certification filed during the open period, in respect of bargaining units presently represented by Teamsters local unions and that in each application the Board has ordered that a vote be held. This is particularly the case for the Montréal region, which has close to 400 employees in the bargaining unit presently represented by the Teamsters local union. Without drawing any conclusions, given that the ballot boxes are being kept sealed, these applications indicate that a certain number of employees wish to change bargaining agents.\n\nFor all of these reasons and having regard to the objectives of the Code, the Board considers that the unit applied for by the CCT is not appropriate for collective bargaining and that the application for certification should be dismissed.\n\nNotwithstanding the above conclusion on the appropriateness of the bargaining unit, the Board nevertheless considered the question of union support in this application as this question is of great interest and may be raised in other files.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-24", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 55–56", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In a regular certification application, pursuant to section 29(2) of the Code, the union simply needs to prove it has the support of between 35% and 50% of the employees in the unit in order to obtain a vote. When attempting to displace an incumbent bargaining agent, a situation termed “raid” in the current language of labour relations, the applicant union must at the time of the raid application have more than 50% of the employees as members of the union. The Board’s concern is to preserve industrial peace (see CJMS Radio Montréal (Québec) Limitée (1978), 33 di 393; and [1980] 1 Can. LRBR 270 (CLRB no. 151); Canadian Pacific Express and Transport Ltd., supra).\n\nThe Board, in Loomis Armored Car Service Ltd., July 17, 1999 (CIRB LD 97), determined that when an application for certification filed by a council of trade unions is intended to oust or displace certified bargaining agents that are not members of the said council, the situation must nevertheless be regarded as being in the nature of a raid. In that decision, the Board reconsidered an order that certified the Western Canada Council of Teamsters for a bargaining unit comprising all employees of Loomis Armored Car Service Ltd. Securicor is in fact the successor employer to Loomis in the provinces of Alberta, Saskatchewan and Manitoba. In that matter, the reconsideration panel asked the original panel to reconsider its initial decision with a view to determining whether different considerations should apply where the certification is being sought by a council of trade unions, rather than a single trade union.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-25", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 57–58", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In that reconsideration decision, the Board mentioned that the application for certification of a bargaining unit spanning the Prairie region could be considered as being in the nature of a raid as the applicant was seeking to displace bargaining agents representing smaller units sought by the raiding union. The Board made the following comments: Essentially, the present application can be considered as being in the nature of a raid as there are existing bargaining agents, not members of the council which the applicant seeks to displace. Thus the Board must ensure the representive nature of the applicant among the employees of the proposed bargaining unit and thereafter, exercise its discretion under section 32 of the Code in favour of the applicant council. Nor should section 32 be seen as a means of bringing into the fold a greater number of employees than contemplated in the original certifications. (Loomis Armored Car Service Ltd., supra, page 3; emphasis added)\n\nIn Tank Truck Transport Inc. et al., [1999] CIRB no. 27, the Board had to consider an application for certification filed by the CCT (as in the present matter), pursuant to section 32 of the Code, for all the employer’s businesses. The employees of the main employer’s business were already represented by a union of Teamsters locals. The CCT was seeking to enlarge the bargaining unit by including the unrepresented employees of the employer’s three other businesses. In that decision, the Board considered the application as being in the nature of a raid: [16] While purporting to be a new application for a larger group of employees, the instant application was considered by the other parties and the Board as being in the nature of a raid. (page 7; emphasis added)", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-26", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 59", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In VIA Rail Canada Inc. (1993), 92 di 90 (CLRB no. 1022), the Board reviewed an application for certification filed by a council of trade unions (the Council of Railway Unions), pursuant to section 32 of the Code, for a unit of shopcraft employees. The unit had already been found, pursuant to section 18 of the Code, to be appropriate for collective bargaining in VIA Rail Canada Inc. (1992), 90 di 1 (CLRB no. 963). In VIA Rail Canada Inc. (1022), supra, the Board observed that the application for certification filed by the Council of Railway Unions covered a broader unit than had previously existed and determined that the application was in the nature of a raid. The Board dismissed the application as the membership evidence did not indicate that the council represented a majority of the employees in the bargaining unit: The present application may be considered as being in the nature of a raid. Certainly there are existing bargaining agents, which the applicant seeks to displace, although those bargaining agents of course represent employees in the existing craft bargaining units, whereas it is the right to represent the employees in the new unified unit that, given our determination as to the appropriate unit in this case, is in issue here. The effect of section 29 of the Code is that a raiding trade union is not entitled to be placed on a representation ballot unless it can establish that a majority of the employees in the bargaining unit are among its members. ... (pages 92-93; emphasis added)", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-27", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 60", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In Télébec Ltée, supra, the Board did not allow one of the applicant unions to participate in the representation votes, ordered in respect of the new bargaining units. In that matter, six unions had applied for certification further to the transfer of constitutional jurisdiction from the provincial to the federal level. One of the applicant unions, the Syndicat des travailleurs et travailleuses de Télébec-CNTU (CNTU), had never represented employees of Télébec before and sought to represent a unit larger than the provincially recognized units. The original panel decided that all the provincially recognized bargaining agents, who filed certification applications, could participate in a vote save and except the CNTU, because it did not meet the basic requirements of the Code with respect to a union’s representative character.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-28", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 61", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The reconsideration panel dismissed the application and considered the CNTU’s application as a raid: This characterization stemmed from the fact that the CNTU was seeking to represent, in a single bargaining unit, office employees from a number of bargaining units who were represented for years by various bargaining agents. Although the certification application sought to redefine the bargaining structure for the office employees, it was not a first attempt at unionizing these employees, or at acquiring for them the right to bargain collectively. Its main purpose was to oust the incumbent bargaining agents. In this sense, CNTU’s application corresponds to the notion of raiding which the Board has adopted and has applied until now. Over the years, the Board has developed principles governing membership support in the case of raid situations. The first decisions dealing with this question held that the unit sought must be identical to the existing unit and that the union seeking to oust another union must have the support of more than 50% of the employees in the unit when it files its certification application. If the incumbent bargaining agent still represents a majority of employees, the Board orders a representation vote under section 29(1) to satisfy itself, in accordance with section 28(c), that a majority of employees wants to be represented by one of the unions. However, if the Board is satisfied that the raiding union has the required majority, it can certify it without a representation vote. ... So far, the Board has followed this approach in all raid situations, including Télé-Métropole Inc. (1992), 88 di 205 (CLRB no. 951); and VIA Rail Canada Inc. (1993), 92 di 90 (CLRB. no. 1022).", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-29", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 61", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In both cases, the Board reaffirmed that a union seeking to oust one or more other unions must have the support of more than 50% of the employees in the unit sought. (Télébec Ltée, supra, pages 145 and 148; and 143,387-143,389; emphasis added)", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-30", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "para 62", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The reconsideration panel stated that the requirement found in section 29(2) of the Code, that a mandatory vote must be held when between 35% and 50% of the employees in the unit are members of the trade union, only applies when the employees affected by the application for certification are not already represented by a union (“open field”). The Board confirmed that when the employees included in the new bargaining unit are already represented by many recognized bargaining agents, the applicant union must at the time of the raid application have more than 50% of the employees as its members in order to obtain a vote: In support of its reconsideration application, the CNTU proposed a literal interpretation of section 29(2). It argued that a vote is mandatory in the case of the office employee unit in respect of which, it claims, “no other trade union is the bargaining agent.” In our opinion and given the Board’s recent definition of this unit, this argument does not take into account past Board decisions which have established that section 29(2) of the Code does not apply to a “raiding” application. The main purpose of such an application is to enable employees to change bargaining agents. This provision applies only where there genuinely is a so-called “open field,” that is, where there is no union. CNTU’s interpretation apparently does not take into account the overall provisions of the Code concerning the representative character or their purpose, including the objective of the mandatory vote under section 29(2) which, in the final analysis, must allow non-unionized employees to decide whether they really want to be represented by a union.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-31", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 62–63", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In the Board’s opinion, this interpretation is confirmed by section 30(2) which gives employees the opportunity of choosing not to be represented by one of the trade unions named on a ballot, where the field is open. ... The purpose of section 29(2) is therefore to facilitate access to collective bargaining by employees not represented by a bargaining agent. However, in the present case, one fact is undeniable: employees included in the new bargaining unit are already represented by many recognized bargaining agents. ... The Board sees no reason to depart from the membership support rule imposed on a raiding union as it has been applied since the 1972 amendments; this rule also applies in raid situations where the bargaining unit configuration is altered. Such a change does not fundamentally alter the nature of the application, or the applicable membership support rule. ... For all practical purposes, to accept CNTU’s interpretation would mean that the industrial peace sought by the membership support rule in raid situations would be jeopardized, since a raiding union with the support of between 35% and 50% of the employees in a unit could require a vote, by convincing the Board that the bargaining unit should be redefined. The Board therefore believes that CNTU’s argument cannot serve as the basis for reversing its longstanding membership support rule in raid situations. (Télébec Ltée, supra, pages 149-150; and 143,389-143,390; emphasis added)\n\nThus, according to the principles set out above, the Board finds that this is an application for certification in the nature of a raid and that, in this type of case, the Board requires that the raiding union demonstrate that it has majority support, that is, more than 50% of the employees in the proposed bargaining unit.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5491-32", + "doc_type": "caselaw", + "act_code": "2004 CIRB 304", + "act_short": "Securicor", + "act_name": "Securicor Canada Limited", + "section": "", + "citation": "Securicor Canada Limited, 2004 CIRB 304", + "marginal_note": "paras 64–66", + "heading": "Certification and bargaining-unit determination under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board found in the instant matter that the applicant union does not have the support of the majority of the members comprised in the unit sought, that is 50%.\n\nThe Board found that the CCT had the necessary status to bring this certification application before it. The Board concluded that the proposed bargaining unit was not appropriate for collective bargaining pursuant to section 28 of the Code. Even had the bargaining unit been appropriate, the Board would not have certified the CCT, since it lacked the support of the majority of the employees in the proposed unit. Considering these conclusions, it was not necessary for the Board to decide whether it would have been appropriate to exercise its discretion to certify the CCT under section 32(2) of the Code, given all the circumstances in this case, including the reference to the CCT in one of the collective agreements filed with the Board.\n\nFor all of the above reasons, the Board dismisses the application filed by the Canada Council of Teamsters and orders that the ballot boxes kept sealed in file nos. 24064-C, 24207-C and 24215-C, while awaiting the result of the present application, be opened.", + "current_to": "2004-12-23", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5491/index.do" + }, + { + "id": "cirb-5593-1", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 1–2", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board is seized with two parallel applications, one filed on March 13, 2007, by the United Food and Commercial Workers Canada, Local 342P (the UFCW) and another filed shortly after on March 23, 2007, by the Grain Services Union (ILWU - Canada) (the GSU) (which will be collectively referred to as the unions). In both applications, the unions are seeking a declaration of a partial sale of business from Dawn Food Products (Canada) Ltd. (Dawn) to Dover Industries Limited (Dover), pursuant to section 44 of the Canada Labour Code (Part I–Industrial Relations) (the Code), and a declaration that Dover is the successor employer. The unions are seeking revised certification orders confirming that Dover is the successor employer and declaring that it is bound by the applicable collective agreements.\n\nIn its response to the two applications, Dover recognizes that it is the successor employer for that portion of Dawn’s business it acquired and that it is bound by the existing certification orders and applicable collective agreements between Dawn and the unions. However, by way of a counter application, Dover is requesting a review of the existing bargaining unit structure. It takes the position that the bargaining units represented by the UFCW and by the GSU should be consolidated in a single all-employee unit. Dover is also seeking the exclusion of two positions from the bargaining unit, the Shift Miller and the Network Administrator.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-2", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 3–5", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "By letter dated June 28, 2007, and pursuant to section 20 of the Code, the Board made the following interim decision: It is not contested between the parties and the Board is satisfied and declares that there has been a partial sale of business, within the meaning of section 44 of the Code, from Dawn Food Products (Canada) Ltd. to Dover Industries Limited and that the latter is the successor employer of a portion of the business previously operated by Dawn Food Products (Canada) Ltd. Pursuant to section 20 of the Canada Industrial Relations Board Regulations, 2001, the Board also found it appropriate to consolidate and hear the two matters together. The Board will hear the parties first on the issue of whether the existing bargaining units should be reviewed (two units vs one unit), on September 11, 12, 13 & 14, 2007 in Saskatoon, Saskatchewan at a place to be determined. The hearing will begin at 9:30 a.m. on September 11, 2007. The Board will deal with any related issues, including the question of inclusion/exclusion of the Shift Miller and the Network Administration positions, once it has determined whether to review the bargaining unit structure. Notwithstanding the above, the parties should nonetheless be prepared to discuss, during the above scheduled hearing dates, the process to be followed forward in determining any related issues, if necessary.