A-162-78
Jean-Paul Baril (Appellant) (Mis -en-cause)
v.
Attorney General of Canada (Respondent)
(Applicant)
and
Pierre André Lachapelle and Public Service Staff
Relations Board (Respondents) (Mis- en- cause)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, September 18 and 21, 1979.
Public Service — After dismissal of grievance at all levels
provided for in collective agreement, disciplinary dispute
regarding placing a letter on employee's record was referred to
adjudication pursuant to s. 91 of the Public Service Staff
Relations Act — Trial Division prohibited Adjudicator and
mis -en-cause Board from deciding or acting on grievance
Whether or not appellant's grievance could have been referred
to Adjudicator pursuant to s. 91 — Public Service Staff
Relations Act, R.S.C. 1970, c. P-35, s. 91 — Collective
Agreement: Postal Operations Group (non-supervisory) Inter
nal Mail Processing and Complementary Postal Services,
article 10.01.
APPEAL.
COUNSEL:
P. Lesage for appellant (mis -en-cause).
A. Côté-Pistono for respondent (applicant).
SOLICITORS:
Trudel, Nadeau, Létourneau, Lesage &
Cleary, Montreal, for appellant (mis -en-
cause).
Deputy Attorney General of Canada for
respondent (applicant).
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: This appeal is from a decision of
Marceau J. of the Trial Division [[1979] 1 F.C.
377] which, allowing an application by respondent,
prohibited the Adjudicator and the mis -en-cause
Board from deciding or otherwise acting on a
grievance filed by appellant.
Appellant is an employee of the Post Office
Department. In May 1976 he received a letter
telling him, first, that an investigation had indicat
ed that he had damaged "the ignition key of a
fork-lift truck", and second, that this letter was
being placed in his record. He submitted a griev
ance against this action by the employer, and this
grievance was dismissed at all levels provided for
by the collective agreement governing his working
conditions. Appellant then acted pursuant to sec
tion 91 of the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, and referred the matter to
adjudication. Before the Adjudicator the employer
argued that appellant's grievance was not one
which, under section 91 of the Public Service Staff
Relations Act, could be referred to adjudication,
and accordingly, that the Adjudicator was not
competent to decide it. The Adjudicator dismissed
this contention; he was preparing to hear the griev
ance when he was stopped from doing so by the
judgment of Marceau J.
The only problem that arises is whether appel
lant's grievance could have been referred to
adjudication pursuant to section 91 of the Public
Service Staff Relations Act, which reads as
follows:
91. (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 him of a
provision of a collective agreement or an arbitral award, or
(b) disciplinary action resulting in discharge, suspension or a
financial penalty,
and his grievance has not been dealt with to his satisfaction, he
may refer the grievance to adjudication.
(2) Where a grievance that may be presented by an
employee to adjudication is a grievance relating to the interpre
tation or application in respect of him of a provision of a
collective agreement or an arbitral award, the employee is not
entitled to refer the grievance to adjudication unless the bar
gaining agent for the bargaining unit to which the collective
agreement or arbitral award applies signifies in prescribed
manner
(a) its approval of the reference of the grievance to adjudica
tion; and
(b) its willingness to represent the employee in the adjudica
tion proceedings.
It is admitted that appellant's grievance does not
relate to "disciplinary action resulting in dis
charge, suspension or a financial penalty", and
that it cannot be referred to adjudication under
paragraph 91(1) (b). Appellant's argument is that
his grievance can be referred to adjudication under
paragraph 91(1)(a), because it relates to the
application of a provision of a collective agree
ment, namely article 10.01 of the collective agree
ment governing appellant's working conditions.
The text of article 10.01 is as follows:
10.01 Burden of proof
In cases of discharge and discipline the burden of proof of
just cause shall rest with the Employer. Evidence shall be
limited to the grounds stated in the discharge or discipline
notice to the employee.
According to appellant, this clause requires that
the employer should not take disciplinary action
regarding his employees without good cause. As, in
the submission of appellant, the reprimand he was
given constituted disciplinary action which was
taken without good cause, he concluded that his
grievance related to application of this clause of
the agreement.
I am not persuaded by this argument. A griev
ance relates to application of a provision of a
collective agreement when it contends that the
employer did not apply such a provision, or applied
it incorrectly. Here, appellant is not arguing that
the employer did not apply article 10.01, or
applied it incorrectly. This article only prescribes
the rules of evidence applicable in the adjudication
of grievances, and is not subject to being applied or
infringed by the employer. The text of article
10.01 assumes that the employer has a duty to
treat his employees fairly, but it does not create
such a duty. It cannot be said that the employer
who unreasonably punishes his employees is not
applying or is incorrectly applying this article of
the agreement. A grievance is not concerned with
the interpretation or application of a collective
agreement if it is related to the failure to perform
a duty which is not imposed by the agreement, but
which the latter merely assumes to exist.
For these reasons, and without making any
ruling on the other grounds given by the Trial
Judge in support of his decision, I would dismiss
the appeal with costs.
* * *
LE DAIN J. concurred.
* * *
HYDE D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.