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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.
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LE DAIN J. concurred.
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HYDE D.J. concurred.
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