Complaint Dismissed for Being Filed Under the Wrong Section of the FPSLRA

Date: 202 60331 File : 561-02-53423 Citation: 2026 FPSLREB 31 Federal [NAME] Act and Federal Public Sector Labour Relations Act Before a panel of the Federal [NAME] Complainant and [NAME] (D epartment of F oreign A ffairs , T rade and D evelopment ) Respondent Indexed as [NAME] v. [NAME] (Department of Foreign Affairs, [NAME]) In the matter of a complaint made under section 190 of the Federal Public Sector Labour Relations Act Before: [NAME], a panel of the Federal [NAME] For the Complainant: [NAME], representative For the Respondent : [redacted] Decided on the basis of written submissions, filed November 10 and 21, 2025, and February 16, 2026 .

REASONS FOR

DECISION I. Overview [ 1 ] This case is about whether a complaint should be dismissed because it was made under the wrong section of the Act. [ 2 ] [NAME] (“the complainant”) filed a notice of an occurrence with her employer, the Department of Foreign Affairs, [NAME] (commonly still called DFAIT), alleging workplace harassment. DFAIT appointed an investigator, and the complainant says that the investigator acted improperly in the course of his investigation. A notice of an occurrence is made under the Part II of the Canada Labour Code (R.S.C., 1985, c. L-2). [ 3 ] The complainant made this complaint, alleging a breach of ss. 186(2)(a)(iii) and (iv) and 186(2)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA ). She made her complaint under s. 190(1)(g) of the FPSLRA , which gives the Federal [NAME] (“the Board”) the jurisdiction to examine and inquire into a complaint of a breach of s. 186. The paragraphs that the complainant relies on prohibit an employer from reprising against an employee because the employee made a complaint or exercised any right under Parts 1, 2, or 2.1 of the FPSLRA . [ 4 ] DFAIT asks me to dismiss this complaint, arguing that the complainant’s allegations fall outside ss. 186(2)(a)(iii) and (iv) and 186(2)(b) of the FPSLRA because she did not exercise a right under the FPSLRA — she exercised a right under the Canada Labour Code instead. [ 5 ] I have concluded that the complainant’s allegations fall outside ss. 186(2)(a)(iii) and (iv) and 186(2)(b) of the FPSLRA . Those provisions protect an employee from reprisals for having taken some step under the FPSLRA . Since a notice of an occurrence is filed under Part II of the Canada Labour Code , those provisions do not apply to her complaint. [ 6 ] The Board has jurisdiction to deal with a complaint that an employee was reprised against for having taken a step under the Canada Labour Code , under s. 133 of that statute and s. 240 of the FPSLRA . I considered whether I could treat the references to s. 186(2) of the FPSLRA as a technical irregularity under s. 241(1) of the FPSLRA and simply treat this complaint as if it had been made under the correct section of the FPSLRA . However, I have decided that I cannot do so in this case. The complainant never argues that she just made a mistake in how she made her complaint, and the two types of complaint have different legal rules, so they are not interchangeable. [ 7 ] My detailed reasons follow.

II. Nature of the complaint [ 8 ] The complainant was employed by DFAIT. She was posted to Harare, Zimbabwe, as an executive administrative assistant. While employed at DFAIT, she filed four notices of an occurrence, the term used for harassment complaints under the [ADDRESS] and Violence Prevention Regulations (SOR/2020-130) and the Canada Labour Code . DFAIT appointed an external investigator to investigate the complaints. [ 9 ] The complainant is dissatisfied with the process of that investigation. She says that the investigator acknowledged receipt of only two of her four notices of occurrence, that he prepared a preliminary report that did not refer to two of her allegations, that he failed to interview crucial witnesses, and that he dismissed evidence provided by the complainant during his investigation. [ 10 ] The complainant made this complaint on October 17, 2025. The complaint lists four grounds for the complaint. All four grounds are about the process of that investigation. [ 11 ] After receiving the complaint, the Board sought clarification about which provisions of the FPSLRA the complainant was relying on. The complainant responded as follows: … Section 186(2)(a) ; Interference with Employee Rights: The department interfered with the complainant’s rights by mishandling the harassment complaint investigation process. This interference includes suppression of critical evidence, failure to address the full scope of the Notices of Occurrence filed, and inconsistent treatment of witness testimony. The department’s conduct in administering the investigation undermined its integrity and effectively discriminated against the complainant for exercising rights under the Act. Section 186(2)(b) ; Imposition of Restrictive Conditions: The employer imposed conditions during the investigation process that restrained the complainant from fully exercising their rights under the Act. The investigator’s handling of support persons, selective exclusion of relevant facts, and inconsistent positions created an environment that effectively restricted the complainant’s ability to pursue the complaint fairly. Failure to Act in Good Faith: Throughout the process, the employer failed to act in good faith. The complainant raised substantial concerns regarding partiality, material omissions, and contradictory positions. Despite repeated requests for clarity and corrective measures, the department provided minimal response or remedial action, demonstrating a pattern of conduct inconsistent with the obligations under subsection 186(2). … [ 12 ] DFAIT responded to the complaint by asking the Board to dismiss it. DFAIT argues that none of the allegations in the complaint fall under s. 186 of the FPSLRA . [ 13 ] The complainant filed a reply, which reads in part as follows: … 5. The complaint is not about the Code process in the abstract, nor does it challenge the investigator’s substantive findings. Rather, it concerns what the employer did: failing to transmit all four notices of occurrence to the investigator, directing the alteration of the investigator’s report, and terminating [NAME]’s employment before the investigation was completed.

