Date: 19980409
Docket: T-1117-97
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
IRÈNE MARINOS
Respondent
- and -
THE PUBLIC SERVICE ALLIANCE OF CANADA
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] This is an application under section 18.1 of the Federal Court Act for an order setting aside the decision of Muriel Korngold Wexler, an adjudicator and member of the Public Staff Relations Board, rendered on April 30, 1997. The applicant also seeks an order prohibiting the adjudicator from taking jurisdiction and hearing the grievance which had been referred to adjudication pursuant to section 92 of the Public Service Staff Relations Act (PSSRA).
[2] The decision arose from an objection by the applicant to the adjudicator's jurisdiction to hear a reference to adjudication by the respondent under section 92 of the PSSRA. By her decision, the adjudicator accepted jurisdiction to hear the reference to adjudication on its merits.
[3] The application is based on the following grounds:
| 1. The adjudicator erred in law in determining that the respondent Marinos was an employee for the purposes of the PSSRA. |
| 2. The adjudicator exceeded her jurisdiction by ordering that the reference to adjudication resume and be heard on the merits. |
[4] The respondent, Public Service Alliance of Canada (PSAC), is an employee organization within the meaning of the PSSRA and is certified as the bargaining agent for the Correctional Group (Supervisory and Non-Supervisory) Bargaining Units. The issue which was addressed by the adjudicator in the decision under review was whether the respondent, Irène Marinos, was an employee within the meaning of the PSSRA. As an employee under the PSSRA, she would fall within the bargaining unit represented by the PSAC and would be subject to the PSAC Master Collective Agreement and Correctional Group Specific Collective Agreement. In these circumstances, the PSAC requested and was granted intervenor status before the Adjudicator.
[5] The respondent was first employed as a correctional officer (CX-COF-01) at the Cowansville Institution in Cowansville, Quebec, on January 5, 1996. She was appointed to that position for a ninety day period pursuant to section 21.2 of the Public Service Employment Act1 (PSEA).
[6] The respondent signed three consecutive contracts of employment, each covering a 90-day period: from January 5, 1996 to April 3, 1996; April 4, 1996 to July 2, 1996; and July 3, 1996 to September 30, 1996. Each offer of employment included the following term:
| This appointment is not subject to the provisions of the Public Service Employment Act. This means, notably, that you will not qualify for internal competitions and will not be entitled to file a grievance during this period of employment. Moreover, the Act specifies that a person may be appointed as an employee temporarily for a period of not more than ninety (90) days and may not work in the same department for more than one hundred and twenty-five (125) working days within a twelve (12) month period. |
|
[7] The respondent worked a total of 115 days between January 5, 1996 and July 8, 1996.
[8] The respondent's employment was terminated for disciplinary reasons on July 17, 1996 and her last day worked was July 8, 1996.
[9] On July 25, 1996, the respondent grieved her termination.
[10] The respondent's grievance was denied at the first level on October 25, 1996. In denying her grievance, the employer stated that as a person employed on a casual basis the respondent did not have the right to grieve.
[11] The respondent referred her grievance to adjudication.
[12] The applicant objected to the jurisdiction of an adjudicator to hear the grievance on the basis that the grievor was "a person employed on a casual basis" and was therefore not an "employee" as that term is defined in section 2 of the P.S.S.R.A.
