Bill C-25 leaves civil servants open to harassment: Gualtieri
Well-known whistleblower Joanna Gualtieri says the federal government's sweeping Public Service Modernization Act, Bill C-25, will leave federal public servants without legal protection from personal harassment and future whistleblowers open to retaliatory harassment.
Under Bill C-25, Sec. 236–titled "No Right of Action"–will return personally-harassed civil servants to a legal vacuum, argues Ms. Gualtieri, who pointed out that many civil servants assume that Treasury Board harassment policies and grievance procedures protect them, but neither the Public Service Staff Relations Act (PSSRA) nor any relevant collective agreement contains a clause covering personal harassment. She said the section overturns the rights of civil servants to sue.
Federal civil servants facing personal harassment never had any protection before Ms. Gualtieri's 2002 Ontario Court of Appeal decision. That ruling established the right to have such cases heard by an independent third party, or, the courts.
A lawyer, Ms. Gualtieri, who worked in the Department of Foreign Affairs and International Trade's Bureau of Physical Resources Department which managed $2-billion in real estate and other assets, tried to draw attention to mismanagement of real estate assets abroad that allowed diplomatic staff to have "grandiose and luxurious accommodations and lifestyles" at taxpayers' expense. She started blowing the whistle internally in the early 1990s on wrongdoing when she claimed the mismanagement of overseas properties cost taxpayers some $2-billion at DFAIT between 1986 and 1998.
Ms. Gualtieri subsequently became a target of retaliatory harassment, suffering "profoundly, personally and professionally." In 1998, Ms. Gualtieri and another DFAIT employee John Guenette sued the government for an unprecedented $36-million lawsuit alleging they were emotionally abused and ostracized for questioning spending on overseas.
The federal government tried to stifle the lawsuit for four years, arguing Ms. Gualtieri had no right to sue and should have instead filed a grievance.
Initially, the Superior Court of Ontario agreed, but the Ontario Court of Appeal in August 2002, overturned the decision and confirmed the right of public servants to sue their employer. The court also ordered the federal government to pay $50,000 to Ms. Gualtieri and Mr. Guenette. The two were asking for $3-million each in damages and $30-million to set up a non-profit organization to protect the rights of government employees.
Currently on leave without pay, Ms. Gualtieri is the executive director of Federal Accountability Initiative for Reform (FAIR), a not-for-profit advocacy organization supporting whistleblowers in the public service.
In January 2004, she will be back in Ontario Superior Court where the court will set a schedule to hear her case in a legal battle spanning several years.
"I wonder whether the Radwanski scandal was motivated by political expedience or a moral prerogative," Ms. Gualtieri told The Hill Times. "The government's future commitment to whistleblower protection will be the litmus test. Regardless of underlying motivations, the harassment epidemic characterized by [Auditor General] Sheila Fraser as a 'reign of terror' requires redress."
In the Treasury Board's survey of the Public Service in 2002, 21 per cent of 94,059 respondents reported being the victim of harassment on the job in the past two years.
"The courts are going to bend over backwards to try to find a way around this," said Sean McGee of Sec. 236, "Because from my point of view, it's offensive to that principle–no right without a remedy."
Mr. McGee practises labour employment law at Nelligan, O'Brien, Payne. The Ottawa firm represents several public sector unions as well as non-unionized civil servants.
"All they can do is go through the union route," said well-known human rights lawyer Clayton Ruby of Ruby and Edwardh in Toronto, "And that is only if they can persuade their union to bargain for a clause prohibiting personal harassment."
Mr. Ruby does not represent the Canadian government nor any unions.
Hearing about the Commons committee hearings on the Bill C-25 too late, Ms. Gualtieri then wrote to the Chair of the Senate Standing Committee on National Finance, Senator Lowell Murray, detailing her concerns and asking to testify back in June. Informed by e-mail, she was denied–due to "time constraints"–and told the committee "will not hear from any other employees or their representatives other than the public service unions." She said she was assured that committee members received her brief.
Currently the PSSRA designates which grievance classes can go to independent third-party adjudication (the Public Service Staff Relations Board (PSSRB)–dismissal, disciplinary action with financial penalty, or interpretation of a collective agreement clause.
Personal harassment grievances are not in those classes.
Personally harassed civil servants filing grievances typically discover them on their harassers' desks–e.g. supervisors, managers, executives.
Initially filing a grievance on her union's advice–the Public Service Alliance of Canada (PSAC)–Ms. Gualtieri later withdrew it to pursue a court remedy.
"Courts look at what previous steps you've taken," Ms. Gualtieri said. "One of the things that could've actually got me in trouble with the court was that I had filed a grievance."
