A-473-78
Canadian Air Traffic Control Association (Appli-
cant)
v.
The Queen (Respondent)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Ottawa, January 23 and 26, 1979.
Judicial review — Public Service — Labour relations —
Grievance procedure — Interpretation by P.S.S.R.B. of collec
tive agreement concerning grievance procedure — Application
to set aside Board's decision — Public Service Staff Relations
Act, R.S.C. 1970; c. P-35, s. 98 — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28 — Collective agreement between
the Treasury Board and the Canadian Air Traffic Control
Association, January 1-December 31, 1978, articles 5.01, 5.02,
5.05, 5.06, 5.07, 5.08.
This is a section 28 application to set aside a decision of the
Public Service Staff Relations Board. The applicant made a
reference to the Board by which it sought to enforce an
obligation arising out of a collective agreement "to designate as
the Management Representative authorized to respond at Step
One of the grievance procedure, an individual other than an
employee's immediate supervisor with whom he is to attempt to
resolve complaints". The. Board decided that it was not con
trary to the collective agreement for the employer to designate
an employee's immediate supervisor as the management repre
sentative authorized to make a decision at Step One.
Held, the application is dismissed. It is implicit in the
provisions of the collective agreement that persons empowered
to make decisions at the three steps of the grievance procedure
must be different persons and that such person at each of the
second and third steps must be senior in hierarchy to the person
so empowered at the preceding step. It is not a necessary
implication from the general scheme that the immediate super
visor with whom the employee should discuss his "complaint"
in an attempt to resolve it cannot be the person authorized to
make a decision as the management representative at Step One
of the grievance procedure. It cannot be implied from the fact
that, in providing for each step of the grievance procedure that
the employee is to present his grievance to his immediate
supervisor, the collective agreement does not make express
provision for the case where the management representative is
the immediate supervisor at Step One.
APPLICATION for judicial review.
COUNSEL:
Catherine H. MacLean for applicant.
W. L. Nisbet, Q.C. for respondent.
SOLICITORS:
Nelligan/Power, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside "a decision of the Public Service Staff
Relations Board made by J. F. W. Weatherill,
Board Member and Adjudicator."
On March 29, 1978 the applicant made a refer
ence to the Board under section 98 of the Public
Service Staff Relations Act, R.S.C. 1970, c,
P-35,' in which it named Treasury Board as
"employer" and by which it sought to enforce an
obligation arising out of a collective agreement
described therein as follows:
3. "to designate as the Management Representative authorized
to respond at Step One of the grievance procedure, an individu
al other than an employee's immediate supervisor with whom
he is to attempt to resolve complaints. (article 5.05 and article
5.06)
The failure to observe or carry out such obligation
was described therein as follows:
' Section 98 reads as follows:
98. (1) Where the employer and a bargaining agent have
executed a collective agreement or are bound by an arbitral
award and
(a) the employer or the bargaining agent seeks to enforce
an obligation that is alleged to arise out of the collective
agreement or arbitral award, and
(b) the obligation, if any, is not an obligation the enforce
ment of which may be the subject of a grievance of an
employee in the bargaining unit to which the collective
agreement or arbitral award applies,
either the employer or the bargaining agent may, in the
prescribed manner, refer the matter to the Board, which shall
hear and determine whether there is an obligation as alleged
and whether, if there is, there has been a failure to observe or
to carry out the obligation.
(2) The Board shall hear and determine any matter
referred to it pursuant to subsection (1) as though the matter
were a grievance, and subsection 95(2) and sections 96
and 97 apply to the hearing and determination of that
matter.
4. a) Pursuant to article 5.05 of the collective agreement, an
employee is to attempt to resolve complaints through discus
sions with his immediate supervisor.
b) Pursuant to article 5.06 of the collective agreement, an
employee is to present grievances to his immediate supervisor
who forwards copies of grievances to the Management Repre
sentative authorized to make a decision at Step One.
c) Accordingly, the employer is obliged to designate as the
Management Representative authorized to make a decision at
that stage of the grievance procedure, an individual other than
an employee's immediate supervisor.
d) The Employer has breached that obligation by:
i) Designating, for varying periods of time, the same person
as both the Officer to handle complaints and the Manage
ment person responsible for replying at the first Step in the
grievance procedure....
ii) By proposing to the Bargaining Agent that ... Unit
Chiefs who are employees' immediate supervisors within the
meaning of article 5.05 of the collective agreement be desig
nated as Management Representatives to reply to grievances
at Step One of the grievance procedure:
The question raised by the reference arises out
of a collective agreement between the applicant
and Treasury Board in relation to the year 1978.
