Ryan v. Treasury Board (Department of National Defence)

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166-2-31812 (2004 PSSRB 18)
Ryan v. Treasury Board (Department of National Defence)

Before:  I. Mackenzie
Appearances: B. Done, for the Grievor; H. Newman, for the Employer
Decision rendered:  March 16, 2004

Discrimination on the basis of union activity - Jurisdiction - Other administrative procedure for redress - Harassment and intimidation alleged - the grievor alleged that a confrontation he had had with a manager at a meeting in the workplace was a breach of the anti-discrimination article of the collective agreement - the grievor was Vice-President of his local and Acting Chief Shop Steward - he had been designated by the local to handle a file concerning the work environment in a particular section and, in this role, attended a scheduled meeting between employees and management - prior to the start of the meeting, a manager inquired as to why the grievor was there and the ensuing exchange between the two men became tense and embarrassed those present - the grievor filed his grievance the following day - the employer objected to the jurisdiction of the adjudicator to hear the grievance, arguing that the grievor should have proceeded by way of a complaint under section 23 of the Public Service Staff Relations Act (the PSSRA) - it argued that section 91 of the PSSRA allowed for the adjudication of grievances where there is no other administrative procedure under any Act of Parliament, and that section 23 provided such a procedure for dealing with discrimination on the basis of union activity - the adjudicator ruled that the legislative history of section 91 demonstrated that this provision was initially introduced to prevent duplication of proceedings under the Public Service Employment Act and the PSSRA - he concluded that the Federal Court, in several decisions, had concluded that section 91 of the PSSRA referred to "another Act of Parliament" - in a prior decision, the adjudicator had held that he did not have jurisdiction over a grievance alleging discrimination, but in doing so he was deciding on a human rights issue and all of the cases relied on by him involved administrative procedures outside of the PSSRA - also, the adjudicator did not have the benefit of the reasons of the Federal Court of Appeal in a later case - the adjudicator also held that there was no appreciable difference between a reference to adjudication and a complaint - in conclusion, he held that a purposive analysis of section 91 in the general context of the legal framework set out in the PSSRA led him to conclude that an adjudicator does have jurisdiction over a grievance alleging discrimination on the basis of union membership or activity - on the substantive issue of the allegation of breach of the collective agreement, while there was no doubt that the confrontation made the meeting participants uncomfortable, not all human interaction which becomes uncomfortable can be considered "harassment" or "intimidation" - while the actions of the manager showed a lapse in judgement, it did not amount to a breach of the collective agreement - there was no evidence that the grievor's role as a union representative was restricted or interfered with and there was no evidence that he was demeaned in the eyes of his members.

Grievance denied.

Cases cited: Chopra v. Canada (Treasury Board), [1995] 3 F.C. 445; Cooper v. Canada, [1974], 2 F.C. 407; Canada (Attorney General) v. Boutilier, [1999] 1 F.C. 459 (affirmed [2000] 3 F.C. 27 (C.A.); leave to appeal denied- [2000] S.C.C.A. No. 12); Shaw, PSSRB File Nos. 166-2-27880 to 27882 (1998) (QL)); Quan v. Canada (Treasury Board), [1990] 2 F.C. 191; sub. nom. Treasury Board v. Bodkin; Joss v. Treasury Board (Agriculture and Agri-Food Canada), 2001 PSSRB 27