Department of Justice lawyers argued that she chose her remedy–a grievance.
The courts don't want individuals duplicating processes across jurisdictions, filing a grievance and going to court for example. As a result, filing a grievance in what was a legal vacuum could have prejudiced her court case.
Ms. Gualtieri lost her initial case, with Justice James Chadwick ruling in September 2000 that as a union member her remedy was a grievance. She was ordered to pay $80,000 to Justice for costs on top of her own legal fees.
Initially, the PSAC was disinterested in the appeal, Ms. Gualtieri said. She met with the PSAC's National President Nycole Turmel to discuss the decision's impact. The PSAC represents some 150,000 civil servants.
"All of a sudden their members would go to them and say, 'Pursuant to this decision which you didn't appeal, you can apparently take me to the Board [the PSSRB]. Do it!'" Ms. Gualtieri said. "And they would have to say, 'We can't.' And then people would be suing the union."
Subsequently, the PSAC did support Ms. Gualtieri's appeal.
Justices John Laskin, J. C. MacPherson and Janet Simmons of the Ontario Court of Appeal ruled in August 2002 that because her retaliatory harassment grievance could not go to the PSSRB, she had the right to a court remedy.
"They are reversing the court decision," Mr. Ruby said, of Sec. 236. "It gives power to the union instead of the employee."
In court, the employee decides what goes forward, Mr. Ruby added.
At FAIR, Ms. Gualtieri said she hears from "many many" civil servants concerned over the "coziness" of union-government relationships.
"That's why they were so relieved by my appeal decision that finally we were going to break free of the shackles of the union," Ms. Gualtieri said. "They're going to be devastated now. Most people don't know about Section 236. The union hasn't put out any press releases alerting their members that this a retrograde maneuver that will leave them with no remedy."
Sec. 236 was not raised by the PSAC in its submission to the Commons Committee.
In its presentation to the Senate committee, a single line "urges" the Senate to "delete it" since it "could preclude" civil servants "access to the courts as a last and important resource." This came after Ms. Gualtieri wrote to Ms. Turmel about the section in late May.
Sec. 236, called "No Right of Action," reads as follows:
"The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.
"Application (2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication."
Liberal Sen. Joseph A. Day, the Committee's Deputy Chair said a functioning grievance process is the point, "not [to] have a person say, well I don't like the grievance process. I want to step outside that, and I want to use the courts."
He also contends that "terms or conditions of employment" may not include personal harassment, adding whistleblowing issues will be covered in separate legislation.
"I don't agree with that," Mr. Ruby said. "It seems to me that 'conditions of employment' really covers everything in the workplace."
Personal harassment is not always about whistleblowing, Ms. Gualtieri said, citing supervisors harassing an employee over colourful clothing as a simple example.
Other examples include whisper campaigns, elimination of meaningful work, isolation, illegal deployment to non-existent positions, all only limited by the harasser's imagination.
"The employer and the employee have a common interest in avoiding harassment based on racial grounds and so forth," Mr. Ruby said, of classic harassment covered by human rights legislation. "But when it comes to harassment in more general terms, the employer may say, 'Hey! We're not interested in that'."
"And the unions say, 'Why should we go to the wall for a whistleblower who's liable to be a troublemaker from our perspective as well, when we can get another five cents an hour and sacrifice this point?' So unions are imperfect protectors of working people, and this is a good example of how imperfect it can be."
The PSAC's Ms. Turmel said she was "not really comfortable" discussing Sec. 236 in detail.
"We don't agree with 90 percent of C-25," she said. "The only thing that we agree on in this is the right of the union to present a grievance on behalf of their members. Besides that, everything is crap."
Ms. Turmel referred to the PSAC's training programs to educate and sensitize members on how to address harassment and organize around it.
Steve Hindle, president of the Professional Institute of the Public Service of Canada (PIPSC), said that the employer says Treasury Board's policy covers it.
PIPSC represents 49,000 civil servants.
"I don't have any evidence," Mr. Hindle said, "That people have not been able to have personal harassment issues dealt with in the workplace in a manner that's appropriate."
Since grievance work is the bulk of unions' business, Ms. Gualtieri said she speculates that unions may be trying to maintain control over all recourse avenues.
"We're looking at this, and this is not the kind of fundamental change that you want to be reacting to after it's been passed," Mr. McGee said of Sec. 236.
Asked if the section could be legally challenged, Mr. Ruby said theoretically it could.
"You'd have to find a constitutional violation, presumably in security of the person. It would be complex and difficult at best."