[13] The adjudicator concluded that she did have jurisdiction to hear the grievance:
| The issue to be decided is one of fact. Does the evidence substantiate the employer's allegation that Ms. Marinos was employed on a casual basis. In my opinion, the evidence does not support such an allegation. Even though Messrs. Mercier and Roy were instructed to call her a couple of hours before the start of her shift and the employer decided not to employ such "casuals" for more than 125 days in any year, the reality is that Cowansville has a chronic need for correctional officers. Ms. Marinos' services were used regularly during her seven months' service. The employer knew and could foresee the shortage of correctional officers. Ms. Marinos and Mr. Mercier testified in this regard. Mr. Mercier was not permitted to inform Ms. Marinos when her next shift would be even though he knew in advance that she would be called. In addition, the employer issued her a uniform and required her to be available at all times. The evidence has also demonstrated that her services were not used for short periods. She worked an average of 18 days a month during a continuous period of more than six months. Therefore, her services were needed on a regular basis. The three offers of employment were automatically renewed and her employment was continuous. At no time did she have a break in service of five days or more. She even accumulated sick leave credits during her period of employment as provided under the relevant collective agreement. |
|
| For all these reasons, I find that Ms. Marinos was an employee under the PSSRA and she therefore had the right to present a grievance and refer it to adjudication under subsections 91(1) and 92(1) of the PSSRA. |
|
Issues
[14] The applicant raises the following issues:
| 1) What is the appropriate standard of review to be applied to a review of the adjudicator's determination that the applicant is an employee under the PSSRA? |
|
| 2) Did the adjudicator err in concluding that the applicant is an employee under the PSSRA? |
|
[15] The applicant submits that the proper standard of review to be applied in this case is that of correctness and that the adjudicator was not correct in her conclusion that the respondent Marinos was an "employee" under the PSSRA.
[16] The respondents submit that the issue which was addressed by the adjudicator - whether Ms. Marinos was employed on a casual basis - falls squarely within the expertise of an adjudicator and, accordingly, the decision under review is subject to the patently unreasonableness standard. Indeed, as the adjudicator applied the appropriate test to the facts before her, the respondents submit that her decision cannot be construed as patently unreasonable.
[17] In any event, as the decision was primarily based upon the adjudicator's findings of fact, the Court's review authority is severely limited by paragraph 18.1(4)(d) of the Federal Court Act. PSAC submits that there is nothing in the applicant's application record or memorandum which would justify setting aside the adjudicator's decision on the basis of erroneous findings of fact.
[18] Finally, regardless of the standard of review which is applied, the respondents submit that the adjudicator was correct when she concluded, on all of the evidence presented to her, that the applicant was not employed on a casual basis and, therefore, was an employee within the meaning of the PSSRA.
Legislative Provisions
[19] Public Service Employment Act
| Subsection 2(1)
"employee" means a person employed in that part of the Public Service to which the Commission has the exclusive right and authority to appoint persons;
|
Paragraphe 2(1)
"fonctionnaire" Personne employée dans la fonction publique et dont la nomination à celle-ci relève exclusivement de la Commission.
|
[. . .]
| Section 5
5. The Commission shall
(a) appoint or provide for the appointment of qualified persons to or from within the Public Service in accordance with the provisions and principles of this Act;
|
Article 5
5. La Commission :
a) conformément aux dispositions et principes énoncés dans la présente loi, nomme ou fait nommer à un poste de la fonction publique des personnes qualifiées, appartenant ou non à celle-ci;
|
[. . .]
| Casual Employment
21.2 (1) Notwithstanding any other provision of this Act, the Commission may appoint any person to the Public Service for a period not exceeding ninety days.
|
Emploi temporaire
21.2 (1) Par dérogation aux autres dispositions de la présente loi, la Commission peut nommer toute personne à la fonction publique pour une période ne dépassant pas quatre-vingt-dix jours.
|
| (2) No person appointed under subsection (1) may work in any particular department, or in any other particular portion of the Public Service, on more than one hundred and twenty-five days in any year.
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(2) Les personnes visées au paragraphe (1) ne peuvent travailler dans un même ministère ou autre secteur de la fonction publique plus de cent vingt-cinq jours dans une année.
|
| (3) The provisions of this Act, other than this section, do not apply to a person who is appointed under subsection (1).
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(3) Les dispositions de la présente loi, à l'exception du présent article, ne s'appliquent pas aux personnes visées au paragraphe (1).
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[20] Public Service Staff Relations Act
| "employee" means a person employed in the Public Service, other than
|
"fonctionnaire" Personne employée dans la fonction publique, même si elle a cessé d'y travailler par suite d'une grève ou par suite d'un licenciement contraire à la présente loi ou à une autre loi fédérale, mais à l'exclusion des personnes :
|
[. . .]
| (g) a person employed on a casual basis,
|
g) employées à titre occasionnel;
|
[. . .]
| 92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, [. . .]
