Jurisdiction -- No discrimination -- Subsection 91(1) of the Public Service Staff Relations Act -- grievor submitted a grievance against the actions of two superiors invoking the No discrimination provision of the collective agreement -- the grievance arose out of alleged harassment of the grievor on the basis of her race or religion -- this related to two memoranda which were circulated in the workplace and which threatened the grievor's job security -- the resulting stress made the grievor ill and caused her to utilize her sick leave credits -- as corrective action, the grievor sought a written apology, restoration of sick leave credits and a monetary award -- employer objected to the jurisdiction of an adjudicator to entertain the grievance because there was another administrative procedure for redress available within the meaning of subsection 91(1) of the Public Service Staff Relations Act under the Canadian Human Rights Act -- evidence established that employer had upheld her harassment grievance and issued a formal apology to the grievor -- however, her claim for workers' compensation had been denied by the Workers' Compensation Board of Ontario -- adjudicator concluded that, as grievance was founded solely on the No Discrimination provision and did not invoke any other provision of the collective agreement, he had no jurisdiction to entertain it as it could be the subject of a complaint to the Canadian Human Rights Commission.
Grievance denied.
Cases cited:
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Chopra v. Canada [1995] 3 F.C. 445 (F.C.T.D.). Rhéaume (166-2-21976 to 21979, 21151 to 21154 and 22356). Yarrow (166-2-25034). Sarson (166-2-25312). Rinaldi (166-2-26927 and 26928). O'Hagan et al. (166-2-26490 to 26493). Burchill v. Attorney General of Canada [1981] 1 F.C. 109; 37 N.R. 530 (F.C.A.). |
Appearances:
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Barry Done, Public Service Alliance of Canada, for the
grievor; Roger Lafrenière, Counsel, for the employer. |
¶ 1 On July 8, 1993 Joan Mohammed filed a grievance, which stated the following:
I grieve the memos of Paul Colpitts and Greg Cunningham dated 4 May, 1993 which violated article M-16 of the Collective Agreement and which have caused me to become ill. |
¶ 2 As corrective action Ms. Mohammed sought:
| (1) | Written apology from; | ||
| (a) Greg Cunningham | |||
| (b) Paul Colpitts | |||
| (c) Diane Bradley |
| (2) | Restoration of sick leave credits from 21 June, 1993 to date returned from Alopecia. |
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| (3) | Correction to PREA. |
¶ 3 Subsequently, by letter dated June 23, 1994 to the Executive Director of the Immigration and Refugee Board, Ms. Mohammed amended the corrective action by adding a fourth demand, i.e. "(4) A lump sum payment of $10,000.00 to compensate for damages."
¶ 4 By letter dated April 11, 1997 counsel for the employer advised the Board that it intends to raise an objection with respect to the adjudicability of this grievance on the following grounds:
The objection relates to the adjudicability of the grievance by following the reasoning of the Federal Court in the Chopra decision. The employer objects to the adjudicator's jurisdiction to hear the grievance since an employee is barred from grieving the subject-matter by operation of section 91 of the PSSR Act. The grievor alleged during a departmental investigation that she had been harassed on the basis of her race or religion. Those allegations were dismissed by the employer. It is submitted that the grievor had or has another "administrative procedure for redress" under federal legislation. Since only M-16 of the Master Agreement has been raised, there is no purpose in proceeding on the merits. |
¶ 5 At the outset of the hearing of this matter the representatives of both parties requested that this proceeding be confined to the jurisdiction issue. I was also advised that for the purposes of this proceeding only, the parties wished to have this hearing proceed on the basis of certain documentary material which was put before me on consent; this documentary material consists of: exhibit 1 - a Report of Findings dated May 17, 1994 prepared by Mr. P.D. Fitzmaurice in respect of certain allegations made by Ms. Joan Mohammed against Mr. Gregory Cunningham; exhibit 2 - another Report of Findings from Mr. Fitzmaurice concerning Ms. Mohammed's allegations against Mr. Paul Colpitts also dated May 17, 1994; exhibit 3 - a series of medical reports and related documents from various physicians as well as a report from a counsellor concerning Ms. Mohammed.