\n\nAt the beginning of the hearing of the present matter, the parties submitted an Agreed Statement of Facts. The following is a summary of those facts, as well as other relevant facts derived from the parties’ written submissions and the evidence presented during the hearing.\n\nDover operates a flour mill located at 75 – 33rd Street in Saskatoon, Saskatchewan. Dover purchased this flour mill from Dawn on February 1, 2007.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-3", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 6–11", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "There are four commercial flour mills in the province of Saskatchewan. Two are located in Saskatoon and operate in close proximity to each other, the Dover flour mill and a flour mill operated by Horizon Milling GP (an affiliate of Cargill). Dover also operates a flour mill in Humbold. The fourth flour mill is located in Regina and is operated by NutraSun Foods.\n\nThe properties housing what is now the Dover flour mill operations comprise the following: the flour mill (the mill), the dry mix operation (the dry mix), the flour mill elevator (the elevator), the flour mill elevator annex (the annex), the flour mill elevator driveway (the driveway), and the warehouse. In addition, Dover presently occupies space in the office building owned by Dawn.\n\nWhat is now the Dover flour mill was first built in 1948. The flour mill began to operate in 1949 under the ownership of the Saskatchewan Cooperative Wheat Producers Limited. In 1953, it changed its name to Saskatchewan Wheat Pool (Saskpool).\n\nIn 1975, as part of its restructuring, Saskpool contracted out the management of its flour mill to CSP Foods Limited.\n\nIn 1992, CSP Foods Limited was discontinued and the operations of the flour mill reverted to Saskpool. Saskpool retained the business name CSP Foods which was known as “CSP Foods, a Division of Saskatchewan Wheat Pool.”\n\nOn February 25, 2002, Saskpool sold the Saskatoon flour mill to Dawn. Dawn operated both the flour mill and a wet goods plant. As stated above, Dawn sold the flour mill operations to Dover in February 2007. Dawn continued to operate the wet goods plant, which has since been closed.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-4", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 12–17", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The mill property is located on both sides of non-operative railway tracks. Historically, the operations on the east side of the tracks were performed by members of the GSU while the operations on the west side of the tracks were performed essentially by members of the UFCW. Today, to the exception of the administration office, no part of the operations is located on the west side of the tracks.\n\nThe Saskatchewan Wheat Pool Employees’ Association was first certified as the bargaining agent of a unit of office, clerical and other salaried employees of the flour mill, in April 1953. Ultimately, the GSU was the named bargaining agent for this unit. Throughout the years, different applications were filed with this Board and its predecessor to revise the certification order in order to reflect the proper union and/or employer names.\n\nThe current certification order describes the bargaining unit represented by the GSU as follows: all office (including Distribution Centre Office employees), laboratory, elevator, seed plant, and wet goods plant employees employed in Dawn Foods Products (Canada) Ltd.’s Saskatoon, Saskatchewan location, excluding casual employees, corporate office staff, administrative coordinator and those above the rank of administrative coordinator.\n\nThe most recent collective agreement between Dawn and the GSU has a term of February 1, 2006 to January 31, 2009.\n\nAs of the date of the GSU’s application, the bargaining unit represented by the GSU comprised the following number and classifications of employees:\n\nThe employees in the bargaining unit listed above are grouped under the following general classifications: Production Office, Main Office, Laboratory, FM Driveway and Flour Mill.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-5", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 18–24", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Following the sale from Dawn to Dover, 24 members of the GSU remained employees of Dawn in that portion of its operations which was not sold to Dover.\n\nThe United Packinghouse Workers of America (UPWA), Local 426, was first certified as the bargaining agent to represent the production employees at the flour mill, in April 1949. Ultimately, the UFCW became the bargaining agent for this bargaining unit. Throughout the years, different applications were filed with this Board and its predecessor to review the certification order to reflect the proper name of the union or the employer.\n\nThe current certification order describes the bargaining unit represented by the UFCW as follows: all employees of Dawn Food Products (Canada) Ltd. working at or from its flour mill in Saskatoon, Saskatchewan, excluding office staff, laboratory staff, shift millers, grain buyers, managers and those above.\n\nThe most recent collective agreement between Dawn and the UFCW has a term of March 1, 2005 to February 29, 2008.\n\nAs of the date of the UFCW’s application, the bargaining unit represented by the UFCW comprised the following number and classifications of employees:\n\nThe employees in the bargaining unit listed above are grouped under the following general classifications: Flour Mill Elevator Mill, Bakery Mix, Maintenance, Warehouse and Packing.\n\nFollowing the sale from Dawn to Dover, all of the members of the UFCW became Dover employees.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-6", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 25–27", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Dover is asking for a review of the existing bargaining unit structure composed of two bargaining units to combine them in a single all-employee bargaining unit. It takes the position that in the case of a sale of business, the test to be applied under section 45 of the Code is whether the employees concerned constitute one or more units appropriate for collective bargaining. Dover maintains that it is not necessary, in the context of a sale of business, to demonstrate that the existing bargaining unit structure is no longer appropriate.\n\nDover submits that, in applications for a declaration of a sale of business, because section 45 was added to the Code, the Board is no longer limited to the threshold test whereby it must find that the existing structure is no longer appropriate prior to reviewing the bargaining units. It submits that when section 45 applies, the Board has the authority to review the existing bargaining unit(s) in the context of its determination of “whether the employees affected constitute one or more units appropriate for collective bargaining.”\n\nIn support of its position, Dover relies on the Board’s decisions in Expertech Network Installations Inc., 2002 CIRB 182; Island Tug and Barge Limited and Canadian Merchant Service Guild, 2001 CIRB 112; and Télébec Ltée (1995), 99 di 1 (CLRB no. 1133).", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-7", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 28–29", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Dover also submits that notwithstanding that the test under section 45 applies, it is clear on the facts that there has been a substantial change in circumstances. These changes include the fact that the GSU has lost approximately 75% of its members in recent years. The size of the bargaining unit represented by the GSU also decreased by 24 members at the time of the partial sale from Dawn to Dover in February 2007. Dover submits that the most dramatic change resulting from the smaller bargaining unit represented by the GSU is that it has now lost any flexibility in drawing appropriate relief coverage for positions from within this unit.\n\nIn further support of its position that the Board should combine the two existing bargaining units in a single all-employee unit, Dover argues that when one looks at the usual factors canvassed in assessing the appropriateness of bargaining units, including the community of interest, the history of collective bargaining, the viability of the units, employee wishes, industry practice or pattern, the organizational structure of the employer and the Board’s preference for larger all-employee units, everything points, in the present case, to combining the existing two bargaining units in a single all-employee unit.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-8", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 30–31", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In particular, Dover points to the existing seniority issues when employees wish to transfer from one bargaining unit to the other, the difficulty in obtaining relief coverage, and filling vacancies for the production office and the driveway workers. The employer also points to the limited bumping and promotion options of employees from one bargaining unit to the other. More specifically, it submits that the small number of positions (15) in the bargaining unit represented by the GSU at Dover results in those employees having limited options in the event of a reduction in the workforce, as compared to what would be available to them under a single bargaining unit structure. The employer points also to potential limitations for members of the UFCW seeking to be transferred to less physically demanding work, to accommodate medical restrictions for example.\n\nAccording to Dover, some collective bargaining and labour relations issues are arguments in support of a single bargaining unit. These include the cost of administering two collective agreements, issues relating to the common pension plan for both units which can only be addressed in crisis situations, the existence of two parallel grievance processes, and the higher risk of labour disruption and the potential for the employer being whipsawed in negotiations. According to Dover, the existence of two bargaining units has created anomalous situations like the Assistant Millers (members of the UFCW) being paid more than the Shift Millers (members of the GSU) for a certain period of time because negotiations are separate.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-9", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 32–34", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Dover submits that the artificial jurisdictional lines between the existing bargaining units have resulted in significant and unnecessary inefficiencies, and that the two bargaining units as presently configured make no labour relation sense. Dover states that it would be virtually impossible for someone who has no knowledge of the jurisdictional lines existing between the two bargaining units to correctly determine where the dividing line is. According to Dover, the existing two bargaining units do not provide it with the necessary flexibility to manage its operations in a more effective and efficient manner and provide at the same time the employees affected with the best means of protecting their rights under the Code.\n\nDover maintains that if the Board was to disregard for a moment the existing bargaining rights of the unions and determine what bargaining unit configuration is appropriate in the circumstances, it is clear that an all-employee bargaining unit would be the answer. According to the employer, if the status quo remains, it will be at the expense of promotional opportunities and job security of the affected employees and it will continue to create difficulties, including, in the event of future expansion.\n\nFinally, Dover confirms that it has always had a good working relationship with both the GSU and the UFCW and that it does not have a preference for either union, as long as it can deal with a single all-employee bargaining unit.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-10", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 35–38", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The GSU takes the position that the employer’s application for a bargaining unit review is premature since it was made only two months after the sale from Dawn to Dover. According to the GSU, if the existing bargaining unit structure did create actual obstacles, Dover’s predecessor could have approached the unions earlier to discuss any possibility of reconfiguring the bargaining units or it could have applied to the Board at the time of previous transfers.\n\nWhile the GSU recognizes that the present bargaining unit structure is unique or unusual, it maintains that there is no evidence that the structure is inappropriate or not viable or that it has caused any serious or prolonged labour dispute. It also recognizes that there have been grievances relating to the jurisdiction of the units, but points to the fact that the parties were always able to resolve them without the need to go to arbitration. According to the GSU, the employer has not established that the existing bargaining unit structure causes actual hardship.\n\nThe GSU submits that there are more distinguishing factors than there are similarities between the two bargaining units. To illustrate this point, it submits that each union has a distinct representational model. It explains that the reason that the extended medical plan which the GSU has negotiated for its members is not available for the members of the UFCW is because the latter have made a conscious decision not to spend any money on such a plan.\n\nFinally, it asserts that there is no evidence that the employees concerned want to have the existing two bargaining units combined in a single all-employee unit.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-11", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 39–41", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Like the GSU, the UFCW submits that Dover’s application for a review of the bargaining units is premature, that the employer must first establish that the current bargaining unit structure is no longer appropriate and that, consequently, Dover has not met the threshold test required under section 18.1 of the Code to justify a review.\n\nThe UFCW submits that the current bargaining unit structure has existed for many years and history has shown that, for over 50 years, two separate bargaining units can indeed work well. It argues that there has been no real change in the type of business currently owned and operated by Dover from what was in place when it was first certified, that is, a flour and packaging mill. The UFCW also submits that there has been no real effort on the part of Dover to address the problems it has outlined in its application. According to the UFCW, all of these problems can be addressed in collective bargaining. It suggests that there may be a number of solutions to the issues raised by the employer, including, bringing some adjustments to the existing bargaining units.\n\nFinally, the UFCW submits that if the Board determines it is appropriate to combine the existing bargaining units, the parties should be given some time to reach an agreement concerning which union should be the bargaining agent for the combined unit, as well as any other related issues.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-12", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "para 42", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The relevant sections of the Code include the following: 44.(2) Where an employer sells a business, (a) a trade union that is the bargaining agent for the employees employed in the business continues to be their bargaining agent; ... (c) the person to whom the business is sold is bound by any collective agreement that is, on the date on which the business is sold, applicable to the employees employed in the business; and ... 45. In the case of sale or change of activity referred to in section 44, the Board may, on application by the employer or any trade union affected, determine whether the employees affected constitute one or more units appropriate for collective bargaining.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-13", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "para 43", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The question of which test to apply under a section 18.1(1) review application, as opposed to an application in the context of a sale or change of activity under section 44 of the Code, was canvassed by the Board in Expertech Network Installations Inc., supra: [108] Unlike section 45, section 18.1(1) provides that the Board must be satisfied that the units in question “are no longer appropriate for collective bargaining.” This wording implies the demonstration that the current bargaining unit structure is inappropriate, a sort of negative proof. Section 45, however, provides that the Board may decide “whether the employees affected constitute one or more units appropriate for collective bargaining.” Although this nuance may appear subtle, the fact remains that Parliament chose these different terms for section 45, and gave the Board positive authority to determine the number of units that are appropriate. [109] Section 18.1(1) is the mechanism under which either an employer or a bargaining agent can apply independently, in the absence of any of the circumstances necessary to file the application within sections 35 or 45 of the Code, to have the Board review bargaining unit structures. As can be seen in the earlier quotation from the Sims Report, because of the “substantial disruption and expense” that bargaining unit reviews cause, it recommended that Parliament include a test for applicants to meet in order for the Board to undertake such a review absent a section 35 declaration or an application pursuant to section 45.