Public Service Alliance of Canada BC

source: Lancaster House

In a decision that establishes important new precedents, Arbitrator Owen Shime has awarded damages totaling more than $500,000 to a long-serving employee who was fired while recuperating from surgery. In a scathing 136-page decision, Arbitrator Shime found that the grievor was “an honest and diligent employee” who “at no time malingered or attempted to wrongfully obtain sick benefits” and that the employer’s conduct was “so egregious that I determine it acted in bad faith.”

• Read more at lawnewstimes.com
• Read the full text of the decision: Public Service Alliance of Canada, Local 0004 v. Greater Toronto Airports Authority

In addition to awarding the grievor damages of $50,000 a year for lost income for the period that had elapsed since her discharge, Shime awarded damages for loss of future earnings until retirement, since the employer had destroyed the relationship of trust to an extent that precluded reinstatement. In this regard, Shime broke new ground by adopting the doctrine that, in his words, there is an “obligation on the employer not to conduct itself, without reasonable and proper cause, in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.”

Shime also awarded $50,000 in damages for mental distress, as well as an equal amount in punitive damages. The total award of damages for past and future loss of income, mental distress and extended physical pain, and punitive damages amounted to more than $500,000.

Union Activity in the Workplace:  Know Your Rights

As a PSAC member you have the right to promote and build your union in the workplace. You also have the right to be kept informed on the employer’s premises during non-work time, before or after your shift and during paid or unpaid breaks and lunch periods. This is the law.

You have the right to:

Read union literature. You can also sign petitions and share information about the union’s campaigns during non-working time. Talk to co-workers about the union at work as you would any other subject – help keep everyone informed about PSAC activities.

Hand out leaflets before and after work. You can distribute materials outside or inside the workplace to connect with members. Even if the entrance is in a commercial area, you have a legal right to engage in this activity. The employer is prohibited from interfering with these lawful union activities.

Desk drops. Participate in “desk drops” at members’ work stations. You are absolutely allowed to distribute publications that reflect the union’s perspective on workplace issues, as long as the information is accurate and non-defamatory. This is a great way to invite members to information sessions, provide updates on union business and recruit new volunteers.

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The Public Service Labour Relations Act (PSLRA) allows adjudicators to interpret and apply the Canadian Human Rights Act (CHRA) and can give a damages award for pain and suffering or punitive damages, each being no more than $20,000. Public Service Labour Relations Board adjudicators did just that in two recent cases.

The 1st case involved a Canada Revenue Agency employee who was diagnosed with fibromyalgia. She filed a grievance which stated that the employer had failed to provide adequate and timely accommodation of her disability. The adjudicator allowed the grievance and ordered the employer to pay $6,000 for pain and suffering as per section 53-2(e) of the CHRA. Read the full decision at pslrb-crtfp.gc.ca.

The 2nd case involved a National Defense employee who was terminated by the employer due to his inability to attend work for medical reasons. The adjudicator allowed the grievance on two grounds. The first was that the termination was invalid because it was based on confidential information obtained during mediation. The second was that the respondent had not fulfilled its duty to accommodate the grievor. The employee was reinstated as of the date of termination. In addition, the adjudicator ordered the employer to pay $9,000 for pain and suffering and $8,000 as additional compensation (sections 228-2 of PSLRA and 53-3 of CHRA). The employer was also ordered to pay 4.32% interest on both of these monetary amounts as per section 226-1(i) of the PSLRA. Read the full decision at pslrb-crtfp.gc.ca.

updated Nov 20th with the Victoria Airport flowchart!

Grievance time lines are one of the most important elements of problem solving. If we miss the initial filing of a grievance or the transmittal of grievances between levels we shortchange one or more of our members. In order to avoid this happening we have updated and posted several grievance time line flowcharts, more will follow for other bargaining units.