While reference was made to other provisions of
that agreement, those upon which the matter
must, in my view, be decided, read:
5.01 Employee complaints or grievances will be dealt with in
accordance with the procedure set forth in this Article.
5.02 Definitions
(b) Immediate Supervisor—The "immediate supervisor" is
the supervisor who has been specified by the Department to
deal with a complaint from employees in his work area, and
to receive written grievances and process them to the appro
priate step in the procedure.
(c) Management Representative—The "management repre
sentative" is the officer identified by the Employer as an
authorized representative whose decision constitutes a step in
the grievance procedure.
5.05 Procedure
Complaints—An employee who has a complaint should
attempt to resolve the same through discussion with his
immediate supervisor.
5.06 Step One
An employee may present his grievance in writing to his
immediate supervisor within the twenty-five (25) day period
referred to in 5.03 above. The immediate supervisor shall sign
the form indicating the time and date received. A receipted
copy will be returned to the employee and a copy forwarded to
the management representative authorized to make a decision
at Step One. The management representative shall give his
decision as quickly as possible and not later than fifteen (15)
days after the day on which the grievance was presented. The
decision will be in writing and a copy will be returned, through
the immediate supervisor, to the employee.
5.07 Step Two
If a decision in Step One is not acceptable to the employee,
he may, not later than ten (10) days after receipt of the
decision in Step One, or if no decision was received, not later
than fifteen (15) days after the last day on which he was
entitled to receive a decision, present the written grievance to
his immediate supervisor who will sign it indicating the time
and date received. A receipted copy will be returned to the
employee and a copy forwarded to the management representa
tive authorized to make a decision at Step Two. The manage
ment representative shall give his decision as quickly as possible
and not later than fifteen (15) days after the grievance was
presented. The decision will be in writing and the employee
copy will be returned, through the immediate supervisor, to the
employee.
5.08 Step Three
If a decision in Step Two is not acceptable to the employee,
he may, not later than ten (10) days after receipt of the
decision in Step Two, or if no decision was received, not later
than fifteen (15) days after the last day on which he was
entitled to receive a decision, present the written grievance to
his immediate supervisor who will sign it indicating the time
and the date received. A receipted copy will be returned to the
employee and a copy forwarded to the Deputy Minister or his
delegated representative authorized to make a decision at Step
Three. The Deputy Minister or his delegated representative
shall give his decision as quickly as possible and not later than
twenty (20) days after the grievance was presented. The deci
sion will be in writing and the employee copy will be returned,
through the immediate supervisor, to the employee. The deci
sion of the Deputy Minister or his delegated representative at
the final step of the grievance procedure shall be final and
binding upon the employee unless the grievance is a class of
grievance that may be referred to adjudication.
It should be noted that section 2 of the Act defines
"grievance" to mean "a complaint in writing pre
sented ... by an employee ...". [The emphasis is
mine.]
Mr. Weatherill decided, in effect, that it was not
contrary to the collective agreement for the
employer to designate an employee's immediate
supervisor as the management representative
authorized to make a decision at Step One (article
5.06). This section 28 application is to set aside
that decision.
The relevant parts of Mr. Weatherill's reasons
read as follows:
It was argued, first, that it was implicit in article 5 of the
collective agreement that there be two separate individuals to
perform the two separate functions of management representa
tive and of immediate supervisor. This requirement is said to
appear in a number of ways. One is that a comparison of
Article 5.02 (b) with article 5.02 (c) reveals that while
"immediate supervisor" means "the supervisor who has been
specified—" "management representative" means "the officer
identified—". Thus, it seems, different classes of persons are
contemplated for the two rules. It may be noted that in the
French version of the collective agreement "supérieur
immédiat" is defined as "la personne désignée—", while
"représentant de la direction" is "l'agent désigné—"
While this use of distinctive terminology may be said to
underline the difference in functions involved in the roles with
which we are concerned, I am unable to see in it any implica
tion with respect to possibility or otherwise (or even the desira
bility or otherwise) of those two roles being played by the same
individual.