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-14", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 43–44", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Sims Report suggested that applicants should have to “satisfy the Board that there are serious problems with the current bargaining structures”, “[o]therwise there is no justification for interfering with the employees’ choice of bargaining agent.” This is reflected in the Code by Parliament’s addition of the words “if it is satisfied that the bargaining units are no longer appropriate for collective bargaining” in section 18.1(1) of the Code, a wording that does not exist in either sections 35(2), 45 or 18.1(2).\n\nThe Board is of the view that Dover���s application is timely and that it is not premature. The Board agrees with Dover that the time for it to apply for a review of the bargaining units was in conjunction with the unions’ applications for a declaration of a sale of business pursuant to section 44 of the Code. A partial sale of business occurred from Dawn to Dover. This event triggered the present applications to have Dover recognized as the successor employer and it is appropriate, in the context of these applications pursuant to section 45 of the Code, to determine any questions in respect of the bargaining units. Having said this, it does not mean that the Board will review existing bargaining unit structures without being convinced that there exist valid labour relations reasons to do so. However, in the context of a sale of business, the Board does not need to be satisfied that the units in question are no longer appropriate for collective bargaining to modify the bargaining unit structure.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-15", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 45–47", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Section 18.1(2) of the Code provides that if the Board reviews the structure of the bargaining units, pursuant to section 18.1(1) or section 35 or 45, it must allow the parties to come to an agreement, within a period that the Board considers reasonable, with respect to the determination of the bargaining units, and any questions arising from the review.\n\nIn the present matter, it was clear from the parties’ submissions with respect to the determination of the bargaining units, that the two possible outcomes were either to maintain the existing two bargaining units, as argued by the GSU and the UFCW, or to combine the two units in a single all-employee unit, as requested by Dover. This was confirmed by the Board in its interim decision of June 28, 2007, in which it confirmed the partial sale of business from Dawn to Dover and scheduled dates in September to “hear the parties first on the issue of whether the existing bargaining units should be reviewed (two units vs. one).” The Board is of the view that the parties had a reasonable amount of time, since the filing of their respective positions, to come to an agreement on the issue of whether the two existing bargaining units should be maintained or if they should be combined in one unit and, consequently, that the requirement of section 18.1(2) has been met in this regard.\n\nFor the reasons that follow, the Board has determined that the existing bargaining unit structure should be reviewed and that the existing two bargaining units should be combined in a single all-employee bargaining unit.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-16", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 48–50", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The flour mill operation, which is the subject of the present applications, has operated for several decades and both the GSU and the UFCW, and their respective predecessor unions, have represented employees of the mill since its early years of operation. There has been, over the years, a stable and mature collective bargaining relationship between the employer and the unions.\n\nEssentially, the unions argue that separate bargaining units have existed for more than 50 years and that these two bargaining units have been historically, and remain to date, appropriate for collective bargaining. They maintain that the administrative inconveniences raised by Dover should not outweigh the employees’ right to be represented by the union of their choice.\n\nThe Board understands the unions’ desire to preserve their respective representational rights. The Board is also very sensitive to the fact that, in the present matter, both unions have been the bargaining agents for their respective group of employees for several decades, at what is now the Dover mill. Although not insignificant, this factor is one among others to be considered. As the Board has previously stated, when it must determine whether to review existing bargaining units pursuant to section 45 of the Code, it examines several factors which, viewed as a whole, will assist the Board in its determination to review or not the existing bargaining unit structure (see Expertech Network Installations Inc., supra; BCT.TELUS, 2000 CIRB 73; TVA Group Inc., 2000 CIRB 67; and Télébec Ltée, supra).", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-17", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 51–53", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In the present matter, the Board is convinced that the rationale that may have existed over the years for maintaining two separate bargaining units no longer exist and that combining the existing two units in a single all-employee bargaining unit will provide a sound foundation and promote both business efficiencies and industrial relations stability in the future. The following factors have brought the Board to this conclusion.\n\nWhen the unions were first certified as bargaining agent for their respective bargaining units, and for many years after, the physical and functional distinctions between the two groups of employees were much more obvious than what they have become today.\n\nIn regard to the physical distinctions, by design or by coincidence, the railway tracks have, through the years, created a physical divide between the two bargaining units. The flour mill portion of the operations—where the members represented by the UFCW work—was and still is located on the east side of the railway tracks. The members of the GSU, to the exception of a few, worked in the part of the operations located on the west side of the tracks. Over the years and starting in 1988, the operations located on the west side of the tracks, except for the administration office, have been discontinued. In addition, with the passage of time, some positions were transferred from the west to the east side of the tracks, including the positions of production planner, production support clerk and shipping clerk. The laboratory employees also moved from the administration office to the plant. The lab is now located outside the production area on the second floor of the plant.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-18", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 54–56", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The traditional physical divide created by the railway tracks no longer exists. The only area where the geographic delineation between the two bargaining units is still noticeable is in respect to the office employees represented by the GSU. Although the administration offices are still located on the west side of the track, the evidence shows that it is probable that the administrative offices will be relocated to the mill building on the east side of the tracks because Dover does not own the office space it currently shares with Dawn, as its subtenant.\n\nWith respect to functional distinctions, as stated previously, over the years most of the operations outside of the flour mill have been discontinued. Following its acquisition of Dawn’s flour mill, Dover reverted to its core fundamental business of flour milling. Dover’s core business at its Saskatoon location is to receive grain, blend it, mill it into flour, package the flour, store the flour in its warehouse, and then ship it to customers.\n\nAll of Dover’s employees play a role in this integrated process. In fact, most of the employees in the unit represented by the GSU work closely with and in close proximity to the employees of the bargaining unit represented by the UFCW. The existence of a strong community of interest between employees in both bargaining units is undeniable. In some cases, there exists a greater community of interest between GSU and UFCW bargaining unit positions than there is between different positions within the same bargaining unit.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-19", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 57–59", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "For example, the Production Office, which currently comprises three positions of the bargaining unit represented by the GSU (Production Planner, Shipping Clerk and Production Support Clerk), is located on the main floor of the mill, just outside of the Warehouse where employees represented by the UFCW work. The employees in the Production Office must work closely with the Warehouse employees to assess production needs.\n\nThe Shift Millers (position represented by the GSU) and the Assistant Shift Millers (position represented by the UFCW) have very similar functions, in all respect. The employees in both positions work side by side in that they share a very small office space in the plant. They possess the same certified qualifications. The logical replacement or back-up for the position of Shift Miller is the Assistant Miller. As noted by the employer, because these two positions are not in the same bargaining unit and their terms and conditions of employment are negotiated separately, this has resulted in the past in the Assistant Miller receiving a higher rate of pay than the Shift Miller, for a period of time.\n\nSimilarly, the employees who work in the Driveway (included in the bargaining unit represented by the GSU) work in close proximity to the elevator employees in the bargaining unit represented by the UFCW and perform related functions in the integrated process. The Driveway employees bring in the grain and do the initial blending, while the Elevator employees blend the grain further prior to it being milled.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-20", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 60–61", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "With the advent of new technologies, the skill requirements of the laboratory employees have been reduced significantly. There are more instruments available today for plant operators to perform testing in the plant. The traditional and more physical work performed by employees in the UFCW bargaining unit has also changed over the years to a less physical type of work. This work is now more of a technical nature, like the operation of fork lifts.\n\nIn addition, a review of Dover’s organizational charts indicates that there is no clear division in the corporate structure between positions that fall under the UFCW bargaining unit and those that fall into the GSU bargaining unit. All managers report to the Director of Operations and all of the operations are serviced by a single Human Resources person. Moreover, at least half of the seven managers have employees from both bargaining units who report to them.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-21", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "para 62", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Another consideration is the fact that, from their initial creation and until more recently, the two bargaining units were relatively equal in size. Over the years and particularly with the partial sale of business from Dawn to Dover, the bargaining unit represented by the GSU has decreased in number. It now comprises 15 permanent employees while the UFCW comprises 75 permanent employees. Although a reduction in the size of a bargaining unit is not in itself a reason to review bargaining units, it can become a factor when this bargaining unit is part of a single integrated operation. In this matter, the evidence has shown that the limited number of employees in the bargaining unit represented by the GSU has accentuated replacement and back-up problems and has limited the opportunities for employee mobility. Although some movement of employees has been possible between the two bargaining units, it has been done with considerable negotiations between the parties and with considerable time having passed prior to the transfer of seniority from one bargaining unit to the other being confirmed.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-22", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 63–65", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The uncontested evidence establishes that the current bargaining unit structure does not allow for a rational use of the workforce. The relief coverage for back-up and vacancies that previously existed is no longer available because of the smaller bargaining unit that is represented by the GSU. This creates difficulties to find effective relief coverage from within that bargaining unit. The most obvious relief coverage for some positions in that bargaining unit are often within the UFCW positions. Examples include the employees in the Production Office and in the Driveway, where the jurisdictional lines between the two bargaining units have proved problematic. Although the parties admitted that they have in part been able to work out those difficulties through meetings and accommodations, the Board is of the view that these difficulties will likely persist if two separate bargaining units are maintained.\n\nPerhaps of less importance, but nonetheless a factor, is the fact that many other commercial flour mills, including the one operated by Horizon Milling GP that is located next door to the Dover flour mill, have all-employee bargaining units that include office, clerical and laboratory employees in a single bargaining unit.\n\nAs summarized above, the overall circumstances establish that over the years and with the recent sale from Dawn to Dover, there have been substantial changes in the working environment of the affected employees at Dover. The Board is convinced that the current situation goes beyond administrative inconveniences for the employer. A single all-employee bargaining unit will result in greater employee mobility, greater employer flexibility, administrative efficiencies and, overall, greater industrial or labour stability.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-23", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 66–68", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board is mindful that there are some differences between the collective agreements of the UFCW and the GSU. These include, for example, the fact that the members of the UFCW have made a conscious decision not to contribute to an extended health plan. The seniority provisions differ slightly in each collective agreement. However, many of the provisions in both collective agreements are the same, including the provisions relating to the method of remuneration and benefits like vacations, pension plan and sick leave. Overall, the Board is of the view that the differences that exist can be dealt with and that they can be addressed in collective bargaining.\n\nPursuant to section 45 of the Code, the Board grants Dover’s counter application for a review of the bargaining units to combine the two units in a single all-employee unit. Pursuant to sections 18.1(2), (3) and (4) of the Code, the Board gives the parties until no later than April 28, 2008, to reach an agreement on the following related issues: (1) Which union will be the bargaining agent for the single all-employee bargaining unit, the UFCW or the GSU? (2) Should a representation vote be held?; and (3) All other issues arising from combining the two bargaining units, including the issue of the inclusion/exclusion of the Shift Miller and Network Administrator positions.\n\nThe Board appoints Mr. John Taggart, Senior Labour Relations Officer, to assist the parties in attempting to reach an agreement in relation to the above issues.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-5593-24", + "doc_type": "caselaw", + "act_code": "2008 CIRB 405", + "act_short": "Dover Industries", + "act_name": "Dover Industries Limited and Dawn Food Products (Canada) Ltd.", + "section": "", + "citation": "Dover Industries Limited and Dawn Food Products (Canada) Ltd., 2008 CIRB 405", + "marginal_note": "paras 69–70", + "heading": "Successor rights on the sale of a business under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In closing, the Board wishes to thank the parties and counsel for their submissions and co-operation to date. During the hearing of this matter and with the agreement of the parties, the Board requested and benefited from a guided tour of the Dover flour mill. This site visit proved to be both helpful in the Board’s understanding of the parties’ submissions and in its determination of the present matter.\n\nThis is a unanimous decision of the Board.", + "current_to": "2008-04-10", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5593/index.do" + }, + { + "id": "cirb-301063-1", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 1–4", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board is seized with two complaints by the Teamsters Local Union No. 419 (Teamsters or the union). The first complaint was filed on May 19, 2017 alleging that Swissport Canada Handling Inc. (Swissport or the employer) breached its duty to bargain in good faith, violated the statutory freeze provision, and interfered with the union’s representation of its members when it hired more than one hundred agency workers and offered pay incentives to employees after notice to bargain was served. The second complaint was filed on July 31, 2017, under section 94(2.1) of the Canada Labour Code (Part I– Industrial Relations) (the Code), in which it alleges that the employer was using replacement workers for the purpose of undermining the union’s representational capacity.