Reasons for decision

Alexiss Rusnak,

applicant,

and

Global Affairs Canada,

respondent.

The panel of the Canada Industrial Relations Board (the Board) was composed of Ms. Ginette Brazeau, Chairperson, sitting alone pursuant to section 14(3) of the Canada Labour Code (the Code).

Parties’ Representatives of Record

Ms. Alexiss Rusnak, on her own behalf;

Ms. Caroline Engmann, for Global Affairs Canada.

[1] Section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this complaint without an oral hearing.

I. Nature of the Application and Background

[2] Ms. Alexiss Rusnak (the applicant) filed an application for reconsideration on September 11, 2020. Ms. Rusnak is asking the Board to reconsider the Registrar’s refusal to process a health and safety reprisal complaint she attempted to file in August 2020 under Part II (Occupational Health and Safety) of the Code.

[3] In order to fully understand the matter, it is necessary to briefly outline the events that brought this application to the Board. The Board also notes that Part II of the Code was amended on January 1, 2021, substituting the “Head” (Head of Compliance and Enforcement) for the “Minister” (Minister of Labour). Given that the facts of this case occurred before these changes took effect, the Board will refer to the terminology as it was prior to January 1, 2021.

[4] On November 5, 2019, Ms. Rusnak initiated a refusal to work in her position with Global Affairs Canada pursuant to section 128(1) of the Code. The matter was referred to the Labour Program of Employment and Social Development Canada, and an official delegated by the Minister (ministerial delegate) conducted an investigation of the work refusal.

[5] On January 22, 2020, the ministerial delegate issued a decision finding that a danger did not exist and that Ms. Rusnak therefore could not continue to refuse to work. On January 28, 2020, Ms. Rusnak filed an application to appeal that decision with the Board pursuant to section 129(7) of the Code. This application to appeal the decision of no danger has been submitted to the Board for its consideration (Board file no. 033522-C).

[6] On July 17, 2020, Global Affairs Canada wrote to Ms. Rusnak, giving her notice that her employment would end on August 17, 2020.

[7] On August 20, 2020, Ms. Rusnak attempted to file a reprisal complaint pursuant to section 133(1) of the Code alleging that Global Affairs Canada had terminated her as a reprisal for exercising her rights with respect to health and safety in the workplace, contrary to section 147 of the Code. In her complaint, Ms. Rusnak alleges that her termination was a reprisal for raising workplace violence and danger and was connected to her refusal to work and her application to appeal the decision of no danger. She also indicates that the termination letter breaches her privacy rights and misrepresents her private medical information. She also submitted a complaint to the Privacy Commissioner. She explains that the medical information referenced as the reason for termination was provided to the employer in the context of her earlier work refusal.

[8] On August 21, 2020, an Industrial Relations Officer for the Board informed Ms. Rusnak by telephone, and then the Board’s Registrar confirmed by letter, that the Board was unable to process the complaint as it falls outside its jurisdiction. The Registrar informed Ms. Rusnak that since the employer is Global Affairs Canada, a federal government department, the matter appears to fall within the purview of the Federal Public Sector Labour Relations and Employment Board (the FPSLREB). The complaint materials were returned, and no file was opened.

[9] On September 11, 2020, Ms. Rusnak filed the present application seeking reconsideration of the Registrar’s refusal to process her reprisal complaint. She raises three reasons for seeking reconsideration: the protection of her confidentiality and procedural fairness, the assurance that the two cases will be connected and that the employer will have the burden of proof, and the redundancy and potential for conflicting decisions between the Board and the FPSLREB.

[10] After consideration, the Board finds that the application for reconsideration must be dismissed. The Board’s reasons are outlined below.

II. Analysis and Decision

[11] The Board’s power to review its decisions and orders is found at section 18 of the Code. Section 18 provides that the Board may review, rescind, amend, alter or vary any order or decision made by it. This power includes the power to reconsider a decision made by a Registrar who is authorized to act on behalf of the Board.

[12] The explanation for the Registrar’s decision to refuse to process the reprisal complaint is based on specific provisions in the applicable legislation.

[13] Section 123(2) of the Code provides that Part II of the Code, which deals with occupational health and safety, “applies to the federal public administration and to persons employed in the federal public administration to the extent provided for under Part 3 of the Federal Public Sector Labour Relations Act” (the Act).

[14] Section 240 of the Act states that Part II of the Code “applies to and in respect of the public service and persons employed in it as if the public service were a federal work, undertaking or business referred to in that Part.” However, there are a few exceptions to this clause. One of these exceptions, set out in section 240(a)(ii) of the Act, is that “for the purposes of section 133 and 134 of the Canada Labour Code, Board is to be read as a reference to the Public Service Labour Relations and Employment Board.” The Federal Public Sector Labour Relations and Employment Board Act explains, at section 4(1), that the Public Service Labour Relations and Employment Board is continued under the name of the Federal Public Sector Labour Relations and Employment Board.