Next, it was urged that a study of the roles which these
individuals are to play in the grievance procedure will reveal
the need for their being assigned to separate individuals. Thus,
in article 5.06, it is provided that a grievance may be presented
to the immediate supervisor who after signing it, is to forward it
to the management representative. The management repre
sentative is to make a decision on the grievance, and a copy
thereof is to be returned to the employee through the immedi
ate supervisor. Clearly (and it is equally clear in the French
version), two different roles are contemplated, the immediate
supervisor acting as an intermediary between the grievor and
the decision-maker. It is not, however, contradictory of the
collective agreement for these two separate roles to be filled by
the same individual. Such an arrangement would not render
any provisions of the collective agreement meaningless: the
requirements of the two separate roles must nevertheless be
met.
It was further argued that the scheme of the grievance
procedure, with its four stages (including the complaint stage)
would be materially altered if the person dealing with the
grievance at the complaint stage is also the person who deals
with it at Step One. To take away one of the steps of the
grievance procedure would be, it was argued, to completely
alter the procedure. Such is not, however, the effect of the
employer's designation of the same individual as both immedi
ate supervisor and management representative, in my view. The
grievance procedure does indeed have four stages. The first
stage is the "complaint" stage, where a matter is sought to be
resolved in discussion with the immediate supervisor. This is
certainly an important stage of the grievance procedure. It may
not (save perhaps on the express agreement of the parties) be
by-passed. The necessity for seeking to resolve a grievance by
resort to the complaint procedure appears even more clearly in
the French than in the English version of the collective agree
ment. In any event, I have no doubt as to the importance of the
complaint stage. I do not consider, however, that what the
employer has done, in designating—in some cases—the same
individual to be immediate supervisor as well as management
representative for a group of employees has this effect. Nothing
prevents a management representative from dealing properly
with a grievance at Step One, even though the same individual
may have been unable to resolve the matter when it was
presented as a complaint. By the same token, his ability to
attempt to resolve a complaint is not necessarily affected by the
fact that he may, if the matter is presented as a grievance, have
to decide it in his capacity as management representative.
Nothing prevents him, in either capacity, from complying with
the complaint and grievance procedure provisions of the collec
tive agreement, and there is no alteration of these provisions.
I agree with what was said by counsel for the employer,
namely that Article 5 of the collective agreement sets out no
restrictive criteria as to who may be appointed an immediate
supervisor or a management representative, and in particular
that nothing precludes the employer from naming as manage
ment representative the immediate supervisor of the employees
concerned.
I agree with Mr. Weatherill's conclusion and, in
general, with his reasoning. I am of opinion that it
is implicit in the provisions of the collective agree
ment that I have quoted that the persons empow
ered to make decisions at the three steps of the
"grievance" procedure (articles 5.06, 5.07 and
5.08) must be different persons and that such
person at the second and third steps must be senior
in the hierarchy to the person so empowered at the
preceding step. It is not, however, as it seems to
me, a necessary implication from the general
scheme that the immediate supervisor with whom
the employee should discuss his "complaint" in an
attempt to resolve it (article 5.05) cannot be the
person authorized to make a decision as the man
agement representative at Step One of the "griev-
ance" procedure. That requirement not having
been expressed and it not being a necessary
implication from the general scheme, I do not
think that it can be implied from the fact that, in
providing for each step of the "grievance" proce
dure that the employee is to present his grievance
to his immediate supervisor, the collective agree
ment does not make express provision for the case
where the management representative is the
immediate supervisor at Step One. The paragraph
could have provided that, in such a case, the
immediate supervisor is to retain the grievance and
in other cases he shall "forward" it to the manage
ment representative and could have provided that,
in such a case, a copy of the decision is to be
returned directly to the employee and, in other
cases, is to be "returned, through the immediate
supervisor". Such a nicety would have been more
elegant drafting but, in my view, failure to take
the possibility of the immediate supervisor being
the management representative into account in the
mechanical procedure aspect of a provision such as
article 5.06 cannot, at least in the case of a
collective agreement, give rise to a substantive
implication of such importance as the applicant
urges in this case.
In my view, for the above reasons, the section 28
application should be dismissed.
* * *
PRATTE J. concurred.
* * *
LE DAIN 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.