\n\nDuring the course of the hearings into the first complaint, the parties concluded a new collective agreement, which was ratified by the majority of the employees in the bargaining unit on October 15, 2017. At the continuation of the hearing on October 16, 2017, the Board, on its own motion, asked the parties whether a labour relations purpose would be served by proceeding with the complaint. The parties presented oral arguments on this issue on October 19, 2017.\n\nFor the reasons set out below, the Board has decided that no labour relations purpose would be served by proceeding with these complaints.\n\nThe union represents a bargaining unit of “below-the-wing” employees working for Swissport at Lester B. Pearson International Airport in Toronto (the airport). The union and the employer were parties to a collective agreement that expired on July 23, 2017. The union served notice to bargain on December 16, 2016.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-2", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 5–6", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "On or around May 12, 2017, a number of agency workers began working at Swissport. On May 16, 2017, the union filed a grievance in which it alleges that the employer’s use of agency workers constituted improper “contracting-in” to the bargaining unit. The grievance is scheduled to be heard on September 20, 2018.\n\nThe union also filed its first unfair labour practice complaint with the Board on May 19, 2017 with additional particulars dated May 23, 2017 and July 26, 2017. In the complaint, the union alleges that the employer violated sections 50(a), 94(1) and 50(b) of the Code (Board file no. 32141-C—the “first unfair labour practice complaint”). In the first unfair labour practice complaint, the union alleges that the employer refused to negotiate rates of pay for ramp employees at the bargaining table and contracted out bargaining unit work to agency workers who were paid a higher rate of pay than bargaining unit employees. The union also alleges that the employer made offers directly to employees of double overtime for certain shifts on the weekend during the course of collective bargaining without consulting with the union. As a remedy, the union requests, among other things, “an Order of the Board pursuant to section 99(1)(b.1) of the Code that the Employer concede that the Collective Agreement between the parties shall contain a provision prohibiting the Employer from contracting out bargaining unit work”.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-3", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 7–8", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "On July 27, 2017, bargaining unit members commenced a lawful strike. In the weeks leading up to the strike action, the employer filed two separate applications for a declaration of unlawful strike pursuant to section 91 of the Code. The Board dismissed the first application because the conduct in question did not meet the definition of a “strike” (see Swissport Canada Handling Inc., 2017 CIRB LD 3826). In the context of the second application, the Board found that there was an appearance of an unlawful strike but decided that no labour relations purpose would be served by ordering a remedy where the parties faced the real threat of a lawful work stoppage in less than 36 hours (Swissport Canada Handling Inc., 2017 CIRB LD 3830).\n\nOn July 31, 2017, the union filed a new unfair labour practice complaint, under section 94(2.1) of the Code, in which it alleges that the employer was using replacement workers for the purpose of undermining the union’s representational capacity. The union contends that the employer used an increasing number of agency workers to perform bargaining unit work in the days leading up to and during a lawful strike (Board file no. 32232‑C—the “second unfair labour practice complaint”). In the second unfair labour practice complaint, the union seeks a declaration that the employer used replacement workers for the purpose of undermining the representational capacity of the union and a cease and desist order for the duration of the labour dispute.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-4", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 9–10", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "On August 10, 2017, the union filed a related application for an interim order under section 19.1 of the Code, requesting an order directing the employer to cease employing agency workers until the Board makes a determination with respect to the merits of the second unfair labour practice complaint. The Board dismissed the union’s application for an interim order on August 18, 2017 (see Swissport Canada Handling Inc., 2017 CIRB LD 3858).\n\nThe employer raised a number of preliminary objections in response to the union’s two complaints. It argued that the union’s unfair labour practice complaints did not make out a prima facie case, that they were an abuse of process, and that the Board should exercise its discretion pursuant to sections 98(3) or 16(l.1) to dismiss or defer hearing the complaints because there is an existing grievance dealing with the issue of contracting out, which has been referred to arbitration.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-5", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 11", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "After hearing oral arguments on August 22, 2017, the Board dismissed the employer’s preliminary objections pertaining to the first complaint. However, in light of the pending grievance and the Board’s general reluctance to interpret the language in the parties’ collective agreement, the panel described the essential character of the first complaint in Swissport Canada Handling Inc., 2017 CIRB LD 3849 (LD 3849) as follows: ... whether the conduct of the employer during collective bargaining and whether the use of the contracting out provision—whether permissible or not pursuant to the collective agreement—amounted to an unfair labour practice. More specifically, the Board will determine whether the manner, the timing and the effect of resorting to the contracting out provision by the employer is a violation of the duty to bargain in good faith (section 50(a)) and/or interfered with the union’s ability to represent its members in collective bargaining (section 94(1)(a)). The Board was satisfied that a prima facie case on these allegations has been made out and refused to exercise its discretion pursuant to sections 98(3) or 16(l.1) to dismiss or defer hearing the complaint. With respect to the complaint made pursuant to section 50(b), the Board indicated that this complaint was essentially rooted in a determination of whether the agency workers are employees of Swissport Canada Handling Inc., requiring an interpretation of the contracts in place and the contracting out provision as well as other provisions of the collective agreement. Accordingly, the Board concluded that this issue was better left for the grievance process and the interpretation and application of the collective agreement by an arbitrator.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-6", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 11–12", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Therefore, the Board exercised its discretion pursuant to section 98(3) and will refuse to hear this aspect of the complaint as an alleged breach of the freeze provision (section 50(b)). (page 2)\n\nOn August 23, 2017, the Board held a case management teleconference with the parties in the union’s two unfair labour practice complaints. In the course of the teleconference, the union maintained its allegations of a violation of a freeze provision as it applies to the direct offering of incentives by the employer to bargaining unit members after notice to bargain was served. As a result, the Board clarified the above ruling and allowed the union to present evidence on this specific aspect of the complaint under section 50(b) of the Code.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-7", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 13", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board invited the parties to make any additional submissions on the employer’s preliminary objections with respect to the second unfair labour practice complaint. After reviewing the parties’ additional written submissions, the Board dismissed the employer’s preliminary objections pertaining to the second unfair labour practice complaint in Swissport Canada Handling Inc., 2017 CIRB LD 3861 and indicated that it would hear the merits of the second complaint consecutively to the first complaint. In dismissing the preliminary objections, the Board described the essence of the union’s second unfair labour practice complaint as follows: The circumstances that form the basis of the complaint filed under section 94(2.1) of the Code emanate from the conduct of the employer during collective bargaining and the timing, manner and effect of the employer’s decision to resort to agency workers. Although the factual basis for this complaint is similar to or the same as the set of facts supporting the related complaint of unfair labour practice in file no. 32141-C, the union, in the instant complaint, is alleging that the continued use of agency workers by the employer once the strike began was for the purpose of undermining the union’s representational capacity in bargaining. The union relies on the conduct of the employer during collective bargaining as it relates to the decision to use agency workers and the continued use of the same workers after the strike began, and invites the Board to infer that the employer’s purpose is not the pursuit of legitimate bargaining objectives, but rather to undermine the union’s representational capacity. The Board is of the view that these issues are better left for determination through inquiry and examination of evidence.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-8", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 13", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "As pointed out by both parties, this type of complaint has rarely been examined by the Board, and its jurisprudence is still evolving in this particular area. The Board appreciates that the parties have a different interpretation of the applicable test and threshold to be met for a complaint to be successful under section 94(2.1) of the Code. As such, it is prudent for the Board to proceed to examine the merits of the complaint and make a determination as to whether there was a breach of the Code in this instance. Further, the Board is unable to conclude that the filing of the complaint pursuant to section 94(2.1) shortly after the strike began is an abuse of process in these circumstances. The union filed its complaint at the earliest convenience and as the circumstances evolved with respect to the use of replacement workers/agency workers. The fact that the complaint may be based on the same factual set of circumstances does not result in it becoming abusive. The rights in the Code are meant to be enforced as necessary, and the Board will be very reluctant to dismiss a complaint on the basis that it is abusive for raising similar facts as a previous complaint without examining its merits. Additionally, the Board has determined that the pith and substance of the complaint filed by the union is whether the use of replacement workers by the employer is for a purpose other than the legitimate pursuit of collective bargaining objectives. This is a matter that falls squarely within the Board’s jurisdiction and its authority and power to enforce the rights and policy objectives embedded in the Code. This is not a matter that can be determined or resolved through grievance arbitration.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-9", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 13–17", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Therefore, the Board will not dismiss or defer hearing the complaint pursuant to sections 98(3) or 16(l.1) of the Code. Accordingly, the Board will proceed to hear the merits of the complaint consecutively to the first complaint filed by the union in file no. 32141-C. (pages 2–3)\n\nHearings on the substance of the union’s first unfair labour practice complaint began on September 26, 2017. The bargaining unit members ratified a new collective agreement on October 15, 2017 for a three-year term. At the hearing on October 16, 2017, the Board asked whether a labour relations purpose would be served by proceeding with the complaint. The parties presented oral arguments on this issue on October 19, 2017.\n\nBoth parties submitted thorough arguments on the issue of mootness and referred the Board to a broad range of decisions from both the federal and provincial jurisdictions. The Board has carefully reviewed the parties’ submissions and the case-law provided in support. What follows is a summary of the key elements of the parties’ positions.\n\nThe employer submits that, in light of the settlement of the collective agreement and subsequent ratification of that agreement on October 15, 2017, the Board should not proceed with the union’s unfair labour practice complaint.\n\nThe employer argues that the matter is now moot since there is no longer a “live controversy” between the parties. It further argues that there is no sound labour relations purpose to be served by proceeding with the complaint, regardless of the Board’s determination on mootness. Referring to the Board’s decision in Westcan Bulk Transport Ltd. (1994), 95 di 169 (CLRB no. 1090), the employer states that the Board possesses the inherent discretion not to proceed in this matter.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-10", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 18–22", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The employer contends that the union’s allegations have been rendered moot by the mere fact of the negotiated settlement and by the actual terms of the settlement. In this regard, it explains that the return to work protocol deals with the issue of agency workers, which shows there is no lis between the parties. The employer explains that the factual event which gave rise to the complaint is the decision to contract out and bring in agency workers. The parties themselves have agreed in the terms of the ratified settlement that the employer will make best efforts to remove agency workers.\n\nThe employer invites the Board to examine the essential character of the allegations brought forth by the union under sections 50(a), 94(1)(a) and 50(b). In the employer’s view, all three aspects of the union’s complaint relate to allegations that obstacles were put in place which were preventing parties from achieving a collective agreement.\n\nThe employer argues that the purpose of proceeding and obtaining a remedy would be to enable the parties to reach a freely negotiated collective agreement, which the parties have already done in this case. The employer submits that there is no possible remedy left in this case and in any event, if there is still an issue remaining about improper contracting out, this matter will be determined at arbitration.\n\nIn summary, because the parties have already reached a freely negotiated collective agreement, the employer contends that the entire proceeding is moot.\n\nIn addition, the employer submits that no labour relations purpose would be served by pursuing the complaint.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-11", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 23–24", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "First, the employer argues that apart from a declaration of breach, the Board is without jurisdiction to issue the remedy requested by the union, namely to direct the parties to include a provision in their collective agreement prohibiting contracting out. It refers to the plain language in section 99(1)(b.1) of the Code in support of its contention that the employer cannot include a specific term on contracting out or withdraw from a bargaining position because the parties are no longer engaged in collective bargaining. The employer submits that a remedy under section 99(1)(b.1) of the Code is only available while the parties are in collective bargaining and where there is a finding of a breach of section 50(a) of the Code.\n\nSecond, the employer submits that the Board has a policy not to issue retroactive or academic declarations. In this regard, the employer refers to the Board’s decision in the first unlawful strike application between the parties, in which a cease and desist order was declined because the unlawful strike was not ongoing. The employer argues that the policy considerations in the context of an unlawful strike application are still applicable in this case.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-12", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 25–26", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Third, leaving aside section 99(1)(b.1) of the Code, the employer acknowledges that the Board still has general remedial jurisdiction under section 99(2) of the Code. It submits that the union did not seek a remedy under section 99(2) and in any event, any subsequent remedy constraining the settlement reached between the parties would be an improper intrusion into the sanctity of free collective bargaining. The employer contends that the Board will only impose terms to the collective agreement in exceptional cases, such as in Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, which was nothing like the circumstances in this complaint. The employer submits that the union is asking the Board to provide an outcome that it was unable to secure at the bargaining table.\n\nFourth, the employer submits that it would be a waste of resources to proceed with this matter. There would likely be five additional hearings days in this case not including the second unfair labour practice complaint, which is substantial. The employer presented nine will-say statements in preparation for the hearing and by the time the parties reached a collective agreement, the union was halfway into the cross-examination of the first will-say statement.