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166-2-27880 to 27882
Shaw and Treasury Board (Revenue Canada - Customs & Excise)
Before: D. MacLean
Appearances: M. Tynes, for the Grievor; J. Climie, for the Employer
Decision rendered: December 14, 1998
Harassment - Union activities - Jurisdiction - Whether grievances under subsection 91(1) of the Public Service Staff Relations Act (PSSRA) or complaints under section 23 of the PSSRA - Whether matters referable to adjudication pursuant to subsection 92(1) of the PSSRA - the grievor, the president of the local bargaining unit, filed three grievances alleging harassment because of his union activities: the first grievance alleged that the employer was treating him differently than other employees because of his union activities; the second grievance was directed at harassment complaints filed against the grievor by two managers; the third grievance alleged that disciplinary action taken against the grievor was tantamount to harassment - the employer objected to the adjudicator's jurisdiction, on the ground that the grievances had not been filed in accordance with subsection 91(1) of the PSSRA, in that another administrative procedure for redress was provided for in or under an Act of Parliament - the employer argued that, as the first grievance alleged the employer's interference in the affairs of the union, that grievance should have been pursued as a complaint under section 23 of the PSSRA - the employer alleged that the second grievance, as it related to a complaint of personal harassment, could not be referred to adjudication pursuant to subsection 92(1) of the PSSRA - the employer alleged that, as the third grievance did not refer to a ground of discrimination enumerated in the collective agreement, it must have referred to personal harassment and be dealt with in connection with the grievor's disciplinary grievances (Board Files No. 166-2-27272 and 27273) - the grievor replied that, although all of his three grievances did not specifically mention him being harassed by reason of his union activities, this was clear from the context and their interconnection - the grievor argued that the employer had accepted his three grievances and had raised no objection to them at any step of the grievance procedure - the adjudicator found that section 23 of the PSSRA provided for another procedure for redress, under which the grievor could have filed his complaints, as the central issue of each of his grievances related to his activities on behalf of the bargaining agent or its membership - the adjudicator concluded that the grievances had not been validly filed under subsection 91(1) of the PSSRA - the adjudicator found that he had a duty to address the issue of jurisdiction, even if it had not been raised by the employer at any step of the grievance procedure - jurisdiction declined.
Cases cited: Chopra v. Canada (Treasury Board),  3 C.F. 445 (F.C., T.D.); Lawson (166-2-25530); Haslett (166-2-20737); Burchill v. Attorney General of Canada,  1 F.C. 109 (F.C.A.); Mohammed (166-2-26179); Mohammed v. Canada (Treasury Board), (Federal Court File No. T-1328-97, June 16, 1998); Rhéaume (166-2-21976 to 21979, 21151 to 21154, 22356); Boutilier v. Canada (Treasury Board), (Federal Court File No. T-1450-97, November 13, 1998); Byers v. Kosanovich,  3 F.C. 354 (F.C.A.).