Complaints Under Section 133 of the Canada Labour Code

Introduction

The purpose of this guide is to provide parties representing themselves in Canada Labour Code (the Code) proceedings with information on the process for hearings before the Federal Public Sector Labour Relations and Employment Board (the FPSLREB). This guide is only an informal tool, which should be used in conjunction with Part 3 of the Federal Public Sector Labour Relations Act (FPSLRA) and Part II of the Code. These Acts can be accessed on the Department of Justice’s Web site at http://laws.justice.gc.ca, or on the FPSLREB's Web site at fpslreb-crtespf.gc.ca, under Legislation and Forms.

General information

What is the FPSLREB?

The FPSLREB is an independent quasi-judicial tribunal responsible for administering the complaint system under the Code within the federal public service. Its commitment to resolve labour relations issues in an impartial manner benefits Canadians through the smooth delivery of government programs and services.

Who chairs the hearings?

Hearings relating to complaints are heard by the FPSLREB, sitting in a panel of one or more members.

Filing a complaint

What types of complaints can I file before the FPSLREB?

The FPSLREB will inquire into complaints made pursuant to section 133 of the Code (OCCUPATIONAL HEALTH AND SAFETY).

More specifically, section 133 of the Code requires the FPSLREB to inquire into complaints where it is alleged that the employer has taken a measure described in section 147 of the Code, which are measures:

  • against an employee’s participation in a proceeding engaged under Part II of the Code or;
  • against an employee’s action in accordance or in furtherance of Part II of the Code.

Can I represent myself?

Employees wishing to file a complaint before the FPSLREB under section 133 of the Code may represent themselves without help from a bargaining agent or lawyer.

How do I file a complaint before the FPSLREB?

Employees wishing to file a complaint under section 133 of the Code must submit a written complaint to the FPSLREB, outlining the measures described in section 147 of the Code that the employer has taken against them.

Form 26 is available for filing a complaint before the FPSLREB under Part II of the Code. It is available on the FPSLREB’s Web site at:

http://fpslreb-crtespf.gc.ca/forms/pslra/form26.pdf

The written complaint should include (1) the name, address, and phone and fax numbers of the complainant, (2) the name and address of the respondent, (3) a short summary of the measures taken by the employer that resulted in the complaint, specifying dates and the names of the persons in question, (4) the steps taken by the complainant or on his/her behalf to rectify the situation, (5) the corrective action or order requested under article 134 of the Code and, (6) other matters relevant to the complaint.

What happens after a complaint has been filed with the FPSLREB?

Opening the file

When the FPSLREB receives a complaint, a letter is sent to each of the parties acknowledging receipt of the complaint and advising the respondent of its opportunity to reply. The acknowledgement letter also provides the parties with information required for continuing the process, such as the FPSLREB’s file number, and instructions on the next step. It is important that the FPSLREB’s file number be used on all subsequent documents and correspondence.

Based on the persons named in the complaint, the FPSLREB will create a list of parties, intervenors and other persons who may be affected by the proceeding (the “Board’s list”). The FPSLREB will send copies of the complaint to the persons whose names appear on this list. The FPSLREB will also send to everybody on that list a copy of the Board’s list.

  • Please note that any document submitted subsequently to the complaint shall be filed with the FPSLREB. The party filing a subsequent document (except for Applications for a summons) shall provide a copy to every person whose name appears on the Board’s list, unless he or she has notified the FPSLREB in writing that he or she does not wish to receive a copy of subsequent documents.

Mediation

Every complaint is automatically referred to mediation; however, mediation remains voluntary. If a party declines mediation in writing, or if the conflict cannot be resolved through this approach, the Chairperson may refer the dispute to a formal hearing.

A party has 15 calendar days to notify in writing the FPSLREB of its intention not to participate in mediation. A party’s notice of intention is a subsequent document and must be copied to every person whose name appears on the Board’s list.

Even if the parties refuse mediation at the outset, they may at any point request that the matter be referred to mediation. If the parties jointly file with the Executive Director a request to have the conflict referred to mediation, the complaint will in most cases be immediately put in abeyance and a mediation date scheduled.

Preparing for the hearing

Introduction

As a rule, the process for a hearing before the FPSLREB is the same as that before a court, though somewhat less formal. The parties may file supporting documents as evidence and examine and cross-examine witnesses. Hearings give them an opportunity to present their arguments in order to establish their allegations.

Scheduling the hearing

The FPSLREB usually tentatively schedules hearing dates four months in advance. The parties will be contacted to confirm their availability.