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-13", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 27–29", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Regarding the union’s claim that the issue will come up again in future rounds of bargaining, the employer states that this is entirely speculative. It explains that the circumstances which led to this case were the employer’s inability to attract employees because of wages. The employer is hopeful that with higher wages in the collective agreement, the shortage of staff, which led to its decision to contract out, will not come up again. In addition, the employer states that the collective agreement has a mid-term contract provision to address future issues which arise during the term of the collective agreement.\n\nThe union submits that the complaint is not moot because the remedy it is seeking is still available. It asks the Board to amend the term of the collective agreement to prohibit the employer from contracting out. The union refers to its request on July 26, 2017 for “an Order of the Board pursuant to section 99(1)(b.1) of the Code that the Employer concede that the Collective Agreement between the parties shall contain a provision prohibiting the Employer from contracting out bargaining unit work”. It further submits that the Board should exercise its discretion to decide the complaint even if it is found to be moot.\n\nThe union argues that the Board must consider whether a remedy is still available and meaningful in this case even though a collective agreement is in place. It submits that the members of the bargaining unit understood the complaint would continue before the Board at the time they ratified the collective agreement.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-14", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 30–31", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The union contends that if the Board were to dismiss the complaint as moot, after approximately six months of litigation, it would send a clear message to union members that their statutory rights are unenforceable. In the union’s view, such a decision would promote labour unrest and would suggest that the only way to preserve statutory rights is to maintain labour disruption, which is contrary to the objectives of the Code. In other words, the union states that if the Board were to dismiss the complaint as moot, it would mean that the only way the complaint could be heard is if the employees remained on strike.\n\nThe union distinguishes the facts in this case from those in Canadian National Railway Company, 2011 CIRB 572 (RD 572), where there was no remedy sought. It notes that in RD 572, the complaint continued for one and a half years after the parties reached an agreement and the mootness issue, which was raised on the Board’s own motion, arose out of the parties’ inaction during the six previous months.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-15", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 32", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "On the issue of remedy, the union submits that both sections 99(1)(b.1) and 99(2) of the Code are available in this case. It requested that the employer concede that a collective agreement shall contain a provision prohibiting contracting out. In the union’s view, the Board has the clear authority to amend the collective agreement where circumstances warrant even if the conditions in section 99(1)(b.1) have not been met. The union refers to the decisions in Cairns, 2003 CIRB 230 and the principles therein when assessing remedial orders, namely: There must be a relation between the breach, its consequences and the remedy; The Board is justified in using its experience and special skill in crafting a remedy; The Board takes into account the objectives of the legislation; The Board has broad remedial powers under section 99(2) of the Code; and The complainant should be put in the position it would have been had the wrong not occurred.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-16", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 33–34", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "First, the union contends that the remedy sought is narrowly tailored, and rationally connected, to the illegal conduct of the employer in this case. In the union’s submission, it is the employer’s overt reliance on its legal right to contract out which has led to the breach of the Code. Therefore, the union states that the Board should order a remedy, which restricts that right. The union relies on Justice Dickson’s dissenting reasons in Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al., [1983] 2 S.C.R. 311 (the Digby School Board case) in support of its contention that the Board has the authority to make such an order prohibiting contracting out for the duration of the collective agreement. The dissenting reasons of Justice Dickson were relied upon by the majority in Royal Oak Mines Inc. v. Canada (Labour Relations Board), supra.\n\nSecond, the union urges the Board to use its expertise to consider the likelihood that a collective agreement would be ratified if the union thought the Board, on its own motion, would dismiss the complaint. The union argues that the employer’s conduct has irreparably harmed its ability to properly represent its members and to negotiate on a fair playing field. In the union’s view, it would be unfair to dismiss the complaint because it agreed to a contract and ceased labour disruption. In assessing the remedy, the union invites the Board to question why the employer did not bring forward the mootness argument. In this regard, the union suggests that the employer understood the union would be maintaining its complaint despite the conclusion of the collective agreement.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-17", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 35–37", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Third, with respect to the objectives of the legislation, the union argues that free collective bargaining is not the only objective in the Code. It argues that dismissing the complaint on the basis of mootness would run contrary to sound labour relations and sends a message to the members of the bargaining unit that they should have stayed on strike.\n\nFourth, the union argues that both sections 99(1)(b.1) and 99(2) of the Code grant the Board power to order an amendment to the collective agreement.\n\nFifth, with respect to returning the union to the position it would have been had there not been a breach, the union submits that it would be impossible to do so in this case. In the union’s view, the remedy requested only partially addresses the harm it has suffered. The union refers to its last offer to the employer on July 21, 2017 in which it amended its proposal and offered binding arbitration on the issue of no contracting out. The union states that it is only fair to ask for this remedy here, which is different from imposing a term in the collective agreement. The union submits that there is no reasonable dispute that the Board has the authority to order the remedy requested.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-18", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 38–40", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The union further argues that even if the complaint is moot, the Board should exercise its discretion to continue the hearing because the matter at issue is “capable of repetition and evasive of review”. In other words, the union submits that the issue will come up again between the parties in the future, but it is unlikely that the complaint will be adjudicated to completion in a timely manner, given the nature and complexity of such a complaint. The union alleges that in order to obtain a decision in this matter, it would have to wait a year and would therefore have had to remain on strike for seven or eight months.\n\nAs a result, the union urges the Board to exercise its discretion to continue to hear the complaint; otherwise the issue will never be determined. In this regard, the union refers to the decision in Trillium Lakelands District School Board and Upper Canada District School Board, [2013] OLRB Rep. March/April 427, in which the OLRB noted that to characterize the dispute as academic would insure that the dispute will always disappear before it can be heard. In this case, the Board has already had five days of hearing. In the union’s submission, the expenditure of resources cannot be thrown away. The union feels that it will have no access to justice without a decision on the merits of the complaint.\n\nThe Board in this case raised the issue of mootness on its own initiative. After the new collective agreement was reached, the Board asked the parties to provide oral arguments on whether a labour relations purpose would be served by proceeding with the first complaint.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-19", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 41–42", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In Westcan Bulk Transport Ltd., supra, the Board confirmed its authority to refuse to hear and determine a complaint where there is no longer a live controversy between the parties and the determination would have no practical effects on the rights of the parties. It stated the following regarding the Board’s authority to dismiss a complaint as moot: ... the Board’s obligation to “hear and determine” a complaint pursuant to section 98 cannot be interpreted to require the Board to hear the merits of complaints that are moot and for which a determination would have no practical effect on the parties’ rights. The Board has repeatedly alluded, without elaboration, in past decisions to its power to dismiss complaints which are moot; see: Québec Ports Terminals Inc. (1991), 85 di 71 (CLRB no. 870); Halifax Grain Elevator Limited (1991), 85 di 42; 15 CLRBR (2d) 191; and 91 CLLC 16,033 (CLRB no. 867); and Purolator Courier Ltd. (1981), 45 di 300 (CLRB no. 344). (pages 173–174)\n\nThe Board, as master of its own proceedings, has the authority to raise with the parties the question of whether there is a labour relations purpose in proceeding with a complaint in light of a change in circumstances. The Board exercised this authority more recently in Fredericton International Airport Authority Inc., 2012 CIRB 647.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-20", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 43", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Both parties referred the Board to the two-step analysis set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 on the issue of mootness: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. ... The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. ... (page 353)", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-21", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 44–46", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "While the approach in Borowski v. Canada (Attorney General), supra, can serve as a useful tool, the focus of the Board when it decides whether to refuse to hear and determine a complaint is generally on the issue of whether a labour relations purpose would be served by proceeding with the complaint.\n\nWith these principles in mind, first, the Board will determine whether there is a live controversy between the parties and, second, the Board will assess whether a labour relations purpose would be served by hearing and determining the complaint.\n\nAs a general rule, the Board will not automatically dismiss as moot a complaint alleging a breach of the duty to bargain in good faith solely for the reason that a collective agreement has been concluded. In fact, in Atomic Energy of Canada Limited, 2001 CIRB 110, the Board determined the merits of a bad faith bargaining complaint despite the fact that a collective agreement had already been reached. In that case, the union alleged that the employer breached its duty to bargain in good faith by failing to disclose information regarding salary increases and promotions. In finding that the complaint was not moot, the Board noted:", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-22", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 47–48", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Unless the necessary information is disclosed, the negotiation of such a remedy or even the process of administration of the collective agreement itself may be a mere sham. The failure to disclose such clearly relevant information following notice to commence collective bargaining is a clear violation of section 50(a)(i) and (ii) as alleged. The continuation of that failure is a continuing violation. This is so even after the conclusion of a new agreement, particularly so in circumstances such as the present where it was made express at the time the agreement was concluded that the information was still being sought and still viewed as of importance by the bargaining agent and where the information in question continues to be of importance. [47] The decision in Atomic Energy of Canada Limited, supra, is important in that it demonstrates that the conclusion of a collective agreement does not automatically render a bad faith bargaining complaint moot. The Board also focused on the relation between the remedy being sought and its importance to the bargaining relationship as a whole, including the administration of the collective agreement. Indeed, the information withheld by the employer was essential to the representational capacity of the bargaining agent.\n\nThat said, the Board has also found that certain complaints related to a party’s conduct during collective bargaining have been rendered moot as a result of the conclusion of a collective agreement in light of the particular circumstances of each case.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-23", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 49", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In Can-Ar Transit Services, Division of Tokmakjian Limited, October 17, 1997 (LD 1750), the union requested that a complaint alleging breaches by the employer of sections 50, 94 and 96 it had previously filed, years earlier, be consolidated and heard with a more recent application for termination of the union’s bargaining rights before the Board. The union asserted that the employer’s position during bargaining and the subsequent filing of the termination application were evidence that the employer was not acting in good faith at the time of its complaint. The Board had not determined the merits of the section 50 complaint, but had issued a declaration regarding their obligations in a collective bargaining relationship. Following this declaration, the parties negotiated and concluded a collective agreement. However, in the declaration, the Board indicated that it remained seized of the matter should any other issues arise, and the union relied on this declaration to attempt to resurrect its complaint. In dismissing the complaint as moot, the Board stated the following: Admittedly, the successful conclusion of a collective agreement does not prevent the Board from considering the merits of the complaint relating to the employer’s refusal to meet and bargain with the Union, as alleged in its complaint. Such facts—if proven—would allow for a declaration that the employer had violated the Code by having committed an unfair labour practice. The question, however, remains as to whether it is appropriate for the Board to examine and decide these issues now. The Board considers that a hearing regarding collective bargaining issues, which are now without object, would not be conducive to furthering good labour relations.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-24", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 49", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "This is particularly so when no appropriate remedy can be provided. ... ... Given the conclusion of a collective agreement subsequent to the filing of the complaint, issuing an order would have no practical effect on the parties with respect to the employer’s conduct, which allegedly took place in 1995 and early in 1996. The issues in question with respect to those negotiations are now moot (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342). In these circumstances, and in the absence of any factors which warrant us to exercise our discretion to consider the complaint on its merits notwithstanding that it is moot, the Board has decided that it will not hear the complaint. Consequently, the complaint is dismissed as being academic and the request to consolidate file 745-5316 with the application for termination of the ATU’s bargaining rights is rejected. (pages 3–4)", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-25", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 50", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Similarly, in Canadian Broadcasting Corporation (1997), 104 di 34 (CLRB no. 1201), the employer filed a bad faith bargaining complaint alleging that it was being improperly forced to bargain jointly with three bargaining agents who had entered into a Joint Bargaining Agreement and that this agreement was unlawful. The Board dismissed the matter as being moot because collective agreements had been concluded with respect to each of the three bargaining units in question and no labour relations purpose would be served by pursuing the complaint. The Board stated the following: Given that collective agreements have been concluded in respect of each of the three units in question, we do not consider it appropriate to hear what could be lengthy and contentious evidence concerning the agreement and its application. The matter is moot, and after hearing arguments from the parties on this point, we conclude that no valid labour relations purpose would be served by determining these complaints on their merits at this time. (page 37)", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-26", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 51", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "More recently, in Canadian National Railway Company, supra, the TCRC filed a complaint alleging that CN had breached its duty to bargain in good faith by pre-emptively training replacement workers on the job and having them perform bargaining unit work as a training tool. The union also alleged that these actions interfered with the trade union and undermined its representational capacity. After filing the complaint and after the union initiated a strike action, the parties reached an agreement to submit unresolved issues related to wages and benefits to binding arbitration. The Board had initially decided to continue to hear and determine the matter despite the parties’ agreement. In deciding to do so, the Board took particular note of the parties’ parallel collective bargaining negotiations that were ongoing for a separate bargaining unit and for which an identical issue with respect to the training of replacement workers had been raised. However, when that second collective bargaining dispute settled and after the parties failed to provide a status report, the Board, on its own initiative, asked the parties to show cause why the complaint should not be deemed to be withdrawn pursuant to section 29(2) of the Canada Industrial Relations Board Regulations, 2001. After considering the parties’ submissions, the Board was of the view that there was no longer a live issue in this case: [16] In the present case, it is evident that the circumstance that gave rise to the complaint, namely the training of managers to allegedly act as replacement workers in the event of a strike by the LE and/or CTY bargaining unit, no longer pertains, and thus the issue is academic.