¶ 6 According to the above-noted material, this matter was precipitated by an e-mail dated May 4, 1993 which was written and circulated by a Mr. Greg Cunningham under the subject heading: "Rita Legghio Employment Contract". The text of this e-mail stated the following:
I have recently been advised through the "rumour mill" that RHO Clerk, Rita Liegghio's employment contract with the IRB will not be renewed. Proceeding on the assumption that this rumour is correct, I would urge, in the very strongest terms, that this decision be reconsidered. |
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I have never had the pleasure of having Rita assigned as muy (sic) clerk, but I can attest to her very excellent skills and professional work ethic, based on the following three observations: |
| 1. | With my previous clerk (I recently requested a change of clerks), the only occasions (and I emphasize ONLY occasions), when my disclosure packages were sent out within a day of submitting them, was when my previous clerk phoned in sick, and her work was given to the other clerks, namely Rita and Arlene. Rita demonstrated the productivity, professional responsibility, and competence to handle not only her own work load, but that of an additional clerk. Losing Rita will be the equivalent of losing TWO average clerks. |
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| 2. | On one occasion last fall (1992), I attended on a very complex case, with an extremely belligerent and difficult counsel, that required several full day sittings. Oral submissions were not possible given the complexity of the issues, and so I drafted written submissions. The submissions from counsel were over 50 pages. Mine were equally lengthy at over 35,000 words. |
The day before the submissions were due, I made extremely extensive corrections, including extensive additions, grammar, spelling and format. Not a single page was free of inked corrections. I approached Rita just before noon on the day the submissions were due and asked for her help to make the necessary correction on work-perfect (my previous clerk does not do typing, so asking her to make the corrections was out of the question). |
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My submissions were returned to me less than two hours later, and THERE WAS NOT A SINGLE ERROR. I spent a year working at a law firm, during which time I worked with several different secretaries. I can say with all candour, that even an experienced legal secretary would have had difficulty duplicating this professionalism. |
| 3. | Finally, I recently switched the location of my office away from a proximate location near the RHO clerks, to a new location very distant from the clerks. The sole reason for the move was because of the noise from the clerks talking, laughing, screeching, etc. It was absolutely unbelievable at times. However, on not a single occasion did I ever hear Rita's voice or laughter. Once again this indictes (sic) professionalism, courtesy, and good work ethic. |
Recently, when I spoke to my SRHO with respect to a request for a new clerk, I took the opportunity to positively comment on Rita's excellent work qualities. I even suggested that she be targetted for training upgrading so that she could be promoted to a more senior and responsible position, more in keeping with her talents. I would make the same recommendation again, without any reservation. |
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I understand that budgetary considerations, affirmative action hiring goals, and union seniority are factors that should be considered, but it is quite simply a business oxymoron that these factors should override considerations of professionalism, productivity, skills and competence. I cannot over emphasize the need for competent RHO clerks, and Rita more than adequately fills this role. |
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I would appreciate any comments. Please feel free to consult any of the other RHOs with respect to their views on the clerks. |
¶ 7 Mr. Cunningham has been a Refugee Hearing Officer (RHO) with the Toronto office of the Immigration and Refugee Board since March 1992. As noted in Exhibit 1,
| 6. | RHOs are assisted in their duties by Refugee Hearing Clerks who are not subordinate to the RHOs, but who report to a Senior Refugee Hearing Officer. An RHO has no authority over the RH Clerks other than to assign work. It is important that the RHOs and RHCs have mutual respect and sound working relationships with each other because of the interdependence of their roles. |
The e-mail was circulated to a number of persons including Senior RHOs, the Regional Director, Diane Bradley, the Assistant Regional Director, Paul Colpitts, the Deputy Chairperson, Dorothy Davey, as well as others including union officials. Mr. Colpitts drafted his own e-mail of the same date and appended it to Mr. Cunningham's e-mail; Mr. Colpitts' e-mail stated the following:
The clerk to be let go is a term and is covering for poor performing clerks. I would like to keep her and discharge the poorest performer indeterminate clerk for cause after June 1, 1993. This may well be Ron Cater although Joan Mohammed is also limited. RHO(s) who approach me as this one has are being invited to help document poor performance of the RHCs, as it is in their interest to do so. Your advice would be welcome. The term is up 30/6. |
Mr. Colpitts' e-mail was circulated to four senior Refugee Hearing Officers, as well as to the Chief of Staff Relations, Mr. Roy Moffett.
