MacEwan, Minns, Partington, Scott, Scrimshaw, Smith, Turner and Treasury Board (Transport Canada)

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166-2-26729 to 26735
MacEwan, Minns, Partington, Scott, Scrimshaw, Smith, Turner and Treasury Board (Transport Canada)

Before: A. Burke
Appearances: P. Barnacle, for the Grievors; H. Newman, for the Employer
Decision rendered: January 23, 1996

Jurisdiction - Bilingual air traffic control - prior to May 26, 1994, the seven grievors, who are all air traffic controllers, performed all of the duties of their positions at the Ottawa Terminal Control Unit - following May 26, 1994, the employer implemented a bilingual program at the Ottawa airport - as the grievors lacked the required proficiency in the French language, they were thereafter only allowed to perform part of the duties of an operational air traffic controller - employer offered them the following options: to take French language training and ultimately qualify as bilingual controllers, to transfer to another unit outside Ottawa or to remain in the position subject to job protection under the collective agreement - grievors submitted grievances alleging a violation by the employer of the Public Service Official Languages Exclusion Approval Orderand the Treasury Board Policy on Official Languages - employer objected to the adjudicator's jurisdiction on the ground that the grievances did not fall within section 92 of the Public Service Staff Relations Act - at adjudication, grievors attempted to raise violations of the collective agreement alleging that they were implicit in the grievances - adjudicator concluded that he lacked jurisdiction to entertain the grievances as he was satisfied that the grievors and their bargaining agent had not raised the alleged violations of the collective agreement during the grievance process, either directly or by necessary implication.

Grievances denied.

Case cited: Burchill v. Attorney General of Canada 1981 1 F.C. 109.

 In reaching his conclusion, the adjudicator stated the following at pages 7 and 8 of his decision:

 ...there then is a responsibility on the grievors and/or their representative, during the grievance process, to ensure that the employer has been apprised of the nature of the grievors' grievances and, in particular, that in their opinion the actions of the employer have violated their collective agreement. Failure to do so would cause the employer to be misled and to make it impossible for the employer to respond to and to address the problems and concerns that caused the grievances to be filed. No one can expect the employer, or indeed either party, to be able to attempt to resolve a problem if it is not aware of the concerns involved. I am satisfied that the grievors and their bargaining agent did not raise during the grievance process the alleged violations of the collective agreement, either directly or by necessary implication, on which they are now attempting to rely.

 If I, as an adjudicator, now permit the grievors to expand their grievances beyond the perimeters of their presentations that were presented during the grievance process, then I would be rendering this process meaningless. Counsel for the grievors argued that even though the collective agreement violations were not discussed during the grievance hearings within the Department, the bargaining agent assumed that they were understood by the employer. I do not question that the bargaining agent assumed that; however, they cannot expect the employer to respond to and deal with their concerns that are not outlined. To allow the grievors to now rely on a violation of their collective agreement would be a fundamental change to the nature of the grievances at the level of adjudication which is not permitted: Burchill (supra).

 While the wording of the grievances themselves would not cause me to fail to take jurisdiction, I have concluded that all three levels of the grievance hearing process did not present the employer with any collective agreement violations and therefore the grievors cannot now present them before an adjudicator appointed under the Public Service Staff Relations Act. I therefore rule that I do not have jurisdiction to hear these grievances as they do not meet the requirements of section 92 of the Act. Accordingly, these grievances are denied.