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-27", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 51–53", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Therefore, the question for the Board is whether it should exercise its discretion to decide the merits of the complaint, despite the absence of a current controversy.\n\nThe Board ultimately declined to exercise its discretion to hear and determine the complaint because no labour relations purpose would be served in doing so.\n\nIn the present matter, the parties have presented differing views on whether the complaint itself is moot as a result of the conclusion of the collective agreement. On the one hand, the employer maintains there is no longer a live controversy because collective bargaining was central to each of the allegations in the complaint and the collective agreement resolved the underlying collective bargaining obstacles. On the other hand, the union argues that the matter is not moot because there is an available remedy beyond mere declarations. In its submission of July 26, 2017, the union requested “an Order of the Board pursuant to section 99(1)(b.1) of the Code that the employer concede that the collective agreement between the parties shall contain a provision prohibiting the employer from contracting out bargaining unit work”.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-28", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 54–55", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In order to determine whether there is still a live controversy between the parties, it is necessary to carefully examine the nature of each of the union’s allegations. In the complaint, the union alleges the following: The employer violated its duty to bargain in good faith under section 50(a) of the Code when it refused to negotiate rates of pay for ramp employees at the bargaining table and decided to hire agency workers who were paid more than ramp employees. The employer interfered with the union’s ability to represent its members during collective bargaining in violation of section 94(1)(a) of the Code. The employer offered double time incentive pay after notice to bargain was given and thus violated the freeze provision in section 50(b) of the Code.\n\nIn LD 3849 the Board described the essential character of the union’s complaint under sections 50(a) and 94(1)(a) of the Code as follows: ... whether the conduct of the employer during collective bargaining and whether the use of the contracting out provision—whether permissible or not pursuant to the collective agreement—amounted to an unfair labour practice. More specifically, the Board will determine whether the manner, the timing and the effect of resorting to the contracting out provision by the employer is a violation of the duty to bargain in good faith (section 50(a)) and/or interfered with the union’s ability to represent its members in collective bargaining (section 94(1)(a)). ... (page 2)", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-29", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 56–57", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In that same decision, the Board specifically declined to make a determination which would require an interpretation of the contracts in place and the contracting out provision in the collective agreement. In the Board’s view, these issues were better left for the grievance process and the interpretation and application of the collective agreement by the grievance arbitrator.\n\nThe circumstances that gave rise to the union’s complaint under sections 50(a) of the Code and 94(1)(a) of the Code are the employer’s refusal to negotiate rates of pay for ramp employees at the bargaining table and the employer’s decision to hire more than a hundred agency workers after notice to bargain was given. The employer noted, and the union did not dispute, that the newly negotiated collective agreement provides higher rates of pay for ramp employees and allows the parties to conclude mid-term contracts. In addition, in the parties’ return to work protocol, it is specifically stipulated that the employer will “make every best effort to eliminate the services of agency/replacement workers currently engaged by the Employer within sixty (60) days following ratification of the Memorandum of Settlement.” In the return to work protocol, the parties also acknowledged that the agency/replacement workers may be hired into the bargaining unit. In the Board’s view, these elements combined show that there is no longer a live controversy regarding the circumstances which led to the filing of the complaint under section 50(a) and 94(1)(a) of the Code. The collective agreement reached by the parties addresses the key issues that were central to the complaint.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-30", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 58–59", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Similarly, the Board is of the view that there is no longer a live controversy regarding the breach of the statutory freeze provision. In United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., 2014 SCC 45, the majority of the Supreme Court of Canada recently reaffirmed the purpose of the statutory freeze provision as follows: [34] In my opinion, the purpose of s. 59 in circumscribing the employer’s powers is not merely to strike a balance or maintain the status quo, but is more precisely to facilitate certification and ensure that in negotiating the collective agreement the parties bargain in good faith (Bergeron, at pp. 142 and 147; F. Morin, Le Code du travail: sa nature, sa portée, ses effets (1971), at pp. 16-17; Club coopératif de consommation d’Amos v. Union des employés de commerce, section locale 508, SOQUIJ AZ-85141201 (T.A.), at pp. 11–12; Association des juristes de l’État v. Commission des valeurs mobilières du Québec, [2003] R.J.D.T. 579 (T.A.), at para. 71).\n\nThus, the statutory freeze provision is a measure designed to not only maintain the status quo but also acts as a safeguard to ensure that the parties bargain in good faith with the objective of concluding a collective agreement. Since the parties were able to achieve a freely negotiated collective agreement, there is no longer a live controversy regarding the employer’s alleged attempts to influence collective bargaining by offering incentives to employees during the freeze period. Accordingly, the Board finds that there is no longer a live controversy regarding the circumstances which led to the filing of the complaint under section 50(b) of the Code.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-31", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 60–61", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The union urged the Board to consider that the complaint is not moot, because it is still requesting a remedy, which includes an order “that the employer concede that the collective agreement between the parties shall contain a provision prohibiting the employer from contracting out bargaining unit work”. The employer argues that the Board does not have the authority to grant such a remedy in this case.\n\nThe union referred to the decisions in Royal Oak Mines Inc. v. Canada (Labour Relations Board), supra; and Cairns, supra, in support of its position that the Board has the authority to issue the remedial order requested. However, these decisions were issued in a completely different context. In Royal Oak Mines Inc. v. Canada (Labour Relations Board), supra, the majority of the Supreme Court, upheld the Board’s remedial order which directed the employer to make certain offers subject to binding arbitration. However, in doing so, the Supreme Court highlighted the exceptional circumstances of that case, which included a lengthy and violent labour dispute. In addition, the parties had not yet reached a collective agreement when the Board issued its decision. The Cairns, supra, matter, on the other hand, arose from a duty of fair representation complaint. This was not a case where a party to a collective agreement was asking the Board to amend a term of the freely negotiated collective agreement it had just ratified.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-32", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 62–65", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The union’s argument on this point would essentially mean that as long as the Board has the authority to impose a remedy and the union maintains its request for a remedy, these would be sufficient reasons to pursue the complaint even though the parties have already resolved the underlying labour relations dispute. The Board is not persuaded by this argument. The fact that the union is maintaining its request for a remedy cannot, in and of itself, serve to create a live controversy when the complaint has become moot.\n\nFor the above reasons, the Board finds that there is no longer a live controversy between the parties with respect to the underlying issues which led to the complaint.\n\nThat said, the Board will assess whether a labour relations purpose would be served by proceeding with the complaint despite the fact that it is moot.\n\nThe union argues that it should not be penalized for concluding a collective agreement and the employer’s alleged conduct sanctioned because the union agreed to end the work stoppage. The union states that it accepted the collective agreement and agreed to end the strike with the understanding that it would continue with its complaint before the Board. It states that it would otherwise have had to continue a lengthy strike in order to wait for the outcome of these proceedings and a meaningful remedy.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-33", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 66", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "First, the Board is very aware and sympathetic to the fact that these types of complaints can result in lengthy and protracted proceedings. Allegations of bad faith bargaining and interference in union representation are generally difficult to address quickly and on the basis of the written record. Unfair labour practice complaints can present complex questions of fact and law and often require presentation of evidence through oral testimony and evaluation of witnesses’ credibility. Although the Board attempts to schedule hearing days in the shortest time possible, scheduling issues involving multiple parties is a challenge, as was the case in the present matter.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-34", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 67", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Second, the Board understands that the union’s membership may have accepted the collective agreement on the basis of representations made during the ratification process that the complaints before the Board would be pursued. The union urges the Board to take into consideration the advice given to the membership and the conditional acceptance of the collective agreement as critical and relevant to the question of whether there is a labour relations purpose to pursue these matters and the remedy sought by the union. In the Board’s view, representations made or advice given in the parties’ respective caucuses during collective bargaining or during the ratification process are not relevant to the Board’s assessment of whether a labour relations purpose would be served by continuing with the complaint. The Board is not about to engage in a review of what was presented to the union’s membership during the ratification process. In any event, the representations that a complaint will continue, whether they influenced the outcome of the vote or not, are not binding on the Board in deciding whether to exercise its discretion to proceed with the complaint.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-35", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 68–69", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Third, the union argues that in order to obtain a meaningful remedy, the members would have had to continue their strike action for a number of months in order to wait for the outcome of these proceedings. It contends that the encouragement of free collective bargaining is not the only policy principle advanced in the Code but that this must be reconciled with the enforcement of other provisions that prohibit unlawful practices during collective bargaining to ensure sound labour relations. The union urges the Board, to continue with the proceedings and to make a determination on the merits of the complaints in order to give it and its members access to justice.\n\nAlthough the union cites the old adage of justice delayed is justice denied, in considering whether a labour relations purpose is served by continuing to inquire into these applications, the Board is careful not to engage in an exercise that would seek to punish or allocate blame on any side. As cited by the employer, the Board is reluctant to issue retroactive orders or declarations where the issue that is central to the application or complaint has become moot. The Board’s general approach in ordering remedies is to make the party affected by a violation of the Code whole and to put the affected party back in the position it would have been had there not been a breach. In deciding whether to issue a retroactive order, the Board will consider its role in promoting the constructive settlement of disputes and the labour relations purpose served by issuing such an order.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-36", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 70–71", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The framework of collective bargaining is one that is carefully crafted to support the parties’ efforts to achieve a freely negotiated collective agreement. Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa: Human Resources Development Canada, 1995) discusses the reasons why free collective bargaining is so fundamental to a stable labour relations regime: ... the parties themselves are the best architects of their situations. Therefore, through statute, we promote voluntarism, encouraging the parties to settle their own collective agreements, giving them full scope to negotiate terms and conditions of employment and allowing them to design their own dispute resolution mechanisms. We give them the opportunity and responsibility to codify their own affairs. We restrict or limit these rights as little as possible. ... Further, they recognize that the most efficient and workable collective bargaining system is one which places the greatest degree of responsibility for their actions on the parties themselves. Therefore, the purpose of labour legislation and reform must be to establish and protect the general framework for collective bargaining to allow the parties to operate. (pages 36 and 40)\n\nThe provisions of the Code as they relate to collective bargaining are designed to promote free collective bargaining and allow the economic “clout” of the respective parties to play out and for the parties to achieve the best result they can with their respective economic leverage. In this dispute, the union and the employer both exercised their economic leverage and ultimately concluded a collective agreement following 11 weeks of strike.