Section 236 "doesn't raise the bar," Mr. Ruby added. "It closes the door."
Published in The Hill Times, October 27, 2003
Under Bill C-25, Sec. 236–titled "No Right of Action"–will return personally-harassed civil servants to a legal vacuum, argues Ms. Gualtieri, who pointed out that many civil servants assume that Treasury Board harassment policies and grievance procedures protect them, but neither the Public Service Staff Relations Act (PSSRA) nor any relevant collective agreement contains a clause covering personal harassment. She said the section overturns the rights of civil servants to sue.
Federal civil servants facing personal harassment never had any protection before Ms. Gualtieri's 2002 Ontario Court of Appeal decision. That ruling established the right to have such cases heard by an independent third party, or, the courts.
A lawyer, Ms. Gualtieri, who worked in the Department of Foreign Affairs and International Trade's Bureau of Physical Resources Department which managed $2-billion in real estate and other assets, tried to draw attention to mismanagement of real estate assets abroad that allowed diplomatic staff to have "grandiose and luxurious accommodations and lifestyles" at taxpayers' expense. She started blowing the whistle internally in the early 1990s on wrongdoing when she claimed the mismanagement of overseas properties cost taxpayers some $2-billion at DFAIT between 1986 and 1998.
Ms. Gualtieri subsequently became a target of retaliatory harassment, suffering "profoundly, personally and professionally." In 1998, Ms. Gualtieri and another DFAIT employee John Guenette sued the government for an unprecedented $36-million lawsuit alleging they were emotionally abused and ostracized for questioning spending on overseas.
The federal government tried to stifle the lawsuit for four years, arguing Ms. Gualtieri had no right to sue and should have instead filed a grievance.
Initially, the Superior Court of Ontario agreed, but the Ontario Court of Appeal in August 2002, overturned the decision and confirmed the right of public servants to sue their employer. The court also ordered the federal government to pay $50,000 to Ms. Gualtieri and Mr. Guenette. The two were asking for $3-million each in damages and $30-million to set up a non-profit organization to protect the rights of government employees.
Currently on leave without pay, Ms. Gualtieri is the executive director of Federal Accountability Initiative for Reform (FAIR), a not-for-profit advocacy organization supporting whistleblowers in the public service.
In January 2004, she will be back in Ontario Superior Court where the court will set a schedule to hear her case in a legal battle spanning several years.
"I wonder whether the Radwanski scandal was motivated by political expedience or a moral prerogative," Ms. Gualtieri told The Hill Times. "The government's future commitment to whistleblower protection will be the litmus test. Regardless of underlying motivations, the harassment epidemic characterized by [Auditor General] Sheila Fraser as a 'reign of terror' requires redress."
In the Treasury Board's survey of the Public Service in 2002, 21 per cent of 94,059 respondents reported being the victim of harassment on the job in the past two years.
"The courts are going to bend over backwards to try to find a way around this," said Sean McGee of Sec. 236, "Because from my point of view, it's offensive to that principle–no right without a remedy."
Mr. McGee practises labour employment law at Nelligan, O'Brien, Payne. The Ottawa firm represents several public sector unions as well as non-unionized civil servants.
"All they can do is go through the union route," said well-known human rights lawyer Clayton Ruby of Ruby and Edwardh in Toronto, "And that is only if they can persuade their union to bargain for a clause prohibiting personal harassment."
Mr. Ruby does not represent the Canadian government nor any unions.
Hearing about the Commons committee hearings on the Bill C-25 too late, Ms. Gualtieri then wrote to the Chair of the Senate Standing Committee on National Finance, Senator Lowell Murray, detailing her concerns and asking to testify back in June. Informed by e-mail, she was denied–due to "time constraints"–and told the committee "will not hear from any other employees or their representatives other than the public service unions." She said she was assured that committee members received her brief.
Currently the PSSRA designates which grievance classes can go to independent third-party adjudication (the Public Service Staff Relations Board (PSSRB)–dismissal, disciplinary action with financial penalty, or interpretation of a collective agreement clause.
Personal harassment grievances are not in those classes.
Personally harassed civil servants filing grievances typically discover them on their harassers' desks–e.g. supervisors, managers, executives.
Initially filing a grievance on her union's advice–the Public Service Alliance of Canada (PSAC)–Ms. Gualtieri later withdrew it to pursue a court remedy.
"Courts look at what previous steps you've taken," Ms. Gualtieri said. "One of the things that could've actually got me in trouble with the court was that I had filed a grievance."
Department of Justice lawyers argued that she chose her remedy–a grievance.
