Shenouda v. Treasury Board (Department of Employment and Social Development)



Public Service Labour Relations
and Employment Board Act and
Public Service Labour Relations Act

Coat of Arms - Armoiries
  • Date:  20170222
  • File:  566-02-10793
  • Citation:  2017 PSLREB 21

Before a panel of the Public Service Labour Relations and Employment Board


BETWEEN

PHOEBE SHENOUDA

Grievor

and

TREASURY BOARD
(Department of Employment and Social Development)

Employer

Indexed as
Shenouda v. Treasury Board (Department of Employment and Social Development)


In the matter of an individual grievance referred to adjudication


Before:
John G. Jaworski, a panel of the Public Service Labour Relations and Employment Board
For the Grievor:
Herself
For the Employer:
Jenna-Dawn Shervill, counsel
Decided on the basis of written submissions,
filed October 31 and December 2 and 9, 2016.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        Phoebe Shenouda (“the grievor”) was employed in Edmonton, Alberta, as a benefits officer at the PM-02 group and level with Service Canada, a federal institution that is part of Employment and Social Development Canada (“the employer”).

2        On January 28, 2014, the grievor filed a grievance stating as follows:“I was advised on December 16, 2013 by [name omitted] that my term employment would not be renewed after March 31, 2014. I grieve the non-renewal of my term employment which I was advised would end on March 31, 2014.”

3         As relief, the grievor requested that her term employment be renewed past March 31, 2014.

4        On 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 (“the Board”) to replace the former Public Service Labour Relations Board (“the PSLRB”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 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 section 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; “the Act”) before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

5        The grievance was denied at all levels of the grievance process, the final-level response being set out in a letter dated December 24, 2014. On February 5, 2015, the grievor referred her grievance to the Board under s. 209(1)(c) of the Act. On March 18, 2015, she gave notice to the Canadian Human Rights Commission (“the CHRC”) under s. 210 of the Act that her grievance gave rise to an issue involving the interpretation or application of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; “the CHRA”), specifically that her employment was terminated on the basis of race. She stated that the corrective action she was seeking was that she be reinstated to the same position in a different department and that she be compensated.

6        The hearing of this grievance was originally scheduled for July 5 through 8, 2016, in Edmonton, Alberta. However, it was postponed and rescheduled to be heard between November 15 and 18, 2016. On October 31, 2016, the employer wrote to the Board, objecting to the Board’s jurisdiction to hear this grievance on a number of grounds that will be set out in more detail later in this decision. 

7        On November 10, 2016, I presided over a pre-hearing teleconference to address the employer’s objection to the Board’s jurisdiction in the face of the upcoming hearing dates. I determined that the most appropriate course would be to deal with the employer’s objection by way of written submissions. As such, I postponed the November 2016 hearing dates.

8        As the employer had already filed its written objection, the grievor was given until Friday December 2, 2016, to file her written submissions in response, and the employer was given until Friday, December 9, 2015, to reply to her response.

II. Summary of the evidence

9        The employer hired the grievor on March 22, 2013, for a specified period from March 28, 2013, until March 31, 2014. The offer letter of March 22, 2013, stated in part as follows:

Nothing in this letter should be construed as an indeterminate appointment, nor should you anticipate continuing employment in the public service as a result of this offer. Your services may be required for a shorter period depending upon the availability of work and the continuance of the duties to be performed.

10        By letter dated December 16, 2013, the employer advised the grievor that her specified-period employment would not be extended and that it would end at the close of business on March 31, 2014. It stated in part as follows:

This is to confirm that your specified period employment with the Department of Employment and Social Development, Service Canada Initiative, will not be extended and will end at the close of business on March 31, 2014.

In accordance with Section 58(1) of the Public Service Employment Act, you will cease to be an employee at the cessation of your period of employment.

[Emphasis in the original]

11        The grievor filed her grievance on January 28, 2014. Nowhere in it does she allege racial discrimination or a breach of the CHRA or of the no-discrimination article of the relevant collective agreement, which is between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group that expired on June 20, 2014 (“the collective agreement”). Its article 19 is entitled, “No Discrimination”.

III. Summary of the arguments

A. For the employer

1. Jurisdictional objection 1: term not renewed

12        The grievor referred her grievance to adjudication under s. 209(1)(c) of the Act, which provides the Board with jurisdiction to deal with demotions and terminations under s. 12(1)(e) of the Financial Administration Act (R.S.C. 1985, c. F-11; “the FAA”) for reasons that do not relate to a breach of discipline or misconduct.

