Bulletin 12/07

June 24, 2007
TO:  Executive Council
Alternate Regional Vice-Presidents
Local Presidents

RE :  Decision of the Federal Court of Appeal - Lillian Shneidman and A.G. of Canada

The above noted decision of the Federal Court of Appeal (Docket A-169-06) was issued on May 17, 2007 and may be referenced for further information.

Sister Shneidman was an employee of the Canada Revenue Agency and was terminated for alleged unauthorized access of taxpayer information and for the alleged disclosure of information to a third party. Sister Schneidman grieved her termination and the matter was heard at the final level of the grievance procedure and dismissed. Subsequently, the grievance was referred to adjudication.

One week prior to the adjudication hearing, the grievor’s representative raised a preliminary objection advocating that the grievor’s termination should be declared null and void as she had been deprived of union representation at the disciplinary meeting, contravening article 17 of the collective agreement in force and effect at the time. While the grievance wording did not specifically allege a violation of article 17, the adjudicator found the wording used [claiming the decision to terminate her employment was unwarranted, excessive and without just, reasonable and sufficient cause] was broad enough to give her jurisdiction to deal with the preliminary objection. Relatedly, the adjudicator found that the grievor had been deprived of union representation under article 17 and allowed the objection, declaring the termination to be void.

The employer referred the adjudicator’s decision on an application for judicial review in the Federal Court Trial Division. At the Trial Division, Simpson J. held that the Adjudicator had incorrectly taken jurisdiction over the preliminary objection and allowed the employer’s application. The PSAC, representing Sister Schneidman, pursued the matter before the Federal Court of Appeal, where the appeal was dismissed.

In finding in favour of the employer’s argument, both Courts found that an employee, when filing a grievance, must provide specification at each stage of the internal grievance process as to the exact nature of the complaint. In other words, the Courts found that while the grievance wording was sufficient to challenge the employer’s decision to terminate her employment, it was not sufficient to rely on the broad wording of the grievance to allege a collective agreement violation. In fact, the Courts suggest that if a violation of the collective agreement is to be alleged or for that matter any allegation is to be advanced, “notice” to the employer must be enunciated in the grievance wording. The Court goes on to suggest that where the grievance wording is not sufficiently clear, however, then specific submissions must be made at each stage of the internal grievance procedure as to the nature of the specific complaint.

Consequently, the Union of Taxation Employees strongly recommends that where disciplinary action is being imposed upon a member by the employer, and where a breach of article 17 (Discipline) has occurred, a grievance be filed contesting the discipline and alleging a violation of the collective agreement.

Should you wish to discuss this matter further or require further clarification, please contact the Labour relations Officer assigned to your region/local.

In Solidarity,

D. Shane O’Brien,
Senior Labour Relations Officer.