6. Those are actions that directly impair her employment rights and constitute interference, intimidation, and reprisal prohibited by section 186(2) of the FPSLRA.

7. The Respondent’s assertion that “there is nothing in the submission that meets the language of section 185” ignores the plain text of section 186(2)(a)(iii) and (iv), which prohibit discrimination, intimidation, or discipline against any person because that person “has made an application or filed a complaint” or “has exercised any right under this Part.” [NAME] filed harassment complaints under the Code ; the employer’s response to those complaints falls squarely within the Board’s jurisdiction. … [ 14 ] I invited both parties to file additional submissions about DFAIT’s preliminary objection. DFAIT did not file any. The complainant filed an affidavit prepared by one of her witnesses but did not file any submissions about the Board’s jurisdiction over this complaint. [ 15 ] The Board is empowered to decide a complaint on the basis of written submissions because of its power to decide “... any matter before it without holding an oral hearing” in accordance with s. 22 of the Federal [NAME] Act (S.C. 2013, c. 40, s. 365); see also [NAME] v. [NAME] of Canada , 2024 FCA 68, and [NAME] v. Canada (Attorney General) , 2024 FCA 34. In light of the nature of DFAIT’s motion, I have decided that this preliminary issue can be decided in writing.

III. The complaint did not arise under s. 190 of the FPSLRA [ 16 ] For ease of reference, the relevant provisions in the FPSLRA read as follows: … […] 186(2) No employer, no person acting on the employer’s behalf, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, shall 186(2) Il est interdit à l’employeur, à la personne qui agit pour le compte de celui-ci ainsi qu’au titulaire d’un poste de direction ou de confiance, à l’ officier , au sens du paragraphe 2(1) de la Loi sur la Gendarmerie royale du Canada ou à la personne qui occupe un poste détenu par un tel officier, qu’ils agissent ou non pour le compte de l’employeur   : (a) refuse to employ or to continue to employ, or suspend, lay off, discharge for the promotion of economy and efficiency in the Royal Canadian Mounted Police or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person a) de refuser d’employer ou de continuer à employer une personne donnée, ou encore de la suspendre, de la mettre en disponibilité, de la licencier par mesure d’économie ou d’efficacité à la Gendarmerie royale du Canada ou de faire à son égard des distinctions illicites en matière d’emploi, de salaire ou d’autres conditions d’emploi, de l’intimider, de la menacer ou de prendre d’autres mesures disciplinaires à son égard pour l’un ou l’autre des motifs suivants   : (i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an [NAME], or participates in the promotion, formation or administration of an [NAME], (i) elle adhère à une organisation syndicale ou en est un dirigeant ou représentant — ou se propose de le faire ou de le devenir, ou incite une autre personne à le faire ou à le devenir —, ou contribue à la formation, la promotion ou l’administration d’une telle organisation, (ii) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Part or Part 2 or 2.1, (ii) elle a participé, à titre de témoin ou autrement, à toute procédure prévue par la présente partie ou les parties 2 ou 2.1, ou pourrait le faire, (iii) has made an application or filed a complaint under this Part or Division 1 of Part 2.1 or presented a grievance under Part 2 or Division 2 of Part 2.1, or (iii) elle a soit présenté une demande ou déposé une plainte sous le régime de la présente partie ou de la section 1 de la partie 2.1, soit déposé un grief sous le régime de la partie 2 ou de la section 2 de la partie 2.1, (iv) has exercised any right under this Part or Part 2 or 2.1; (iv) elle a exercé tout droit prévu par la présente partie ou les parties 2 ou 2.1; (b) impose, or propose the imposition of, any condition on an appointment, or in an employee’s terms and conditions of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an [NAME] or exercising any right under this Part or Part 2 or 2.1; or …. b) d’imposer — ou de proposer d’imposer —, à l’occasion d’une nomination ou relativement aux conditions d’emploi, une condition visant à empêcher le fonctionnaire ou la personne cherchant un emploi d’adhérer à une organisation syndicale ou d’exercer tout droit que lui accorde la présente partie ou les parties 2 ou 2.1; … […] 190 (1) The Board must examine and inquire into any complaint made to it that 190 (1) La Commission instruit toute plainte dont elle est saisie et selon laquelle : … […] (g) the employer, an [NAME] or any person has committed an unfair labour practice within the meaning of section 185. g) l’employeur, l’organisation syndicale ou toute personne s’est livré à une pratique déloyale au sens de l’article 185. … […] 240 Part II of the Canada Labour 