The courts don't want individuals duplicating processes across jurisdictions, filing a grievance and going to court for example. As a result, filing a grievance in what was a legal vacuum could have prejudiced her court case.
Ms. Gualtieri lost her initial case, with Justice James Chadwick ruling in September 2000 that as a union member her remedy was a grievance. She was ordered to pay $80,000 to Justice for costs on top of her own legal fees.
Initially, the PSAC was disinterested in the appeal, Ms. Gualtieri said. She met with the PSAC's National President Nycole Turmel to discuss the decision's impact. The PSAC represents some 150,000 civil servants.
"All of a sudden their members would go to them and say, 'Pursuant to this decision which you didn't appeal, you can apparently take me to the Board [the PSSRB]. Do it!'" Ms. Gualtieri said. "And they would have to say, 'We can't.' And then people would be suing the union."
Subsequently, the PSAC did support Ms. Gualtieri's appeal.
Justices John Laskin, J. C. MacPherson and Janet Simmons of the Ontario Court of Appeal ruled in August 2002 that because her retaliatory harassment grievance could not go to the PSSRB, she had the right to a court remedy.
"They are reversing the court decision," Mr. Ruby said, of Sec. 236. "It gives power to the union instead of the employee."
In court, the employee decides what goes forward, Mr. Ruby added.
At FAIR, Ms. Gualtieri said she hears from "many many" civil servants concerned over the "coziness" of union-government relationships.
"That's why they were so relieved by my appeal decision that finally we were going to break free of the shackles of the union," Ms. Gualtieri said. "They're going to be devastated now. Most people don't know about Section 236. The union hasn't put out any press releases alerting their members that this a retrograde maneuver that will leave them with no remedy."
Sec. 236 was not raised by the PSAC in its submission to the Commons Committee.
In its presentation to the Senate committee, a single line "urges" the Senate to "delete it" since it "could preclude" civil servants "access to the courts as a last and important resource." This came after Ms. Gualtieri wrote to Ms. Turmel about the section in late May.
Sec. 236, called "No Right of Action," reads as follows:
"The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.
"Application (2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication."
Liberal Sen. Joseph A. Day, the Committee's Deputy Chair said a functioning grievance process is the point, "not [to] have a person say, well I don't like the grievance process. I want to step outside that, and I want to use the courts."
He also contends that "terms or conditions of employment" may not include personal harassment, adding whistleblowing issues will be covered in separate legislation.
"I don't agree with that," Mr. Ruby said. "It seems to me that 'conditions of employment' really covers everything in the workplace."
Personal harassment is not always about whistleblowing, Ms. Gualtieri said, citing supervisors harassing an employee over colourful clothing as a simple example.
Other examples include whisper campaigns, elimination of meaningful work, isolation, illegal deployment to non-existent positions, all only limited by the harasser's imagination.
"The employer and the employee have a common interest in avoiding harassment based on racial grounds and so forth," Mr. Ruby said, of classic harassment covered by human rights legislation. "But when it comes to harassment in more general terms, the employer may say, 'Hey! We're not interested in that'."
"And the unions say, 'Why should we go to the wall for a whistleblower who's liable to be a troublemaker from our perspective as well, when we can get another five cents an hour and sacrifice this point?' So unions are imperfect protectors of working people, and this is a good example of how imperfect it can be."
The PSAC's Ms. Turmel said she was "not really comfortable" discussing Sec. 236 in detail.
"We don't agree with 90 percent of C-25," she said. "The only thing that we agree on in this is the right of the union to present a grievance on behalf of their members. Besides that, everything is crap."
Ms. Turmel referred to the PSAC's training programs to educate and sensitize members on how to address harassment and organize around it.
Steve Hindle, president of the Professional Institute of the Public Service of Canada (PIPSC), said that the employer says Treasury Board's policy covers it.
PIPSC represents 49,000 civil servants.
"I don't have any evidence," Mr. Hindle said, "That people have not been able to have personal harassment issues dealt with in the workplace in a manner that's appropriate."
Since grievance work is the bulk of unions' business, Ms. Gualtieri said she speculates that unions may be trying to maintain control over all recourse avenues.
"We're looking at this, and this is not the kind of fundamental change that you want to be reacting to after it's been passed," Mr. McGee said of Sec. 236.
Asked if the section could be legally challenged, Mr. Ruby said theoretically it could.
"You'd have to find a constitutional violation, presumably in security of the person. It would be complex and difficult at best."
Section 236 "doesn't raise the bar," Mr. Ruby added. "It closes the door."
Published in The Hill Times, October 27, 2003