• Purolator Courier grievance flowchart (pdf)
• CRA grievance flowchart (pdf)
• CFIA grievance flowchart (pdf)
• Canada Post grievance flowchart (pdf)
• YVR grievance flowchart (pdf)
• Treasury Board grievance flowchart (pdf)
• Stats Canada grievance flowchart (pdf)
• YYJ grievance flowchart (pdf)

It is an accepted principle, enshrined in law, that the “duty of fair representation” relates to representation in matters or disputes covered by the Public Service Labour Relations Act (PSLRA) or a collective agreement. Does it also cover services offered voluntarily by a union in relations to claims before workers’ compensation tribunals, disciplinary matters before professional organizations, claims relating to the Canada Pension Plan, matters before transportation tribunals, actions before courts of law etc.?

Read the following PSLRB decision and find out what an arbitrator said.

An ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

Two members of the Union of Taxation Employees, a Component of the PSAC, alleged that because the PSAC failed to invite them to the grievance hearings, keep in touch with them as to the grievance, or consult their witnesses to the grievance, the PSAC committed an unfair labour practice as described in the Public Service Labour Relations Act.  Find out what Adjudicator Paquet had to say about these circumstances by reading the decision at the PSLRB website.

� an ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

For PSAC members who are covered by the Public Service Labour Relations Act (PSLRA), you will be interested in changes made to the process for classification grievances. The PSAC is recommending that “statement of duties” and “effective date” grievances be handled through the Informal Conflict Management System (ICMS). For a complete overview of the classification grievance process please visit the national website.

On behalf of the PSAC, I would like to invite you, your staff and your activists in the field who represent on grievances to participate in our first Representation Conference tentatively scheduled for spring 2010. This letter is the start of our process to develop conference content that will speak to the needs of those who do representation on behalf of our members.

• Download the Representation Conference survey here (pdf)

The Representation Section has been evaluating the current backlog of grievances waiting to be heard at adjudication or arbitration. Looking at the recurring and often complex grievance issues the Section sees, it is clear to us that many of those involved in the handling of grievances want an opportunity to share experiences and enhance skills around the representation work that we are all doing for the benefit of our membership. For this reason, as part of the plan to deal with the backlog that was approved by the National Board of Directors in December, a commitment was made to establish a conference/symposium that will bring union representatives and activists together to deal with some of the issues that we all face representing PSAC members.

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� an ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

In February 2005 the Canada Revenue Agency (CRA) re-organized their Client Services area. Specifically, they wanted to eliminate both the “cash counters” and the “client service counters”. At the request of their Local, PSAC/UTE members working in those areas wore buttons which read “You’ll miss us when we’re gone! 2006″.

The Employer believed the wearing of this button gave the public a false image of the Agency and ordered the employee’s to remove their buttons.

Was the participation by UTE members a “lawful activity of an employee organization”?

Visit the Public Service Labour Relations Board website to read the complete decision which was issued March 20, 2009.

The Public Service Alliance of Canada is committed to ensuring that workplaces are equitable and fair. This means that we view human rights in the workplace as an essential element in our mandate to represent our members.

The duty to accommodate is an essential principle in our approach to human rights. Due to a Supreme Court of Canada decision (Meiorin, September 1999) this concept has been radically changed in a very positive way. Previously, the duty to accommodate meant the right of a group or individual to have a specific situation modified in a manner that did not change the basic elements of the situation, but did allow the group or individual to fully operate within that situation. In the workplace, reasonable accommodation involved specific legal rights and responsibilities and was a reactive response to individual or group discrimination.

Employers, and Unions, were legally required to take reasonable actions to eliminate the effects of employment practices or rules that discriminated against individuals or groups on the basis of a prohibited ground, such as race, sex, age, disability, sexual orientation and so on.

The Duty to accommodate: A PSAC guide for Local Representatives is available for download here (pdf).

The DTA is usually thought of in relation to disability, but it relates to all grounds of discrimination found under human rights legislation, including culture, religion, family status and so on. The Guide is set up as a Question and Answer document. Laws change at a rapid pace and the document will be updated from time to time.