[15] Together, these sections of the Code and the Act divide the authority over occupational health and safety matters for persons employed in the federal public service, as follows:

• This Board has jurisdiction over applications to appeal directions issued by ministerial delegates (or now officials delegated by the Head) and decisions of no danger.

• The FPSLREB has jurisdiction over health and safety reprisal complaints filed pursuant to section 133(1) of the Code.

[16] Given all of the above, the Board does not have jurisdiction to deal with a reprisal complaint filed pursuant to section 133(1) of the Code by an employee of the federal public service. Since Ms. Rusnak was an employee of Global Affairs Canada, a federal government department, the Board has no jurisdiction over her reprisal complaint. The issue of jurisdiction is fundamental to the Board’s ability to determine the matter. Accordingly, the Registrar confirmed that the Board was unable to process the complaint for lack of jurisdiction and informed Ms. Rusnak that the matter appears to fall within the purview of the FPSLREB.

[17] Board Registrars have certain powers set out in section 3 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations), which include the power to process any matters on behalf of the Board. Under section 3 of the Regulations, a Registrar may also make binding decisions in certain uncontested applications on behalf of the Board.

[18] This section was added to the Regulations with its 2001 enactment. The authors of Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa: Human Resources Development Canada, 1995) (the Sims Report), which formed the basis upon which the 1999 amendments to the Code were founded, recommended that the Code authorize the Board to make regulations allowing the delegation of certain decision-making powers of an uncontested or quasi-administrative nature to the Board’s Registrars provided that there be a review by the Board in the event of a dispute. The Sims Report pointed out that this would allow a more expeditious handling of routine matters.

[19] The Registrar’s decision that is the subject of this application for reconsideration was a decision refusing to process a complaint. In the interest of expediency, the Registrar has the ability to make straightforward decisions on jurisdiction when it is plain and obvious from the facts presented in the complaint or application. This is an efficient use of the Board’s limited resources and provides expedient decisions for the parties. More importantly, it allows a complainant or an applicant to be made aware of the issue promptly and to file in the correct forum in a timely manner. As a safeguard, the parties can apply for reconsideration of such Registrar decisions.

[20] Ms. Rusnak raises three reasons for seeking this reconsideration. First, she indicates that her related application to appeal the decision of no danger involves a number of documents that contain sensitive and medical information. In the context of that application, she sought a confidentiality order in order to protect her private information. She is concerned that if the reprisal complaint were to go to the FPSLREB, that tribunal would not be subject to this Board’s ruling on confidentiality, effectively nullifying the request. The Board notes, however, that Ms. Rusnak has subsequently withdrawn her request for a confidentiality order in Board file no. 033522-C.

[21] Second, Ms. Rusnak points to the Board’s information circular relating to reprisal complaints and indicates that the onus is on the employer to demonstrate that any disciplinary action was not connected with the exercise of the right to refuse. Ms. Rusnak explains that requiring her to go to the FPSLREB for the reprisal complaint will sever the connection between the work refusal and the reprisal action and will effectively mean that she will be required to prove that the reprisal was directly related to her work refusal, contrary to the legal requirements.

[22] Third, Ms. Rusnak submits that having two different tribunals deal with the same facts will create redundancy and potential for conflicting decisions. She indicates that this is inefficient and results in a disruption of her access to justice and procedural fairness. Further, she points to the fact that there has not yet been an investigation of her workplace violence complaint, which could mean a third finding on the same issues. In her view, the division of the case between the two tribunals renders any mediated solution inaccessible because neither tribunal has the jurisdiction to treat all of the legal issues.

[23] The Board recognizes that the requirement to file different types of occupational health and safety matters with different entities can create difficulties and confusion, particularly for self-represented parties. However, as explained above, the reprisal complaint falls under the jurisdiction of the FPSLREB that Parliament has specifically carved out of the Board’s jurisdiction. The Board must apply the legislation as it was enacted and is simply without authority to deal with a matter that falls outside its jurisdiction. Although it might seem logical for the Board to process a complaint filed pursuant to section 133(1) when it has before it an application to appeal a decision of no danger that is based on a similar set of facts, the Board does not have the option to do so.

III. Conclusion

[24] The Board sees no error in the Registrar’s determination that the matter does not fall under the Board’s jurisdiction.

[25] For these reasons, the Board dismisses the application for reconsideration of the Registrar’s refusal to process the applicant’s complaint.

[26] The Board is seized of the application to appeal the decision of no danger (Board file no. 033522-C) and will address the matter in due course.

____________________ Ginette Brazeau Chairperson