Grierson-Heffernan v. Treasury Board (Canada Border Services Agency)

2013 PSLRB 30

  • Before: Augustus Richardson
  • Decision Rendered: 2013-03-25
  • Original Language: English

Subject terms:

Termination – Indeterminate status – Maternity leave – Human rights – Discrimination – Calculation of cumulative service – Retroactive effect – Remedy – Burden of proof

The grievor worked as a border services officer (BSO) under a series of fixed-term appointments – her status was conditional, as she needed to successfully complete the Border Services Officer Assessment Program – the grievor became pregnant and went on maternity leave for 88 days before returning to work and receiving further term appointments – finally, a spot opened for the grievor in the training program, but she failed and was terminated – when she was terminated, the grievor was missing 14 days of cumulative service to attain the 1095 days that she needed to obligate the Canada Border Services Agency (CBSA) to change her status to that of an indeterminate employee – had she acquired that status, the CBSA would have been required to offer her any available position for which she was qualified as an alternative to terminating her – the grievor lacked the requisite number of days because of her maternity leave – at the time of her leave, the employer’s policy stated that any break in service of longer than 60 days would not be counted – in 2008, the Canadian Human Rights Tribunal (CHRT) issued a decision based on the same policy, which held that the policy was discriminatory – the Treasury Board changed the policy to comply with the direction of the CHRT and did not seek judicial review of the decision but did not apply the decision retroactively to the grievor, as her maternity leave had occurred before the CHRT’s decision was issued – the employer objected to any reliance by the grievor on clause 38.01 (Maternity Leave Without Pay) of the collective agreement, as no express reference to that clause was made in the grievance – the adjudicator held that there was no evidence that clause 38.01 had been discussed during the grievance process and upheld the employer’s objection – the real issue in the case was whether the policy was discriminatory and, if so, whether retroactive effect could be given to the CHRT’s decision – while the CHRT’s decision was not binding, the adjudicator held that it should be considered determinative on the issue of the discriminatory nature of the policy – permitting a relitigation of the same issues by the CBSA would be an abuse of process – if he were found wrong, he found that the reasoning in the CHRT’s decision ought to be followed in this case – therefore, the policy was discriminatory, and that finding should have retroactive effect, just as it did in the CHRT decision – that was not unfair to the CBSA, but the reverse would be unfair to the grievor – the grievor was entitled to a declaration that she was an indeterminate employee and that, by failing to offer her available alternative employment, the CBSA had breached its obligations under the collective agreement – the grievor had not met her onus of establishing that she had suffered a loss, that she had mitigated her damages or that alternative positions had been available – the adjudicator held that it was not appropriate for him to make a monetary award for loss of compensation and benefits – the grievor had not established an entitlement to general damages under paragraph 53(2)(e) of the Canadian Human Rights Act (CHRA) as she had not presented evidence on that point – she had also failed to establish an entitlement to damages pursuant to subsection 53(3) of the CHRA for willful or reckless conduct on the employer’s part – the employer did not apply the policy in bad faith – as neither party chose to call evidence on what would have happened had the grievor become indeterminate, the adjudicator directed the parties to determine what would have been the grievor’s status had she become indeterminate and to implement the results of such a determination – he remained seized in the event that the parties were unable to agree on the remedy.

Grievance file 566-02-4645 withdrawn; file ordered closed.

Grievance files 566-02-4646 to 4648 allowed in part; directions given.