Nominate the exceptional work that is bringing PSAC locals in BC together!

Local Development has been a successful initiative that has been with us for many years. This year, we in BC want to get even more creative with developing strong and vibrant Locals in the workplace and as a result we have created the PSAC Local Achievement Awards. We want to recognize and honor Locals who have achieved workplace victories on behalf of Sisters and Brothers in a variety of categories.

Building strong Locals, one steward at a time.

This is an initiative of the BC Stewards Network, for more information, contact Dave Jackson at the Victoria RO at (250) 950 1050 | 1 (866) 953 1050 | email jacksod@psac.com and download the …

• Local Achievement Awards poster
• Local Achievement Awards background information
• Local Achievement Awards nomination form

A nomination form is available, to be used by Locals and/or members to nominate a Local whose victory at the Local level deserves recognition. Watch for more information coming soon in the mail.

Using the 7 W’s. Once the steward identifies what the problem is, they will begin to gather the facts. What kinds of questions will assist them in that process? The following list provides a number of examples to assist you in the fact gathering exercise.

Who

• who are the grievors (and contact information)
• who are the protagonists
• who caused/contributed to the problem
• who are the supervisors/managers
• who are the witnesses
• who will provide signed statements, testify
• who did the grievor tell
• who else has this problem, now or in the past
• who will be affected by the outcome
• who has information you need
• who will investigate
• who will provide representation
• who will set up the hearing
• who will be at the hearing
• who will help the grievor
• who will hurt the grievor
• who do you need to consult with
• who can you get advice from
• who will provide representation at next levels

(more…)

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards- read more of them in the Steward’s Network section of the site.

“Do I have to advise my employer of the nature of my illness?”

“Can the employer force me to provide a doctor’s certificate or demand that I undergo a medical examination?”

The following document provides you with some well established principles in these and other related areas. From a current examination of the case law on sick leave, medical certificates and medical examinations, the following principles will serve as a guide.

We should begin with the basic premise that the employer has the right to insist on a medical certificate as a condition of granting sick leave. In the case of most collective agreements, the employer’s right to impose such a requirement is explicit. Where a collective agreement is silent on this point, the employer could successfully argue that its residual management rights (i.e., all rights not modified by collective agreement language) permit it to require proof of sickness. If a collective agreement specifies (as some do), that the employer could only require a medical certificate after so many days of absence in a given year, then the employer’s right would be restricted.

Continue reading in the Sick Leave, Medical Certificates, Medical Exams and Related Issues – Some Principles handout (pdf), prepared by the PSAC Education Section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards – read more of them in the Steward’s Network section of the site.

Do you have any rights when your employer tells you that you are to be present at some type of disciplinary meeting? Read the following resource document and see what the established principles are regarding this issue.

Collective agreement language describing rights to union representation in matters of discipline varies in its strength and scope. Most collective agreements covering PSAC members contain a provision providing an employee with the right to union representation at the time s/he is interviewed regarding allegations of misconduct, or alternatively, at the time discipline is imposed. Some agreements oblige the employer to remind the employee of his/her rights to representation. Or, an employer may be required to notify both the union and the employee in advance of the meeting, and to indicate its purpose. The employer may be required to furnish grounds to an employee prior to imposing a disciplinary measure. Other language refers to time limits for placing items of a disciplinary nature on an employe’s file, and notifying the employee of whether or not the file will be used at the meeting.

The scope of representational rights is found in the precise wording of the collective agreement.

Read more in the Discipline – Rights to Union Representation (pdf) document, prepared by the PSAC education section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards … read more in the Steward’s Network section of the site.