Notice of hearing

When the Chairperson refers a complaint to a hearing, a notice of hearing is sent to each person whose name appears on the Board’s list, informing him or her of the date, time and place where the hearing will be held. A notice of hearing will normally be sent out one month prior to the hearing date.

Deferral and withdrawal

A hearing, for exceptional circumstances, may be postponed if either or both parties believe that they are unable to attend. In such a case, a postponement must be requested in writing with the FPSLREB, and the reasoning for the request must be provided. The requesting party must send a copy of the request to all persons whose names appear on the Board’s list. Only in exceptional circumstances (e.g. a serious injury on the morning of the hearing) can the request be made with the FPSLREB panel.

The opinion of the other party will be obtained before a decision is made whether to postpone the hearing and all persons whose names appear on the Board’s list will be informed of that decision.

Sometimes, the parties settle the complaint among themselves before the hearing. It is then up to the complainant to inform in writing the FPSLREB that the dispute has been resolved and is being withdrawn, or is in the process of being resolved. If the hearing has started or is about to start (on that same day), the parties should inform the FPSLREB panel who is hearing the case about the withdrawal before informing the FPSLREB in writing.

English or French?

Hearings may take place in English or French. However, they are normally held in the language in which the complaint was filed. Simultaneous interpretation services, when needed, are provided by the FPSLREB, but the parties must notify in writing the Executive Director of such a requirement at least three weeks ahead of time. The FPSLREB assumes all of the costs associated with this service.

At the written request of the complainant and with sufficient notice, the language of the hearing can be other than the language of the complaint (i.e. the language in which it was filed).

Witnesses

A party that wants to call a witness to testify and thinks that the witness will attend only if legally required to do so can request (in writing and in detail) a summons. It is up to this party to explain why this witness is essential to the presentation of its case. If the FPSLREB issues a summons, the party that intends to summon the witness must inform the witness that he or she is being called to testify at a hearing by serving him or her with the document sufficiently in advance of the hearing. All costs related to the service of a summons are paid by the party requesting the summons.

Furthermore, witnesses who are summoned by a party are entitled to compensation if they attend the hearing (see section 41 of the Federal Public Sector Labour Relations and Employment Board Act). It is up to the party that summoned them to pay this compensation. The party must ensure that the amount is equal to that to which the witnesses would be entitled if summoned to attend before the Federal Court.

As well, the party that summons a witness must pay ahead of time, where applicable and in accordance with the Federal Courts Rules, any travel expenses that the witness may incur.

Special needs

The parties are responsible for notifying in writing the FPSLREB sufficiently in advance of any needs or services that they will require before or during the hearing (for instance, that the building where the hearing is to take place be accessible to people with mobility disabilities).

Technical and procedural issues

Recording

The hearings are not normally recorded, and no minutes are prepared. Hence, it is important that the parties take notes. The FPSLREB panel will however take notes of the evidence and submissions. The notes taken by the FPSLREB panel are not accessible by the parties or the general public.

Swearing an oath

A witness who is called to testify at a hearing must swear an oath or solemnly affirm to tell the truth for his/her testimony to be admitted as evidence. Individuals asked to testify may swear on the Bible or another sacred text or object, or promise to tell the truth.

Please advise the FPSLREB in writing at least two weeks in advance if a specific sacred text is required for the hearing. Witnesses may also bring their own sacred text or object.

Failure to attend

If a person fails to attend a hearing or any subsequent session of that hearing, the FPSLREB panel may proceed with the hearing and decide the matter without further notice to that person.

Objections

If a party raises an objection at the hearing, the FPSLREB panel will ask the other party for its position on the objection. It will then give the objecting party an opportunity to respond to the other party’s position before rendering a decision on that matter. The decision on some objections may be reserved by the FPSLREB panel and dealt with in the final decision.

Applications

An application may be made to the FPSLREB panel at a hearing to have it render a decision on an issue concerning the procedure which does not touch on the substance of the case. An application may be presented in writing or, more commonly, orally at the hearing. When a party files such an application, it must provide its reasons for doing so. The other party then provides its position on the reasons, to which the party making the application then responds.

For instance, an application could be made to have the following day’s hearing start later than indicated on the notice of hearing.

If one of the parties contests the FPSLREB panel’s jurisdiction for hearing a complaint, after considering relevant evidence and submissions, the FPSLREB panel must be satisfied that it has jurisdiction before ruling on the complaint. The FPSLREB panel may also reserve decision on the question of jurisdiction and proceed with the hearing, based on the merits of the case (a common practice for jurisdiction-type questions).

The conduct of the hearing

Decorum

Proper behaviour is expected from the participants. As a sign of respect, when the FPSLREB panel enters or exits the room, it is customary, however not required, for participants to rise. As well, special places are assigned to the participants in the room depending on their role in the case (complainant, visitor, witness, etc.) (see Appendix 1).