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-37", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 72", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board will be prudent not to interfere in the results achieved through this process. Even in the most egregious of cases, the Board and the Courts have been reluctant to impose terms of a collective agreement. For example, in Royal Oak Mines Inc. v. Canada (Labour Relations Board), supra, the majority of the Supreme Court of Canada upheld the Board’s remedy, which directed the employer to make certain offers subject to binding arbitration. It did so in the following terms: ... such an extraordinary order, while justified in these circumstances, runs against the established grain of federal and provincial labour codes by overriding the cherished principle of “free collective bargaining” which animates our labour laws. ... I find that in the absence of exceptional and compelling circumstances such as those prevailing in this case, it will normally be patently unreasonable for a labour board to impose such an invasive remedial order in light of the core value of free collective bargaining enshrined in the Code. (page 379)", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-38", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 73–74", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In the circumstances before us, the union is pursuing a remedy that would see the Board impose a new term in the collective agreement, which was just recently concluded between the parties through the process of free collective bargaining. Although the union recognizes that it is seeking a remedy that may be rarely imposed, it submits that the question for the Board is whether a remedy is still available. However, the Board is of the view that the basis for the remedy sought in this case disappeared when the parties reached a new collective agreement and the return to work protocol. The Board must be cautious not to allow a party to achieve through the Board what it was not able to achieve at the bargaining table. The Board is not prepared to grant an order that would constitute a significant intrusion into the parties’ freely negotiated collective agreement in the absence of exceptional and compelling circumstances.\n\nThe Board understands the complexity of the negotiations and difficult decisions that had to be made by the union on whether to continue with the strike in evaluating its leverage at the bargaining table. However, the Board is unable to accept that there is a labour relations purpose in determining the merits of the complaints as they relate to the conduct during collective bargaining. In the circumstances of this case, where the labour relations landscape has changed and a collective agreement is ratified after 11 weeks of the union’s exercise of their right to strike, the Board’s view is that the proceeding would only result in declarations that would be punitive in nature if it were to determine that there was a violation of the Code.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-39", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 75", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "This result however, should not be interpreted to mean that the Board does not have broad authority to fashion appropriate remedies to make parties whole where circumstances warrant it. The employer forcefully argued that the Board lacks jurisdiction to grant the remedy requested by the union given the fact that a collective agreement has already been concluded. Although this question does not need to be decided in the context of this motion, section 99(2) of the Code affords broad latitude and powers to the Board to create remedies to counteract breaches and fulfill the objectives of the Code.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-40", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 76", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Fourth, the union argues that regardless of the fact that the parties have reached a collective agreement, it is necessary to address the conduct of the employer during collective bargaining in order to ensure that there is no repetition in the next round of bargaining. The circumstances that will surround the next cycle of collective bargaining for this unit are speculative and any future complaint will have to be assessed on its own merits. Nevertheless, the Board is of the view that it is the parties’ responsibility to determine how they want to approach bargaining in the future. The union’s complaint in this case raised a number of concerns regarding the employer’s conduct. The union alleged that the employer attempted to address the ramp employees’ wage issues outside the bargaining table while it insisted that these issues be dealt with during collective bargaining. Shortly after notice to bargain was given, the employer began using more than a hundred agency workers who worked alongside these same ramp employees. While this situation may have contributed to the length of the labour dispute, the parties ultimately found a common ground and achieved a freely negotiated collective agreement. In the Board’s view, pursuing the complaint at this stage may negatively impact the parties’ labour relationship going forward.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-41", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 77–78", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Finally, the Board is also cognizant of the resources that would be required from all sides in bringing these matters to conclusion. As noted in the background above, the Board has already issued three decisions in these matters to deal with an interim application and other preliminary matters. These are in addition to two decisions of the Board addressing applications for declaration of illegal strike filed by the employer at the time when the parties were facing the threat of a full and lawful work stoppage. Suffice it to say that in the course of four months, the Board has dedicated a significant amount of resources to the matters emanating from these parties’ collective bargaining relationship. At the time of hearing this motion, nine witnesses were still scheduled to testify, which would require at least five more days of hearing. Although the question of judicial economy is not determinative, it is important for the Board to allocate its limited resources in a way that is consistent with the objectives of the Code and best support its mandate.\n\nHaving carefully reviewed the arguments and case law presented by the parties, the Board has decided not to inquire further into the union’s complaint relating to the conduct of the employer during collective bargaining as it would serve no labour relations purpose at this time.", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-42", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "para 79", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In LD 3861 the Board specifically noted that the circumstances that formed the basis of the second unfair labour practice complaint emanated from the conduct of the employer during collective bargaining and the timing, manner and effect of the employer’s decision to resort to agency workers. The Board also recognized that the factual basis for the second complaint was similar to, or the same as, the set of facts supporting the first unfair labour practice complaint. In LD 3849 issued to the parties on August 24, 2017, the Board indicated as follows: The complainant asked the Board to consolidate the two complaints, to hear them together but to defer its decision on one of the prongs of the replacement worker complaint until there is clarity on the status of agency workers from the arbitration process. The employer objected to this approach and suggested that the complaints be heard sequentially. It indicates that the evidence and onus applicable to the complaint related to the use of replacement workers is different and its success would necessarily depend on the outcome of the first unfair labour practice complaint. The Board is prepared to proceed to hear the first unfair labour practice complaint (file no. 32141-C) starting on September 26, 2017. In the event that the Board dismisses the preliminary objections and decides to proceed to hear the complaint related to the use of replacement workers (file no. 32232-C), it will hear the two complaints consecutively, pursuant to section 20 of the Canada Industrial Relations Board Regulations, 2012. (page 3)", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-301063-43", + "doc_type": "caselaw", + "act_code": "2017 CIRB 863", + "act_short": "Swissport", + "act_name": "Swissport Canada Handling Inc.", + "section": "", + "citation": "Swissport Canada Handling Inc., 2017 CIRB 863", + "marginal_note": "paras 80–85", + "heading": "Unfair labour practice complaint under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "For the reasons already outlined above, the Board finds that there is no longer a live controversy regarding the conduct of the employer during collective bargaining and the timing, manner and effect of the employer’s decision to resort to agency workers. After a case management meeting with the parties in the two unfair labour practice complaints, the Board decided to hear the second unfair labour practice complaint consecutively to the first one. Given the circumstances of this case, the Board sees no labour relations reason to proceed with the second unfair labour practice complaint, the outcome of which was dependent upon the first unfair labour practice complaint.\n\nDuring the hearing on October 16, 2017, the union requested redacted versions of four Powerpoint presentations prepared by management for presentation to Swissport’s headquarters in Zurich. The employer strongly opposed the production request. The Board reserved its decision in this matter until after it determined whether there was a labour relations purpose to be served by proceeding with the complaint.\n\nGiven the Board’s decision not to proceed with the first complaint, there is no need to deal with the union’s request for production of documents.\n\nFor the reasons outlined above, the Board finds that no labour relations purpose would be served by rendering a decision in these matters and exercises its discretion not to inquire further into the merits of the two unfair labour practice complaints.\n\nAccordingly, the Board closes its files and cancels the hearing dates scheduled on December 6, 19, and 20, 2017.\n\nThis is a unanimous decision of the Board. ____________________ Ginette Brazeau Chairperson ____________________ Richard Brabander Member ____________________ Paul Moist Member", + "current_to": "2017-11-15", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/301063/index.do" + }, + { + "id": "cirb-5599-1", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "paras 1–3", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In the context of an unfair labour practice complaint filed by Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Cooney Transport Québec Inc (the Cooney Group of Companies or the employer) against Teamsters Local Union 91 (the union), the union raised allegations that the employer’s legal counsel was in a conflict of interest, and requested that the Canada Industrial Relations Board (the Board) determine whether or not counsel and/or his firm should be permitted to act for the employer in the complaint against the union.\n\nAs this is the first time, to this panel’s knowledge, that the Board has been asked to disqualify legal counsel from representing a party appearing before it, the Board requested that the parties file submissions on two issues: (a) whether the Canada Industrial Relations Board has jurisdiction to decide the question of conflict of interest; and (b) if the Board has such jurisdiction, whether it should be exercised in this case.\n\nBecause the applicant requested an oral hearing of this preliminary issue, it is necessary to point out that section 16.1 of the Code permits the Board to decide any matter without an oral hearing. The Board will normally not hold a hearing unless there are issues of credibility or other important labour relations purposes that require it to hear the parties in person. There is no requirement for the Board to give notice to the parties of its intention not to hold a hearing (see Nav Canada, 2000 CIRB LD 213, affirmed in NAV Canada v. International Brotherhood of Electrical Workers, Local 2228 (2001), 267 N.R. 125 (F.C.A., no. A-320-00). The Board is satisfied that the submissions of the parties on this preliminary issue are sufficient for the Board to decide the matter without the need for an oral hearing.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-2", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "paras 4–5", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "A bottom line decision, Cooney Transport Ltd., 2008 CIRB LD 1837, was issued on May 14, 2008, in which the Board held that it did have jurisdiction to decide questions of conflict of interest, but that it would not disqualify the employer’s counsel or its law firm, Mann & Partners LLP, from acting for the employer in the underlying unfair labour practice complaint. These are the reasons for that decision.\n\nBoth of the parties to this preliminary issue were of the opinion that the Board has jurisdiction to consider and decide the issue. Nevertheless, the Board is of the view that it is prudent to canvass the jurisprudence to satisfy itself that it does have the necessary jurisdiction to hear and determine allegations of conflict of interest on the part of counsel appearing before it.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-3", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "para 6", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Although it is not a frequent occurrence, several other Canadian labour relations boards have had occasion to consider whether they have jurisdiction to decide questions of conflict of interest on the part of counsel. In Non-Construction Affiliated Trade Unions, [2001] BCLRB No. B228/2001, the British Columbia Labour Relations Board (BCLRB) stated at paragraph 33 that it is not, nor should it be, the arbiter of legal ethics. Nevertheless, the BCLRB went on to say: ... Assuming we have jurisdiction, while there may be occasions when the Board’s desire to ensure a fair hearing may lead it in compelling circumstances to act to prevent a real mischief, we are not satisfied that the present case calls for its intervention. We are mindful of the comments of Esson, C.J.S.C. in Manville Canada Inc., supra [(1992), 88 D.L.R. (4th) 208 (BCSC)]: “Until very recently, applications to remove lawyers were so rare an event that, at least in this jurisdiction, few judges or lawyers seemed to be more than vaguely aware that such a remedy existed. Nor, so far as I am aware, was there any general feeling of discontent on the part of the public arising from the possibility of conflict. But there was and is a rising tide of discontent with the length, complexity and cost of proceedings. Since MacDonald Estate v. Martin, the application to disqualify has become a growth area as it began to do 20 or so years ago in the United States where it seems to have reached the stage of being a common feature of major litigation. No doubt some of those applications are brought to prevent a risk of real mischief.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-4", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "paras 6–7", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "But can there be any doubt that many are brought simply because an application to disqualify has become a weapon which can be used, amongst many others to discomfit the opposite party by adding to the length, cost and agony of litigation. If that becomes a regular feature of our litigation it would not likely do much to improve the professions standards in an area in which there seems to have been few serious problems. But it could do much to reduce the courts ability to get to judgment in a timely way. (at p. 224)” (page 8)\n\nIn Re Federation of the Assn. des professionnelles et des professionnels de la vidéo du Québec, [2001] C.A.P.P.R.T.D. No. 3 (QL), the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT or the Tribunal) determined that it had jurisdiction to consider an application to disqualify a party’s representative for conflict of interest, on the basis of a provision in its constituting statute, the Status of the Artist Act (SAA), which provides that “anyone appearing before the Tribunal may be represented by counsel or an agent.” (SAA, section 19(3)). The Tribunal also suggested that it had an unspecified ancillary jurisdiction to make a declaration of disqualification.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-5", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "para 8", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Until 2004, the Ontario Labour Relations Board (OLRB) consistently held that it did not have jurisdiction to remove counsel for conflict of interest: see Anna Wilson, [1990] OLRB Rep. April 481; My Cousin’s Restaurant, [1994] OLRB Rep. November 1572; 150960 Canada Inc. Const., [2002] O.L.R.D. No. 777 (QL); and Adam’s Industrial Insulations Ltd., [2003] O.L.R.D. No. 32 (QL). The view expressed in the OLRB’s decisions was that labour boards were not responsible for the enforcement of the rules of professional conduct. As administrative tribunals, labour relations boards do not have the inherent jurisdiction of the courts, and the powers that they exercise must be rooted in a statutory authority. In the OLRB’s view, it did not have the type of supervisory jurisdiction over lawyers that courts have.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-6", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "para 9", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "However, in a 2004 decision, the Ontario Superior Court of Justice held that the OLRB had erred when it concluded that it did not have jurisdiction to decide whether a solicitor had a conflict of interest. In Universal Workers’ Union, Labourers’ International Union of North America, Local 183 v. Laborers’ International Union of North America, [2004] 70 O.R. (3d) 435, Nordheimer J. stated: [19] Regarding whether a lawyer or law firm is the subject of a disqualifying conflict which ought to prevent that lawyer or law firm from appearing on a matter, the more relevant provisions in the Statutory Powers Procedure Act are ss. 23(1) and 25.0.1. Section 23(1) states: “23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” Section 25.0.1 states: “25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose, (a) make orders with respect to the procedures and practices that apply in any particular proceeding; and (b) establish rules under section 25.1” [20] In my view, these sections, either individually or collectively, give the Board authority to determine whether a lawyer or law firm representing any party is or is not in a conflict of interest and, in the former case, then allows the Board to make the appropriate order disqualifying that lawyer or law firm. In Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481, 194 D.L.R. (4th) 648 (C.A.), Mr. Justice Goudge said, at para.