¶ 8 Ms. Mohammed, who is a visible minority of the Muslim faith and has been employed in the federal Public Service since 1978 and with the Immigration and Refugee Board since 1990, became aware of the contents of the two e-mails noted above. This correspondence caused Ms. Mohammed great consternation and stress, causing her to take extensive sick leave; in addition to submitting this grievance, Ms. Mohammed filed complaints under the Treasury Board and Departmental Harassment Policy; these complaints were in respect of both Mr. Colpitts and Mr. Cunningham and resulted in the investigation by Mr. Fitzmaurice and the submission of his reports. The allegations against these two individuals were described by Mr. Fitzmaurice as follows:
(Allegations against Greg Cunningham) |
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The complainant, Joan Mohammed, in a complaint dated December 15, 1993, alleged that the content of Greg Cunningham's E-mail of May 4, 1993, circulated to senior and junior officers, accused her of being incompetent, non-productive, non-professionally responsible, without cause. The complainant's economic livelihood and wellbeing were threatened, and her rights under Treasury Board and IRB Harassment Policy were violated. She alleged that the improper behaviour of Greg Cunningham had demeaned, belittled her and caused her personal humiliation and embarrassment with her peers and superiors. |
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The complainant further alleged that her Islamic religion, her race and colour were factors in this harassing conduct. This was based on the content of the E-mail itself and also from comments which she had heard from Greg Cunningham when discussing refugee cases involving Islamic refugees. |
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(Allegations against Paul Colpitts) |
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The complainant, Joan Mohammed, in a complaint dated December 15, 1993, alleged that the content of Paul Colpitts' memo (E-mail) of May 4, 1993, to senior and junior officers, in which he threatened her with discharge by requesting officers' input to build a case of incompetence against her on the basis of the improper and malicious memo from Greg Cunningham of May 4, 1993, was an abuse of authority and, as such, constituted harassment under the Treasury Board and IRB Harassment Policy. |
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The complainant further alleged that Mr. Colpitts, as Assistant Regional Director, failed in his responsibility to inform Mr. Cunningham of her rights as a fifteen year public servant and failed to protect her rights under the harassment policy. |
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The complainant alleged that in circulating his memo of May 4, 1993, to senior and junior staff, Mr. Colpitts had belittled, humiliated and demeaned her in front of her peers and superiors, and caused her great stress and personal suffering contrary to the harassment policy. |
¶ 9 On August 19, 1994 Ms. Mohammed received the following letter from Mr. Greg Fyffe, Executive Director of the Immigration and Refugee Board in his capacity as the third level of the grievance procedure. In this letter Mr. Fyffe stated, among other things:
In terms of the corrective action you requested, you have already received an apology from Ms. Diane Bradley with certain assurances on behalf of the Region, which were also repeated in the reply you received from Mr. Pierre Bourget. Since both were given prior to the findings that you had been the victim of harassment, I believe it is now appropriate on the basis of those findings that, in my capacity as Executive Director, I should offer you an apology on behalf of the Immigration and Refugee Board for the fact that you were found to have been harassed. |
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Listening to what you and especially your husband had to say at the grievance hearing in my office, there is no doubt that the added stress of reading what was in the e-mail contributed to your distress and caused you and your family unnecessary suffering. |
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I would therefore like to apologize formally on behalf of the Board for the actions of the two employees concerned and for the distress these actions have caused you. I will be following up personally on the reports of the outside investigator to ensure to the extent possible that such incidents do not reoccur within the Board, and that certain corrective measures are put in place. |
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In addition I have decided to reimburse you twenty-three days sick leave credits as compensation for the distress caused by the harassment. |
¶ 10 The correspondence from Ms. Mohammed's physician, Dr. M. Panturescu (Exhibit 3) indicates that following the incident in question Ms. Mohammed developed a stress related condition diagnosed as Alopecia Areata. In his letter to Mr. Fitzmaurice dated May 12, 1994 Dr. Panturescu noted that the grievor:
... has suffered significantly emotionally with resultant physical manifestation [ alopecia ]. She is standing on principle which has not been easy for her. I advise her perseverance. I feel that she has a legitimate W.C.B. claim, having suffered work-related emotional injury. ... |
¶ 11 In a letter dated September 25, 1995 to the Public Service Alliance Dr. Panturescu also observed that:
... Ms. Joan Mohammed developed severe anxiety and hair loss as a result of harassment at work. ... The symptoms were a direct result of her having seen allegations against her in the workplace. ... |
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Mrs. Mohammed did indicate to me that she felt the harassment was, at least in part, racially motivated. She indicated she had heard the author of the memo make disparaging comments about certain minority groups and that those comments were quite painful to her. ... |
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I know Mrs. Mohammed to be a person of principle with deep moral convictions. These characteristics have made her more vulnerable to the event noted above. I believe that the information she has provided me is true in every sense. She is pursuing her grievance out of a sense of principle rather than vindictiveness. |
¶ 12 The parties also noted the fact that on July 29, 1993 Ms. Mohammed filed a claim with the Workers' Compensation Board of Ontario which was denied on August 24, 1993.