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 except that, for the purpose of that application, 240 La partie II du Code canadien du travail s’applique à la fonction publique et aux personnes qui y sont employées comme si la fonction publique était une entreprise fédérale visée par cette partie, sous réserve de ce qui suit : (a) any reference in that Part to a) en ce qui concerne la terminologie : … […] (ii) for the purposes of sections 133 and 134 of the Canada Labour Code , Board is to be read as a reference to the Public Service [NAME] …. (ii)   pour l ’ application des articles 133 et 134 du Code canadien du travail , Conseil s ’ entend de la Commission des relations de travail et de l ’ emploi dans la fonction publique, … […] [Emphasis in the original] [ 17 ] Section 186 of the FPSLRA describes unfair labour practices committed by an employer. Specifically, ss. 186(2)(a) and (b) prohibit an employer from taking certain reprisal actions against an employee because the employee exercised some right under the FPSLRA . Exercising a protected right under Parts 1, 2, or 2.1 the FPSLRA is a precondition for a complaint alleging a breach of ss. 186(2)(a) and (b). The complainant never exercised a right under the FPSLRA before making this complaint. She filed a notice of an occurrence, which is a protected right under the Canada Labour Code . As she acknowledges in her submissions, she was “… exercising statutory rights under the [ Canada Labour ] Code .” [ 18 ] Therefore, I must dismiss this complaint because she made it under the wrong section of the FPSLRA . [ 19 ] This case is the mirror image of the Board’s decision in [NAME] v. [NAME] , 2025 FPSLREB 120. In that case, a former employee presented a grievance under the FPSLRA , alleging harassment. He was terminated shortly after doing so. He made a complaint with the Board under s. 240 of the FPSLRA , alleging a breach of s. 147 of the Canada Labour Code , namely that his termination was a reprisal for having engaged in a protected activity under the Canada Labour Code . The Board dismissed the complaint, concluding that a complaint under the Canada Labour Code and a grievance were different things and that complaints of reprisal for having done those things must be made using the correct provision of the FPSLRA . As the Board wrote in [NAME] , “There are different statutory regimes for employees who have been subject to a reprisal for having filed a grievance and those who have been subject to a reprisal for having exercised some right under Part II of the Canada Labour Code .” [ 20 ] In [NAME] , the Board dismissed the complaint because the protected activity was under the FPSLRA and not the Canada Labour Code , so a reprisal complaint had to have been made under s. 190 of the FPSLRA and not s. 240. In this case, the protected activity was under the Canada Labour Code and not the FPSLRA , so a reprisal complaint had to have been made under s. 240 of the FPSLRA , not s. 190. [ 21 ] As the Board discussed at paragraph 39 of [NAME] , this is not a meaningless distinction. Different legal rules operate for the two different types of reprisal complaints. In particular, the burden of proof is different. The complainant in this case has relied on the fact that the burden of proof in a case alleging a breach of s. 186(2) lies with the employer; in a complaint under s. 240, the burden rests with the complainant. [ 22 ] For these reasons, the complaint does not fall under s. 190 of the FPSLRA .

IV. This is not a technical irregularity [ 23 ] Subsection 241(1) of the FPSLRA states that “[n]o proceeding under this Act is invalid by reason only of a defect in form or a technical irregularity.” I considered whether making a complaint under s. 190 instead of s. 240 of the FPSLRA is a technical irregularity that I could ignore. However, I have decided that s. 241(1) does not apply in this case. [ 24 ] I reach that conclusion for the same reasons as the Board wrote in [NAME] (see paragraphs 51 and 52). First, the complainant never argues or suggests that making a complaint under s. 190 instead of s. 240 was a mistake or irregularity. She has been represented by a licensed paralegal throughout. I have to assume that her decision to make it under s. 190 instead of s. 240 was deliberate and not an oversight or irregularity, especially because she made no effort to correct the error when the employer drew it to her attention in its response. [ 25 ] Second, there are differences between the two types of reprisal complaints, including the burden of proof and the legal test for the complaints. This is not a situation in which there would be no consequences if I were to substitute one statutory provision for another. [ 26 ] Therefore, I am not willing to treat this as a mere technical irregularity. [ 27 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

V. Order [ 28 ] The complaint is dismissed. March 31, 2026. [NAME], a panel of the Federal [NAME]