Operational Requirements

1. Operational requirements must be based on the work itself to be performed, not on administrative or economic criteria.
2. Consideration of overtime costs are not proper concerns in determining whether or not operational requirements exist.
3. Operational requirements are a question of fact to be determined in each case.
4. The initial onus rests with the grievor to demonstrate that operational requirements were not a valid reason on the part of the employer to deny a benefit of the collective agreement (e.g., leave). Once that burden is discharged, the onus of demonstrating that operational requirements were valid reasons for denying the benefit will then rest with the employer. Of the two burdens, the employer’s burden is more onerous. The reasons are twofold:
   • Knowledge of operating requirements is in the hands of the employer. More importantly, the employer has undertaken an obligation, the release from which is contemplated only in special circumstances. To not impose the onus on the employer to establish the exceptions to the right granted under the relevant provision in the collective agreement could undermine its intent.
5. It has been held that the employer must consider the real alternatives available regarding the use of other staff. That said, the employer’s refusal to consider the use of other staff does not necessarily mean that denial of leave is unreasonable.
6. The employer must organize its operations and the service so that employees can exercise their rights under the collective agreement. The employer cannot hide behind staff shortages and operational demands such as training. These are not acceptable excuses to relieve the employer of its obligations.
7. There may be unusual operational requirements of a temporary nature when an employer may block out periods of time in which leave will not be granted because of anticipated needs (e.g. new plants, increase in cross-border traffic).
   When the employer plans the operations and clearly knows its operational requirements, it has been held that the employer can rightly refuse a request for, for example, compensatory leave.

Download the “Operational Requirements: Some Principles” handout (pdf), developed by the PSAC education section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards … read more in the Steward’s Network section of the site.

Acting Pay: Some Principles

With the elimination of positions and staff cuts, employees may find themselves assigned additional duties. With financial constraints, managers may be under increased pressure to stay within existing budgets or cut costs. As employers meet their employment equity obligations, employees may receive a variety of developmental opportunities. In these kinds of circumstances, employees may be entitled to acting pay.

The conditions under which entitlement to acting pay exists are determined by collective bargaining. The following is from the collective agreement between PSAC and Treasury Board for the Program and Administrative Services Group (expiry date of 20 June 2007):

64.07

(a) When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least three (3) consecutive working days or shifts, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts.

(b) When a day designated as a paid holiday occurs during the qualifying period, the holiday shall be considered as a day worked for purposes of the qualifying period. When interpreting collective agreement language, it is important to break down the provision by conditions and obligations. Then, it is easier to separate what the provision does say, from what it does not say.

For the entitlement to acting pay to take effect, there are 3 conditions to be satisfied ….

Continue reading in the “Acting Pay: Some Principles” handout (pdf), developed by the PSAC education section.

Another in a continuing series of articles & handouts that will be of interest to PSAC stewards …

Discipline – Mitigating Factors

Mitigating factors are considered in determining an appropriate disciplinary penalty. They may be taken into account by an employer at the time a disciplinary measure is being decided. Or, they may be raised by the union during representation.

In cases of discipline, representation is usually concerned with two areas. The first concerns whether or not the wrongdoing occurred as alleged, or whether or not the employer can prove that some measure of discipline is warranted. Sometimes, the union may concede that an employee’s misconduct constitutes grounds for some form of discipline. The second area relates to the penalty and its appropriateness in the circumstances.

There may be factors that warrant reducing a disciplinary penalty. These are called ‘mitigating factors’. The burden of proof in disciplinary cases rests with the employer but the responsibility for raising mitigating factors lies with the union. The burden of proving mitigating factors also rests with the union. However, the onus is on the employer to rebut or explain why such factors should not affect the penalty imposed.

Arbitrators weigh the presence, or absence, of mitigating factors in deciding whether to uphold, reduce or rescind a disciplinary sanction. If an arbitrator does not receive evidence from the union, s/he has no basis on which to substitute a lesser penalty. Though by no means exhaustive or comprehensive, the following will provide stewards with a basic list of mitigating factors.

Continue reading in the ‘Discipline – Mitigating Factors’ handout (pdf), prepared by the PSAC education section.

… an ongoing series of articles and information of interest to PSAC stewards. See more at the stewards network pages.