Opening statement and preliminary matters

At the beginning of a hearing, the FPSLREB panel makes an opening statement. It takes this opportunity to explain the reason why the parties are there and the basic rules for the hearing. It then asks the parties whether they have any preliminary questions that they would like to bring to the panel’s attention. This is when the parties can raise an objection concerning the FPSLREB panel’s jurisdiction for hearing the complaint, request the exclusion of witnesses from the hearing or request modifications or clarifications on the conduct of the hearing.

Afterwards, each party may make an opening statement, during which it can provide a summary or overview of what it intends to prove and how it intends to do so and the remedy or relief sought. The order of presentation of the opening statements is the same as that of the presentation of evidence and the examination (see section on Presentation of evidence and examination of witnesses). It should be noted that the party that comes second may wait until it presents its case to make its opening statement, in other words, before its evidence is presented.

Presentation of evidence and examination of witnesses

Generally, the complainant will proceed first with the presentation of his or her evidence. However, in complaints involving sections 128 and 129 of the Code, the respondent is the one with the burden of proof and will proceed with presenting its evidence first (see subsection 133(6) of the Code).

The party that presents its evidence first is automatically the first one to examine its witnesses. During its examination-in-chief, this party shall aim to present all of the information that will help support its case. Then, the other party examines the first party’s witnesses: this is the cross-examination. It will then try to contradict the evidence presented or demonstrate that the merits of the case are unfounded. After the cross-examination, the party that was the first to examine its witnesses will have an opportunity to re-examine its witness to address any new point raised during the cross-examination. Then, the other party will have a chance to examine its own witnesses to present its evidence and, as before, this will be followed by a cross-examination and re-examination.

It should be noted that all witnesses, including the complainant who wish to testify, must swear an oath or make a solemn affirmation to tell the truth.

How do I present my evidence and examine my witnesses?

Essentially, the presentation of evidence involves examining witnesses and filing documents or items applicable to the dispute. Documents and other items presented as evidence are generally provided through a witness or with the other party’s agreement. A copy of such documents must be provided to each of the parties, to the witness, and to the FPSLREB panel. The documents must be filed in both official languages if they exist in both languages. To the extent possible, documents should be in their original form and not edited.

It is important that questions asked during the examination-in-chief of a witness be kept short and open to enable the witness to be free to recount the facts relative to the matter. This means that leading questions, where the witness is guided towards an answer, should not be used. However, there is nothing to prevent the parties from asking leading questions at the beginning of a witness’s examination-in-chief to establish the latter’s identity or during cross-examination to focus the witness’s answers.

How do I prepare my arguments?

When parties present their arguments, they can also present, in support of their case, the applicable case law (i.e., decisions from the courts), previous decisions of the FPSLREB or its predecessor tribunals (i.e., the Public Service Labour Relations Board and the Public Service Staffing Relations Board) or decisions of adjudicators. Research is very important in preparing the arguments. The parties may consult the FPSLREB’s Web site, where they can find its previous decisions or those of its predecessors as well as those of adjudicators, the different statutes under its jurisdiction and other useful links.

Argument

During the presentation of arguments, the parties speak in the same order as for the presentation of evidence. By this time, the FPSLREB panel knows all of the elements or relevant facts of the dispute as they were presented and hears the parties’ arguments.

This is when the parties refer to previous decisions, statutes or case law to support their arguments.

Federal Court decisions are available online at:

http://decisions.fct-cf.gc.ca/fc-cf/en/nav.do

The FPSLREB’s (or predecessors’) decisions are available at:

http://fpslreb-crtespf.gc.ca/decisions/intro_e.asp

If a party wishes to refer to a previous decision, statute or case law, it must ensure that a copy is provided to each party and to the FPSLREB panel.

End of Hearing

After the parties have presented their arguments, the hearing will come to a close.

If more time is needed to continue the hearing, the FPSLREB panel will specify the date, time, place and terms of its continuance.

What happens after the hearing?

Decision

The hearing gives the FPSLREB panel an opportunity to hear the parties’ arguments, submissions, and all the evidence required to understand the dispute. The FPSLREB panel must then render its decision in writing. Normally, the FPSLREB panel tries to render its decision within four months of the hearing.

The FPSLREB’s Policy on Openness and Privacy explains why information filed with the FPSLREB is generally available to the public and why it could be reported in a decision posted on the PSLRB website and distributed to publishers.

APPENDIX 1: HEARING ROOM

Diagram showing arrangement of parties in a typical hearing room.