¶ 13 Counsel for the employer submitted that the grievance puts at issue the interpretation and application of Article M-16 of the PSAC/Treasury Board Master Agreement, known as the No Discrimination provision. Mr. Lafrenière submitted that Exhibits 1 and 2 demonstrate that Ms. Mohammed was alleging acts of discrimination based on race, national origin or religious affiliation, which are grounds of discrimination noted in Article M-16, which in turn are a repetition of the prohibited grounds of discrimination found in the Canadian Human Rights Act.
¶ 14 Mr. Lafrenière argued that the decision of the Federal Court, Trial Division in Chopra v. Canada, [1995] 3 F.C. 445 makes it clear that subsection 91(1) of the Public Service Staff Relations Act (PSSRA) does not permit the filing of a grievance where the subject matter of the grievance concerns a complaint for which a redress is available under other federal legislation, such as the Canadian Human Rights Act. Counsel contended that Ms. Mohammed had the right of complaint and the availability of a remedy under that Act. Consequently, in accordance with the Chopra decision this precludes recourse under the PSSRA.
¶ 15 Counsel for the employer also noted that at page 454 of the decision, the Court considered the obiter conclusion of adjudicator Tarte in the Rhéaume decision (Board files 166-2-21976 to 21979, 166-2-21151 to 21154, 166-2-22356) which appeared to leave the door open for a grievance to be filed pursuant to Article M-16, notwithstanding the availability of a complaint under the Canadian Human Rights Act; this conclusion was found to be in error and was specifically rejected by the Court. The Court went on to conclude that, if redress for the complaint is available under another Act of Parliament, it is irrelevant whether the remedy that can be provided is the same. Mr. Lafrenière noted that pursuant to paragraph 53(2)(c) of the Canadian Human Rights Act a tribunal has broad powers to order compensation for the victim, including an award of damages not exceeding $5,000.00 (subsection 53(3)). Mr. Lafrenière also referred to the French version of subsection 91(1) of the PSSRA; according to Mr. Lafrenière, this version makes it even clearer that an employee would have to pursue an alternative redress first before looking to the grievance procedure for a remedy. This conclusion is strengthened by the collective agreement itself; clause M-38.02(a) is recognition by the parties that certain issues are not grievable if there are other administrative procedures available. Both the Chopra decision (supra) and this provision are simply an acknowledgment of the desirability of avoiding duplication of proceedings.
¶ 16 Counsel for the employer also submitted that the Government Employees Compensation Act also applies in this instance; under that federal legislation employees have the right to claim compensation for injury incurred following an "accident" at the workplace, "accident" being defined as including "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Counsel submitted that a recourse under this legislation was available to the grievor; while this claim has been rejected at this time, Mr. Lafrenière submitted that the adjudicator has to determine if the claim is capable of falling within this legislation. He further submitted that in this instance the cause of action is an accident as defined under that statute; any component of the claim which can be considered an accident would be outside the adjudicator's jurisdiction pursuant to subsection 91(1) of the PSSRA. Mr. Lafrenière submitted that anything in this grievance which is outside the ambit of a claim under the Government Employees Compensation Act is within the ambit of the Canadian Human Rights Act.