13        The grievance states as follows:“I was advised on December 16, 2013 by Charles Maisonneuve that my term employment would not be renewed after March 31, 2014. I grieve the non-renewal of my term employment which I was advised would end on March 31, 2014.”

14        The employer’s December 16, 2013, letter to the grievor confirmed that her employment would not be renewed after March 31, 2014, and that it would end in accordance with s. 58(1) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the PSEA”).

15        The grievor was not subject to any of the measures referred to in s. 209(1)(c) of the Act; rather, this is a simple case of a term employment contract not being renewed.

16        It is well established that when a term expires, an adjudicator has no authority to inquire into why the employer did not extend it. Ikram v. Canadian Food Inspection Agency, 2012 PSLRB 4, sets out as follows the key legal principles applicable to term employment not being renewed:

a. A specified term of employment is not a guarantee of employment past the end of the date written in the letter of offer.

b. When the end of a specified term of employment arrives, an employer does not need to take any other action to end the employment; it can rely on the terms of the letter of offer which say employment ends on a date already set.

c. Because an employer does not need to take action to end a specified term of employment, the employer’s motive at the time is not relevant or helpful in giving an adjudicator jurisdiction to hear a grievance. An employer’s motive may be relevant only when the employer ends the term early.

d. When an employee’s employment ends because a specified term of employment expired, there is no dismissal or termination within the meaning of s. 209(1) of the Act.

e. If there is no dismissal or termination within the meaning of subsection 209(1) of the Act, an adjudicator has no jurisdiction to hear the merits of an employee’s grievance; an employer’s answer at the final level of the individual grievance process is the final and binding answer to the grievance.

17        The December 16, 2013, letter to the grievor indicates that the decision to not renew her term was made in accordance with the provisions of the letter of offer and the terms of s. 58 of the PSEA; it did not relate to a demotion or termination under s. 12(1)(e) of the FAA and therefore did not involve a termination or dismissal within the meaning of s. 209(1) of the Act.

18        The employer submitted that the Board has no jurisdiction to grant the grievor’s requested relief, namely, to extend her specified-term employment past March 31, 2014. Subsection 29(1) of the PSEA states as follows:

29 (1) Except as provided in this Act, the Commission has the exclusive authority to make appointments, to or from within the public service, of persons for whose appointment there is no authority in or under any other Act of Parliament.

19        While the jurisprudence (see Togola v. Treasury Board (Department of Employment and Social Development), 2014 PSLRB 1) suggests that the Board can take jurisdiction over term employment not being renewed in circumstances in which discrimination has been alleged, under ss. 209(1)(a) and 226 of the Act, this is not such a case because the Board cannot assume jurisdiction due to both the Burchill principle and because there is no freestanding jurisdiction over human rights matters. The grievor is not represented by her bargaining agent, and the Board cannot claim jurisdiction over the application or interpretation of the no-discrimination article in her collective agreement.

2. Jurisdictional objection 2: the Burchill principle

20        The employer has no particulars on possible discrimination allegations as discrimination was never raised at any stage of the grievance process. The “Individual Grievance Presentation” form does not make any reference to discrimination.

21        Based on the principle the Federal Court of Appeal set out in Burchill v. Attorney General of Canada, [1981] F.C. 109 (C.A.), the grievor was not entitled to alter her grievance to raise the issue of discrimination at adjudication.

Jurisdictional objection 3: no freestanding jurisdiction over human rights matters

22        Chamberlain v. Treasury Board (Department of Human Resources and Skills Development), 2013 PSLRB 115, held that the Board does not have freestanding jurisdiction to hear human rights complaints. As set out in s. 208(4) of the Act, agrievance arising out of the interpretation or application of a collective agreement requires the relevant bargaining agent’s approval and its agreement to provide representation.

23        The grievor does not have the support of and is not represented by her bargaining agent; as such, the Board has no jurisdiction to hear her grievance under the no-discrimination article of the collective agreement.

24        In Cavanagh v. Canada Revenue Agency, 2014 PSLRB 21, the PSLRB held that in the absence of a bargaining agent representative at adjudication, a grievance involving discrimination cannot proceed.

B. For the grievor

25        The grievor referred me to s. 64(1) of the PSEA, which states as follows:

64 (1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedule I, IV or V to the Financial Administration Act, the deputy head may, in accordance with the regulations of the Commission, lay off the employee, in which case the deputy head shall so advise the employee.

[Emphasis in the original]

26        The grievor submitted that the reason for laying her off was not a simple end of term or lack of work as set out in the PSEA but was part of a series of discriminatory acts that had occurred to her.