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-7", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "para 9", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "55: “The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel.” [21] Similarly, a tribunal has the right to prevent the abuse of its processes by virtue of s. 23(1). Permitting a lawyer or law firm to appear for a party when that lawyer or law firm is in a position of conflict of interest regarding another party is, in my view, clearly a misuse of the tribunal’s procedure and one that would be manifestly unfair to the objecting party. [22] Alternatively, it is a matter that the tribunal [can] properly address under its power to determine its own procedures and practices and to ensure compliance with them. I find support for this latter conclusion in the decision of Wilder v. Ontario Securities Commission (2000), 47 O.R. (3d) 361, 184 D.L.R. (4th) 165 (Div. Ct.) where it was argued that the Ontario Securities Commission could not take certain actions against a lawyer because it violated the Law Society of Upper Canada’s exclusive jurisdiction to regulate the professional conduct of lawyers. In rejecting that contention, Madam Justice Swinton said, at para. 20: “In proceedings such as these, the Commission is not usurping the role of the Law Society, as its objective is not to discipline the lawyer for professional misconduct; rather, its concern is to remedy a breach of its own Act which violates the public interest in fair and efficient capital markets, and to control its own processes.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-8", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "para 9", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "(Emphasis added)” [23] There is another reason for reaching the conclusion that specialized tribunals, such as the Ontario Labour Relations Board, have such authority. Fundamental to the decision as to whether a lawyer is or is not in a position of conflict is whether information in the possession of that lawyer might be used to the detriment of the objecting party. As Mr. Justice Sopinka said in MacDonald Estate v. Martin, supra, at p. 1260 S.C.R.: “Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client?” [24] The Board is in a much better position, with its specialized knowledge and expertise, to know whether the lawyer or law firm is in possession of confidential information, whether the confidential information is relevant to the issues that the Board has to determine and whether that confidential information could be used to the detriment of the objecting party. It makes more sense for the tribunal, who must make the ultimate determination of the issues on the hearing before it, to decide whether any conflict alleged against the lawyer is real or only apparent, based on the usual practices of the lawyers and law firms who appear before it. For example, in this case the Board might conclude that whatever information the lawyer and law firm either did or might have become possessed of as a consequence of acting for the objecting party in the certification hearing could not possibly prejudice the objecting party in respect of the current unfair labour practices hearing.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-9", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "paras 9–12", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The Board is in a much better position to determine whether that is the reality of the situation than the court would be. (pages 442–443)\n\nUnlike the CAPPRT, the Board does not have a statutory provision similar to section 19(3) of the SAA, which sets out who can appear before the Tribunal. Neither does this Board have recourse to a statute similar to the Ontario Statutory Powers Procedure Act, which expressly authorizes the tribunals to which it applies to make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.\n\nAlthough it is often said that the Board is the master of its own procedure, that discretion is not totally unfettered. Any exercise of the powers that the Board may have to establish its own practices and procedures must respect the principles of natural justice and administrative fairness (Robert Adams, 2001 CIRB 121, at paragraph 29).\n\nSection 16 of the Code sets out the powers of the Board in relation to proceedings before it. In particular, section 16(p) of the Code provides the Board with the power to decide, for all purposes of Part I, any question that may arise in the proceeding. Furthermore, section 21 of the Code directs the Board, inter alia, to exercise such powers as may be incidental to the attainment of the objects of Part I. In the opinion of the Board, these two provisions, individually and collectively, provide it with the requisite jurisdiction to determine questions regarding alleged conflict of interest on the part of legal counsel appearing in a proceeding before it.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-10", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "paras 13–14", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "In this regard, the Board adopts the reasoning of the Ontario Superior Court of Justice in Universal Workers’ Union, Labourers’ International Union of North America, Local 183 v. Laborers’ International Union of North America, supra, citing Wilder v. Ontario (Securities Commission) (2001), 184 D.L.R. (4th) (Ont. Div. Ct.) 165. As suggested in that decision, the Board’s objective is not to discipline counsel for any professional misconduct, but rather to control its own processes and to prevent abuse of those processes. On a practical level, the Board accepts that, because of its specialized knowledge and expertise, it is in the best position to determine whether a specific lawyer or law firm is in possession of confidential information, whether that information is relevant to the issues before the Board and whether it could be used to the detriment of the objecting party.\n\nHowever, the Board cautions parties appearing before it that it will judiciously exercise this jurisdiction, so as not to attract a multiplicity of frivolous allegations of conflict of interest that will only serve to delay and defeat the Board’s objective of resolving workplace disputes and differences expeditiously. Only in compelling circumstances, on concrete evidence and not speculative allegations, where it is shown to be necessary to ensure a fair hearing and prevent real harm to the interests of a party, will the Board exercise its jurisdiction to disqualify counsel for conflict of interest.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-11", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "paras 15–16", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "On March 4, 2008, Mr. Andrew Lister of Mann & Partners LLP, filed an unfair labour practice complaint against the union on behalf of his client, the Cooney Group of Companies, who collectively are the employers of the bargaining unit members affected by this application. Current counsel for the union, from Brazeau Seller LLP notified the Board that Mr. Lister and his firm had previously acted for the union, and in fact had advised the union with respect to labour relations disputes and collective agreement issues between the union and the employer that Mr. Lister was now representing. It was union counsel’s position that, by virtue of Mr. Lister’s present and previous relationship with the union, it would be a clear conflict of interest if he were permitted to act for the employer in the matter that was before the Board (i.e., the unfair labour practice complaint against the union).\n\nCounsel for the union also alleged that Mr. Lister’s conduct was a breach of The Law Society of Upper Canada’s Rules of Professional Conduct. While the Board has no jurisdiction to hear and decide such allegations, the content of a governing body’s rules of professional conduct can, in an appropriate case, constitute a guide to the behaviour expected of members of the profession. In this case, however, it was not necessary for the Board to consider the Rules of Professional Conduct as it has been able to determine the matter based on its own analysis.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-12", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "para 17", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "The employer denied that there was a conflict of interest on Mr. Lister’s part, and the Board sought submissions from both parties. The union continued to contend that because of Mr. Lister’s previous relationship with the union, it would be a clear conflict of interest if he were permitted to act for the employer in the unfair labour practice complaint. In support of its position, the union provided the following information and allegations: (1) Mr. Lister is a lawyer and a member of the Law Society of Upper Canada. (2) Mr. Lister was employed at Brazeau Seller LLP from 1998 to 2003, practicing predominantly labour and employment law. (3) During that period of time, Mr. Lister acted for the union extensively; for a good portion of his tenure at Brazeau Seller LLP, Mr. Lister was the union’s principal counsel. (4) As counsel to the union, Mr. Lister was involved in advising on all manner of labour relations issues, including collective bargaining, collective agreement interpretation, grievance arbitrations and Board proceedings. (5) Through his previous retainer with the union, Mr. Lister worked closely with its business agents and officers. His work included preparing them for giving evidence, withstanding cross-examination, etc. Among the business agents with whom Mr. Lister worked closely was Mr. Mike Lalonde, the current Secretary Treasurer of the union and a member of the union’s bargaining team during the collective agreement negotiations at issue in the unfair labour practice complaint. (6) Mr. Lister acted for the union on matters involving the employer, the employees of which were and still are represented by the union. (7) Mr.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-13", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "para 17", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Lister’s advice to the union with respect to the employer included advice regarding the interpretation and application of the collective agreement that was the predecessor agreement and substantially similar to the current collective agreement, the negotiation of which is the subject of the unfair labour practice complaint. (8) Mr. Lister was also involved in a number of grievances and arbitrations between the union and the employer relating to the interpretation and application of the collective agreement. Some of these cases also involved questions relating to bargaining between the union and the employer and the past practice between the two parties. (9) Mr. Lister left Brazeau Seller LLP in late 2003 to join Mann & Partners LLP. (10) Mr. Lister took with him various union files and he continued to act as counsel to the union while at Mann & Partners LLP. (11) While Mr. Lister acted for the union, the union’s president was Mr. André Papineau. (12) Mr. Papineau’s term as president of the union ended December 31, 2005, when a newly elected president, Mr. Brian MacDonald, took office. (13) Since leaving the union, Mr. Papineau has been employed as a labour relations consultant to employers, and he was retained by this employer to, in part, conduct negotiations for a renewal collective agreement with the union. (14) The employer, through Mr. Papineau, retained Mr. Lister to act as counsel in this unfair labour practice complaint. (15) The union does not consent to Mr. Lister’s continuing to act in this matter.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-14", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "para 18", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Mr. Lister denies having any confidential information within his knowledge or possession that could prejudice the union. He provided the following information: (1) He did represent the union while he was employed with Brazeau Seller LLP. (2) He left Brazeau Seller LLP in October 2003. (3) He took four ongoing files involving the union with him to Mann & Partners LLP, so that he could conclude them. His role as counsel on these files ended on January 22, 2004, January 30, 2004, May 19, 2004 and December 22, 2004 respectively and reporting letters on each matter were sent to the union. (4) Each of the four files concerned discrete matters unrelated and irrelevant to the employer’s unfair labour practice complaint against the union. (5) The matter on which he acted for the union against the employer occurred approximately eight years ago. (6) Other than the four files described above, his role as counsel for the union ended when he left Brazeau Seller LLP in October 2003. (7) His previous retainer involved a completely different union Executive Board. (8) There is no present relationship between Mr. Lister and the union in a solicitor-client capacity. (9) The unfair labour practice complaint against the union that is now before the Board arises from a ratification vote that occurred on August 2, 2007. It is a fresh and independent matter, wholly unrelated to any work that he previously did for the union.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-15", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "paras 19–20", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "According to the test set out by the Supreme Court of Canada in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, the Board must answer two questions in order to determine whether counsel should be disqualified from acting for a client on the basis of conflict of interest: 1. Did the lawyer receive confidential information attributable to a solicitor-client relationship relevant to the matter at hand? 2. Is there a risk that the confidential information will be used to the prejudice of the client?\n\nApplying this test to the facts of this situation, the Board has concluded that Mr. Lister is not in a conflict of interest with respect to the unfair labour practice complaint filed by the employer against the union. The complaint deals with a discrete set of events flowing from collective agreement negotiations that took place between the union and the employer in July and August 2007. Mr. Lister was not involved in those negotiations. His last retainer on behalf of the union with respect to this employer ended approximately eight years ago. His last retainer on behalf of the union with respect to any of its matters ended more than three years before the date on which he filed the employer’s unfair labour practice complaint. The events and allegations before the Board regarding the 2007 negotiations and subsequent ratification vote have no relation to any work that Mr. Lister did for the union during his retainer.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-16", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "paras 21–23", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "Furthermore, the union has not provided specifics or identified the nature of any confidential information that Mr. Lister actually has or could have in his knowledge or possession that could even remotely be attributable to the solicitor-client relationship, let alone any that would be relevant to an unfair labour practice complaint concerning the 2007 negotiations and the union ratification vote.\n\nThe union’s allegation that, by virtue of his previous acquaintance and work with the union’s current Secretary Treasurer and negotiator, Mike Lalonde, Mr. Lister has knowledge of the union’s affairs that could be used to the latter’s detriment also has no merit under these circumstances. The union did not suggest that Mr. Lalonde has provided any confidential information to Mr. Lister regarding the events that are in issue in the present unfair labour practice complaint, let alone any that might flow from a solicitor-client relationship between Messrs. Lister and Lalonde in his capacity as a union representative. In addition, any knowledge that might flow from such an acquaintanceship could equally be attributed to the former union president, Mr. Papineau, a non-lawyer who is now providing consulting services to the employer.\n\nThe Board has concluded that the union has provided no evidence that Mr. Lister has confidential information regarding his former client; if he has such information, there is no evidence that it is attributable to the solicitor-client relationship; and if he has any confidential information attributable to the solicitor-client relationship, there is no evidence that it is relevant to the matter that is presently before the Board. Accordingly, there is no need for the Board to apply the second branch of the MacDonald Estate v. Martin, supra, test.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, + { + "id": "cirb-5599-17", + "doc_type": "caselaw", + "act_code": "2008 CIRB 411", + "act_short": "Cooney Transport", + "act_name": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc.", + "section": "", + "citation": "Cooney Transport Ltd., Cooney Bulk Sales Ltd. and Transport Cooney Québec Inc., 2008 CIRB 411", + "marginal_note": "paras 24–25", + "heading": "Related-employer (common-employer) declaration under the Canada Labour Code", + "part": "Canada Industrial Relations Board", + "division": "", + "text": "As the union has failed to make out a case to support its allegation of conflict of interest, the Board has determined that it will not disqualify Mr. Lister or his firm, Mann & Partners LLP, from acting for the employer in the unfair labour practice complaint.\n\nThe application with respect to this preliminary issue is dismissed.", + "current_to": "2008-05-29", + "last_amended": "", + "history": "", + "source_url": "https://decisia.lexum.com/cirb-ccri/cirb-ccri/en/item/5599/index.do" + }, { "id": "irb-MB8-00025-1", "doc_type": "caselaw",