¶ 17 Counsel for the employer also contended that there are no allegations arising out of this grievance concerning the violation of other provisions of the collective agreement. Specifically, he noted that there were no allegations concerning a violation of Article M-22, that is the Sick Leave provision; nor was there any submission to the employer raising clause M-21.13, i.e. Leave for Other Reasons. Finally, Mr. Lafrenière noted that while the applicant in the Chopra decision of the Federal Court, Trial Division, (supra) filed an appeal, he subsequently filed a notice of discontinuance dated January 16, 1997 (Court File A-591-95). Accordingly, the decision of the Federal Court, Trial Division in Chopra stands.
¶ 18 The grievor's representative noted that the Public Service Alliance is attempting to clarify the conditions under which employees may submit grievances pursuant to Article M-16, in the face of the Chopra decision. Mr. Done argued that the Chopra decision leaves open the door to such grievances where there are factual differences between the subject grievance and the Chopra case (supra) and as well, where other provisions in a collective agreement are raised along with Article M-16. The grievor's representative contended that this case raises, among other matters, the issue of leave entitlements; Ms. Mohammed was forced to liquidate leave credits as a direct result of the employer's actions which had caused the employee to become ill and thereby also caused the employee to lose the opportunity to continue to earn monthly sick leave credits. Mr. Done argued that this case also gives rise to a pay issue in that the grievor had to go on Unemployment Insurance benefits upon exhausting her sick leave credits, thereby losing forty five percent of her normal pay.
¶ 19 Mr. Done submitted that this case is distinguishable from Chopra in that it raises the issue of bad faith and, secondly, this grievance raises questions of entitlements to sick leave and pay; unlike the Chopra case which dealt with staffing, these are matters within the purview of the collective agreement. While the grievance on its face only refers to Article M-16, there is a reference to her illness as well as an acknowledgment by Mr. Fyffe in the third level grievance reply that she was sick because of personal harassment; in addition, there are medical certificates which clearly link her illness to workplace stressors.
¶ 20 Mr. Done also argued that Article M-16 gives rise to a contractual obligation to provide an environment which is free from harassment based on a discriminatory ground. The employer here has failed to act in response to discriminatory actions, in contravention of these obligations.
¶ 21 Mr. Done also contended that by failing to grant leave under subclause 21.13(a), even though admittedly this was not requested, the employer failed in its duty to accommodate the grievor's illness which arose as a result of employment stress. Mr. Done further submitted that the Government Employees Compensation Act does not have application here since a Workers' Compensation claim can only be successful if, among other things, the accident is potentially life threatening.
¶ 22 Mr. Done submitted that the Chopra decision does not foreclose the enforcement of a grievance under Article M-16; he noted that in the Yarrow (Board file 166-2-25034) and Sarson (Board file 166-2-25312) decisions the adjudicator concluded that there was still an opportunity to address grievances arising out of Article M-16 notwithstanding the Chopra decision.