27        The grievor stated that during her training in 2013, the trainer assigned her a failing grade despite the fact that she did everything set out in the training manual. She stated that when she explained this to her manager, he ignored her. Although he stated that she was right, he also demeaned her and stated: “You only have three month [sic] experience, do you think you understand better than Janet [trainer]?” The grievor stated that after she had this discussion with her manager, she was put on a management action plan, which she stated she refused because she had done everything right as set out in the manual and as was the practice at her work location. She stated that when her colleagues found out, they encouraged her to complain to her bargaining agent in July of 2013.

28        She stated that on December 16, 2013, she was told that her term would end and that it would not be renewed. She stated that there was no reason to do this    three-and-a-half months early except to hurt her feelings, make her more sick, and ruin her Christmas.

29        The grievor referred me to s. 59 of the CHRA, which states as follows:

59 No person shall threaten, intimidate or discriminate against an individual because that individual has made a complaint or given evidence or assisted in any way in respect of the initiation or prosecution of a complaint or other proceeding under this Part, or because that individual proposes to do so.

30        The grievor submitted that s. 59 of the CHRA was violated because her manager discriminated against her by laying her off after she filed a complaint and after he renewed the terms of three other CR-04s. She stated that several other people from other parts of the employer were renewed or promoted to PM-02 positions.

31        The grievor submitted that: “in the decision letter they stated as a result of being overstaffed at the Service Canada Benefit Officer PM-02 level, management determined that there were insufficient funds to allow the renewal of three (3) term appointments, including your own” but it was only [name omitted] and the grievor (as the employer discriminated against us) but [second name omitted] left the department on February 21, 2014 to go on deployment with an international operation.

32        The grievor submitted that although her manager said that the department was overstaffed, a number of people left the division during fiscal year 2013-2014. And a number of people were promoted from lower levels to PM-02 positions, despite a claim that the employer did not have enough funds or were overstaffed.

33        The grievor submitted that the manager also discriminated against her by having her carry out CR-04 work after she returned from sick leave, which again violated the CHRA. In support of this breach, she referred me to s. 41.1(1) of the PSEA, which states as follows:

41.1 (1) At the end of a leave of absence from employment that is taken by an employee who is a member of the reserve force in order to take part in an operation or activity referred to in paragraphs 247.5(1)(a) to (f) of the Canada Labour Code, the deputy head shall reinstate the employee in the position that the employee occupied on the day before the day on which the leave begins.

[Emphasis in the original]

34        The grievor submitted that according to the legislation, she had the right to be heard because at the first level of the grievance process, her bargaining agent representative advised her that she would try to look for positions for her, including CR-04 positions, but she was not offered anything despite being in three PM-02 pools and having done CR-04 work.

35        The grievor submitted that she was not invited to the second- and third-level grievance hearings and that she was represented at them by her bargaining agent representative. She further submitted that in an email, her bargaining agent representative advised her that she could pursue her grievance before the Board on her own.

36        The grievor referred me to ss. 65(1) and (3) of the PSEA, which state as follows:

65 (1) Where some but not all of the employees in a part of an organization are informed by the deputy head that they will be laid off, any employee selected for lay-off may make a complaint to the Board, in the manner and within the time fixed by the Board’s regulations, that his or her selection constituted an abuse of authority.

Right to be heard

(3) A complainant, every other employee in the part of the organization referred to in subsection (1), the deputy head and the Commission — or their representatives — are entitled to be heard by the Board.

37        On the morning of December 9, 2016, which was the deadline for the employer to respond to the grievor’s submissions, the grievor forwarded additional submissions to the Board. In them, she stated that the three levels of the grievance process had not been presided over by an unbiased independent party and again that her bargaining agent representative had advised her that she could proceed with the grievance on her own to the Board and had provided her with some details on how to do it.

C. The employer’s reply

38        The employer submitted that ss. 65(1) and (3) of the PSEA address situations in which lay-offs have occurred. No lay-off has occurred as the grievor was not laid off. As such, these provisions do not apply to her.

39        Dansereau v. National Film Board, [1979] 1 F.C. 100 (C.A.), provides that not renewing a term does not constitute a lay-off.

40        The grievor also referred to s. 41.1(1) of the PSEA. The employer submitted that this section has no application to this case. In addition, the grievor is not a reservist in the Canadian Armed Forces.

41        The grievor submitted that the employer discriminated against her after she filed a complaint, which was a new allegation that the employer had not heard before and that did not fall within the scope of the grievance. The employer objected to the Board’s jurisdiction to address this new allegation based on Burchill and Cavanagh.

42        The employer declined to address the grievor’s submissions with respect to her bargaining agent representation.