PSAC members covered under the National Joint Council directives (TB, CFIA and CRA) will find the following adjudication decision of some importance. The PIPSC decision interprets the expression sole caregiver as defined in the NJC Travel Directive.

TRAVEL ALLOWANCE – EXPENSE ALLOWANCE

Travel Directive “Reimbursement of dependant-care expenses” Whether the grievor was the ’sole caregiver’ at the time of travel

The grievor incurred expenses for the care of his two sons while he was on business travel – at that time, his wife was also on business travel – his wife was not employed in the public service� the employer denied the grievor’s claim for reimbursement of dependant-care expenses … the adjudicator found that, in the circumstances, the grievor was the sole caregiver of his sons at the time of travel and that he was entitled to be reimbursed for the dependant-care expenses that he incurred as a result of travelling on business.

Grievance allowed.

Read the full decision at the PSLRB website.

Another in an ongoing series of handouts, news and information that will be of interest to PSAC stewards …

Special Leave With Pay – Snowstorms/Inclement Weather
Most collective agreements covering PSAC members contain a provision similar, if not identical, to the following:

At its discretion, the employer may grant:

(a) leave with pay when circumstances not directly attributable to the employee prevent his or her reporting for duty; such leave shall not be unreasonably withheld;

The following principles outline what we have learned from arbitrators’ decisions on the many grievances on denial of ’special leave’. While the above provision can also apply to a variety of other circumstances that prevent an employee’s reporting for work, the following references apply to snow storms and other weather-related conditions. The references represent a sample of arbitrators’ decisions.

1. The main thrust of the provision is to provide for the exceptional treatment of particular employees under certain kinds of circumstances. This is why one speaks of ’special leave’. Ultimately, each case must turn on its own particular facts.

2. The first issue to be decided is whether the circumstances preventing the employee from reporting for duty were or were not directly attributable to the employee. The conclusion must be arrived at reasonably on the basis of the information obtained after a due and diligent enquiry by the employer.

Read more, in the ‘Special Leave With Pay – Snowstorms/Inclement weather‘ handout (pdf), prepared by the PSAC Education Section. Visit the Steward’s Network pages at the Regional Website.

Another in an ongoing series of handouts, news and information that will be of interest to PSAC stewards …

Unfair labour practices interfere with workers’ rights to join and participate in the union, or in the union’s right to represent its members. Unfair labour practices target union representatives or union members for discriminatory treatment because they exercise their union rights. Federal, provincial and territorial labour laws describe unfair labour practices as prohibited conduct, and provide a complaint mechanism to have the matter reviewed. If the labour board agrees that the conduct has violated the law, it can intervene and order that the practice stop.

Before the first labour laws were enacted in Canada, workers had exercised their rights to strike, form unions and bargain collectively before it became ‘legal’ to do so. When these fundamental rights found their place in the early labour laws, they came with protections. Legislators early on decided that legislative provisions were needed to prohibit an employer from abusing its power to circumvent or undermine these rights. Without the protections, it was thought that employers could basically buy the type of union or union representative that served their needs, or use coercion and intimidation to prevent workers from joining or participating in the union or otherwise exercising their rights. These first ‘unfair labour practice’ provisions were the precursors of our modern versions. Today, in every jurisdiction, each labour code outlines in detail those ‘unfair labour practices’ prohibited under the statute.

The law provides a framework to protect union representatives and the members they represent from these illegal practices. Over time, there have been many labour board decisions that have sent a strong message to employers that these rights must be observed and taken seriously. By the same token, an equally strong message has been conveyed to unions that only serious allegations should be brought as unfair labour practice complaints. Therefore, to protect and promote the effectiveness of the union at the workplace, we need to consider the unfair labour practice complaint as but one option among a variety of tools and strategies.

Read more, including some tips for union representatives, in the ‘unfair labour practices’ handout (pdf), prepared by the PSAC Education Section. Visit the Steward’s Network pages at the Regional Website.