Reasons for Decision
¶ 23 This decision addresses whether the adjudicator can substantively deal with Ms. Mohammed's grievance in light of the Federal Court's interpretation of subsection 91(1) of the PSSRA in the Chopra decision. That provision states as follows:
91.(1) Where any employee feels aggrieved |
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(a) by the interpretation or application, in respect of
the employee, of (i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing 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 the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii), |
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act. |
¶ 24 The French version of this provision states:
| 91.(1) | Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé : |
a) par l'interprétation ou l'application à son égard : |
| (i) | soit d'une disposition législative, d'un règlement - administratif ou autre -, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi, (ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale; |
| b) | par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi. |
¶ 25 The collective agreement provision which is of particular relevance to this matter is Article M-16 which provides as follows:
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** M-16.01 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 origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability or membership or activity in the union. |
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** M-16.02 (a) Any level in the grievance procedure shall be waived if a person hearing the grievance is the subject of the complaint. (b) If by reason of M-16.02(a) a level in the grievance procedure is waived, no other level shall be waived except by mutual agreement. |
¶ 26 The following provisions of the TB/PSAC Master Agreement are also of some relevance to this matter:
M-22.01. An employee shall earn sick leave credits at the rate of one and one-quarter (1 1/4) days for each calendar month for which the employee receives pay for at least ten (10) days. |
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M-21.13 Leave With or Without Pay for Other Reasons |
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At its discretion, the Employer may grant: |
| (a) | leave with pay when circumstances not directly attributable to the employee prevent his or her reporting for duty. Such leave shall not be unreasonably withheld; |
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| (b) | leave with or without pay for purposes other than those specified in this Agreement. |
M-38.02 Subject to and as provided in Section 90 of the Public Service Staff 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 M-38.05 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, |
¶ 27 From the material before me it would appear that Ms. Mohammed's right of redress is grounded exclusively in Article M-16. The grievance itself refers only to that provision of the collective agreement as does the Form 14, Reference to Adjudication which was filed on behalf of the grievor by her bargaining agent. While part of the remedy which Ms. Mohammed is seeking touches on other provisions of this collective agreement, i.e. the sick leave provisions, there is no suggestion that there has been any violation per se of these provisions. I have considered the other provisions of the collective agreement which Mr. Done argues come into play in respect of this matter; I am at a loss to understand how they give rise to a right which the grievor can, or indeed did, invoke in the circumstances of her case. Mr. Done acknowledges that the grievor at no time sought special leave under clause 21.13; in the absence of such a request and hence in the absence of any denial of such a request, I do not see how this can constitute a basis for a grievance by her. Similarly, there does not appear to have been a denial of a request for sick leave; Ms. Mohammed was permitted to utilize the whole of her sick leave credits in respect of her absence from work following the incidents in question. Furthermore, the grievance does not allege that the employer had denied her an opportunity to earn sick leave credits in accordance with the collective agreement; also, the facts before me do not demonstrate that there was any loss of opportunity on the part of the grievor to earn sick leave credits. Any discussion between the grievor and the employer's representatives concerning sick leave credits appears to have been limited to a consideration of possible corrective action arising from the alleged breach of Article M-16. Similar considerations also apply in respect of Mr. Done's argument that this grievance can be subsumed under the pay provisions of the collective agreement. It should be understood that, as set out in the decision of the Federal Court of Appeal in Burchill v. Attorney General of Canada [1981] 1 F.C. 109; 37 N.R. 530 (F.C.A.) a grievor cannot refer to adjudication a new or different grievance from that which was processed through the grievance procedure.
¶ 28 Mr. Done's contention that there is evidence here of bad faith and that the adjudicator should assume jurisdiction on that basis alone, is in my view untenable. I do not believe that there is an analogy between the circumstances of this case and the decisions of adjudicators respecting so-called non-disciplinary terminations which are tainted by bad faith. In those cases (e.g. Rinaldi: Board files 166-2-26927, 166-2-26928) the adjudicator concluded that the terminations were in fact disguised disciplinary discharges and therefore within the adjudicator's jurisdiction. In other words, there was a statutory basis for the adjudicator's jurisdiction; bad faith alone cannot confer jurisdiction on an adjudicator appointed under the PSSRA.