IV. Reasons

43        For the reasons that follow, I am without jurisdiction, and the grievance is dismissed.

44        The Board does not have inherent jurisdiction; its jurisdiction with respect to individual grievances is limited by s. 209 of the Act. If the employer actions complained of in the individual grievance do not fall within those enumerated in s. 209, then the Board does not have jurisdiction.

45        The grievor was a term employee. Her term of employment, offered by the employer on March 22, 2013, and accepted and agreed to by her on March 22, 2013, was from March 28, 2013, to March 31, 2014. The second paragraph of the offer letter makes it clear as follows:

Nothing in this letter should be construed as an indeterminate appointment, nor should you anticipate continuing employment in the public service as a result of this offer. Your services may be required for a shorter period depending upon the availability of work and the continuance of the duties to be performed.

46        In an email sent on December 16, 2013, the grievor was reminded that her term employment, scheduled to end on March 31, 2014, would indeed end on that date, which in fact occurred.

47        The grievor referred her grievance to adjudication under s. 209(1)(c)(i) of the Act, which states 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

(c) in the case of an employee in the core public administration,

(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 … .

[Emphasis in the original]

48        For the Board to have jurisdiction under s. 209(1)(c)(i) of the Act, the employer would have had to have terminated the grievor’s employment or to have demoted her; it did neither. The parties agreed that her employment was for a specified term that ended on March 31, 2014. On that date, she ceased to be an employee. 

49        Chouinard v. Deputy Head (Department of National Defence), 2010 PSLRB 133 reviewed the legislative and jurisdictional framework with respect to specified-term employment. The jurisprudence has consistently held that an employee hired for a specified term is not terminated, demoted, or laid off if his or her employment ceases at the end of the agreed specified term, which is what happened in this case.

50        In addition, the grievance makes no mention of a termination of employment or demotion; it merely states that the grievor’s term employment was not renewed, which does not fall within s. 209(1)(c)(i) of the Act.

51        In her written submissions, the grievor referred to being “laid off”. She was not laid off as defined by the PSEA or as recognized in the jurisprudence; she was a term employee, and her work ceased at the end of the agreed-to term. In Dansereau, the Federal Court of Appeal held as follows: “An employee hired for a specific term is not laid off when this term expires, since the termination of his employment at that time is not due to lack of a work but to the terms of the contract under which the employee was hired.”

52        In her written submissions, the grievor referred to actions by certain other employees, who might or might not have been managers, trainers, or both, who she suggested acted in a discriminatory manner. Nothing in the grievance suggests discrimination of any nature. 

53        The Board does not have freestanding jurisdiction over issues of alleged human rights violations, which was addressed in Chamberlain. The adjudicator in that case reviewed the matter in detail. I agree with and accept the adjudicator’s related reasoning and findings, specifically as follows:

98      However, as an administrative tribunal with authority defined by legislation, there has to be an allegation falling within any statutory limitations that exist. This would be the “essential character” test. In this case, paragraph 209(1)(b) of the PSLRA is the limitation. There must be the basis of an allegation of “… a disciplinary action resulting in termination, demotion, suspension or financial penalty.”

99      In other words, first, the dispute must be inextricably linked to the original grievance, and the grievance must fall under subsection 209(1) of the PSLRA (Amos v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 74).

100    In my original finding, I concluded no basis of an allegation of discipline existed. Consequently, I determined I lacked jurisdiction to hear the grievance, as there was no disciplinary action as contemplated by paragraph 209(1)(b) of the PSLRA. Had I concluded there was a prima facie case of discipline, I agree my jurisdiction would have extended to include allegations of human rights violations.

122    I can say it no better than counsel for the CHRC, who stated as follows and with which I agree:

Where an employee files a grievance that included human rights allegations, but arises in a factual context that does not fall within s. 209(1), the PSLRA does not give the adjudicator jurisdiction to hear the grievance. However, this does not leave the employee without access to independent adjudication. In such circumstances, the employee may file a human rights complaint with the Commission, to be processed under the CHRA.

54        As I otherwise do not have jurisdiction over the grievance, any allegations with respect to discrimination fall outside my jurisdiction.

55        The grievor’s suggestion of discrimination would also fail based on the Burchill principle, as her original grievance makes no reference to discrimination. In addition, the discrimination she suggested occurred took place in July of 2013, long before she filed her grievance. It did not relate to her grievance but to how she perceived she was treated during her training process, which is completely different.

56        For all of the above reasons, the Board makes the following order:

V. Order

57        I am without jurisdiction.

58        The grievance is dismissed.

February 22, 2017.

John G. Jaworski,
a panel of the Public Service Labour Relations and Employment Board