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Labour (Fed) - Grievances. Canada (Attorney General) v. Rushwan
In Canada (Attorney General) v. Rushwan (Fed CA, 2023) the Federal Court of Appeal held that a grievance needed to be heard as a de novo hearing, not as only a review of the employer's decision:[20] The Board focused on the initial reasons offered by the employer for its decision to deny the respondent’s request. Indeed, the Board expressly considered itself as sitting in review of the employer’s decision as opposed to conducting a de novo hearing (Reasons at para. 174).
[21] A hearing before an adjudicator of a grievance must, however, proceed as a de novo hearing (Patanguli v. Canada (Citizenship and Immigration), 2015 FCA 291, 486 N.R. 308 at para. 38). The Board’s task was therefore to interpret and apply the collective agreement to assess the employer’s decision; instead, the Board examined the reasons originally offered by the employer in denying the respondent’s request via email. The Board’s role on adjudication under paragraph 209(1)(a) of Act is not to assess the substantive reasonableness of an employer’s initial justification or explanation for its decision as if the Board were sitting in a judicial review capacity. The Board’s mandate under this provision, rather, is to determine whether the employer breached the collective agreement based on a de novo assessment of the relevant facts, law and argument.
[22] This principle is well established in the Board’s jurisprudence. In Scanlon and Christianson v. Canada Revenue Agency, 2009 PSLRB 42, 97 C.L.A.S. 297 [Scanlon], the Board held that it would not consider whether an employer had sufficiently justified its decision to the affected employees (Scanlon at para. 49):Ultimately, as a legal matter, an employer is required to prove the reasonableness of its decision to an adjudicator and not the employees at the worksite. An explanation to employees about the reasons for a change may be important for the morale of a workplace, but it is not something that involves the Board.
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