¶ 29 Accordingly, the adjudicator's jurisdiction here rests on the application of Article M-16 which necessarily leads to a consideration of the Chopra decision. The Chopra adjudication decision (supra) arose out of a grievance respecting a collective agreement provision which is similar to Article M-16. In that case the facts giving rise to the grievance related to staffing issues; specifically, Mr. Chopra alleged that he had been repeatedly denied promotions because he was a member of a visible minority. Mr. Chopra had also filed a complaint with the Human Rights Commission on the same grounds, and arising out of the same facts. The employer objected to the adjudicator taking jurisdiction in this matter since there was another avenue of redress under federal legislation and therefore the matter was not grievable as a consequence of subsection 91(1) of the PSSRA. In concluding that the adjudicator had no jurisdiction, the undersigned adjudicator made the following observations at page 16:
It should be emphasized that what is at issue here is the meaning and application of section 91 of the Public Service Staff Relations Act. It is important to keep in mind that this decision does not determine whether Mr. Chopra is entitled to a remedy in respect of his allegations, but rather the proper forum where they may be addressed. Provided Mr. Chopra is able to prove his allegations, both a right and a remedy exist, but given the restrictions found in section 91 of the Act, and in the language of the collective agreement itself, they must be pursued elsewhere. I also wish to emphasize that my decision in this matter might well be different if the substance of the grievance related to matters which are within the ambit of the collective agreement, for example pay or leave, etc. However, in this instance it is clear from the material before me that the substance of the grievance concerns promotions and appointments, which are not matters subsumed by the collective agreement, nor can they be addressed by an adjudicator appointed under the Public Service Staff Relations Act. |
¶ 30 This decision was a subject of an application for review by the grievor to the Federal Court, Trial Division in which the Public Service Alliance of Canada joined in as an intervenor. In dismissing this application Madam Justice Simpson came to the following conclusion at page 460:
The Adjudicator was correct when he concluded that he was without jurisdiction to hear the applicant's grievance by reason of subsection 91(1). I am satisfied that the CHRA provides "redress" on the facts of this case because the CHRC has jurisdiction over the substance of the grievance and because the CHRC can offer a broader range of remedies than an adjudicator under the Master Agreement. The differences in the procedures under the CHRA and the Master Agreement in terms of parties, public interest input and control of the process do not, in my view, detract from the fact that the applicant will receive redress under the CHRA. |
¶ 31 The Court also referred to the decision in Rhéaume (supra) where the adjudicator expressed the view that section 91 of the PSSRA would not preclude a grievance under Article M-16, notwithstanding the existence of a statute such as the Canadian Human Rights Act. As Mr. Lafrenière pointed out, this view was specifically rejected by the Court as set out at pages 454 and 455:
This is the first case in which an adjudicator has been faced with a jurisdictional argument based on subsection 91(1). Traditionally, adjudicators have taken jurisdiction in cases where grievances were brought under Article 44. However, the subsection 91(1) argument was not made in those cases. In Rhéaume and Treasury Board (Revenue Canada-Customs and Excise), the adjudicator commented on subsection 91(1) in obiter dicta in his reasons. Adjudicator Y. Tarte had not heard argument on the point, but the Adjudicator's decision in this case was released after adjudicator Tarte's hearing and before his reasons so he felt compelled to mention the matter of jurisdiction. He believed that he had jurisdiction in spite of subsection 91(1). As will become apparent, I did not find his reasoning persuasive. |
¶ 32 While the applicant filed an appeal from the Court's decision this was ultimately withdrawn.
¶ 33 Needless to say, an adjudicator appointed under the PSSRA is bound by the decision of the Federal Court, Trial Division in Chopra (supra); as Board Member Albert Burke stated in O'Hagan et al. (Board files 166-2-26490 to 26493) at page 26:
Whether I agree with Justice Simpson's determination is immaterial. I am bound to follow her decision in the disposition of the matter before me. For these reasons, I hereby dismiss these grievances for lack of jurisdiction. |
¶ 34 With respect to the Sarson and Yarrow decisions (supra) in both those cases the grievances specifically raised provisions in the relevant collective agreement which were separate and apart from the No Discrimination provision; that fact was critical to the disposition of the case (see page 52 et seq. of the Yarrow decision and page 47 et seq. of the Sarson decision).
¶ 35 It is apparent from the material before me that the basis for Ms. Mohammed's grievance under Article M-16 is her contention that she was a victim of racial or religious discrimination. There is no doubt that such allegations also constitute grounds for a complaint under the CHRA, which provides both a right of redress and a remedy in respect of these matters. Therefore, in accordance with subsection 91(1) of the PSSRA I must conclude that I have no jurisdiction to deal with this reference to adjudication.
¶ 36
Cases cited:
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Chopra v. Canada [1995] 3 F.C. 445 (F.C.T.D.). Rhéaume (166-2-21976 to 21979, 21151 to 21154 and 22356). Yarrow (166-2-25034). Sarson (166-2-25312). Rinaldi (166-2-26927 and 26928). O'Hagan et al. (166-2-26490 to 26493). Burchill v. Attorney General of Canada [1981] 1 F.C. 109; 37 N.R. 530 (F.C.A.). |
QL Update: 970624
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