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
|
92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief [. . .]
|
Analysis
[21] In my view, the adjudicator asked herself the proper question: whether Ms. Marinos was a person employed on a casual basis.
[22] The applicant submits that a person employed in the Public Service under the provisions of section 21.2 of the PSEA is not an "employee" as defined in the PSSRA.
[23] I agree with the Federal Court of Appeal2 that "The public sector system is defined, as we know, in three statutes: the PSEA, R.S.C. 1985, c. P-33, the PSSRA, R.S.C., 1985, c. P-35, and the Financial Administration Act, R.S.C. 1985, F-11, which must necessarily be interpreted in relation to each other since they were adopted for a common purpose."
[24] However, each statute has a defined purpose and is administered by different bodies.
[25] The PSEA is administered by the Public Service Commission. Its purpose is to ensure that appointments to or from within the Public Service are based on selection according to merit, as determined by the Commission. Appointments are made by the Commission. A person appointed by the Commission is an employee in that part of the Public Service to which the Commission has appointed that person.
[26] Ms. Marinos was an employee of the Correctional Service of Canada. Ms. Marinos was appointed by the Commission.
[27] The fact that subsection 21.2(3) of the PSEA states that the other provisions of the Act do not apply to a person who is appointed under subsection (1) is not determinative of the issue before me since the other provision of the PSEA do not deal with collective bargaining or disciplinary grievances.
[28] Nor do I attach any legal significance to the statement in the offer of employment that was made to her, that she will not be entitled to file a grievance. Grievances, as opposed to appeals, are dealt with under the PSSRA.
[29] The PSSRA is administered by the Public Service Staff Relations Board. It is that Board and not the Commission that administers the PSSRA. This Act recognizes collective bargaining and the right to present grievances. For the purposes of this Act, the employer is, in the case of that portion of the public service of Canada specified in Part I of Schedule I, the Treasury Board, and in the case of any portion of the public service of Canada specified in Part II of Schedule I, the separate employer concerned.
[30] There is no question that Ms. Marinos was a person employed in the Public Service by reason of her appointment by the Commission. Unlike the persons concerned in the PSAC No. 13, she was appointed to the Public Service. Ms. Marinos therefore satisfies the opening words of the definition of an "employee" in subsection 2(1) of the PSSRA.
[31] The question to be resolved is whether she is no longer an "employee" for the purposes of the PSSRA by reason of any of the following exclusions, and, in particular, whether she was "a person employed on a casual or temporary basis".
[32] In my opinion, that is a question within the jurisdiction of the adjudicator to determine.
[33] The applicant does not challenge the adjudicator's findings of fact or the legal principles that the adjudicator relied on to determine the common law criteria for casual employment.
[34] The criteria, which have been developed and applied by labour relations boards to assess whether persons are casual, are well established.
[35] The essential basis for the employer's position that Ms. Marinos was not an employee within the meaning of the PSSRA was the fact that Ms. Marinos was appointed pursuant to section 21.2 of the PSEA. As Ms. Marinos was appointed under this section, the applicant argues that it must follow that she was employed on a casual basis within the meaning of the PSSRA.
[36] There is nothing in the scheme of Public Service employment legislation which would lead to a conclusion that, having been appointed pursuant to section 21.2 of the PSEA, a person is automatically excluded under the PSSRA. If Parliament had intended that employees would be excluded automatically when appointed under section 21.2 of the PSEA, Parliament could have easily done so by identifying the same limitation in the PSSRA or by incorporating section 21.2 of the PSEA.
[37] The main purposes of section 21.2 are to place specific limitations on the duration of such appointments and to exclude section 21.2 appointments from the full scope of PSEA protections as specified in subsection 21.2(3).
[38] The PSSRA, by contrast, approaches the issue of casual employment from a different perspective. As labour relations legislation, it is not so much concerned with the legal basis for employment but, rather, with the type of employee who may be subject to collective bargaining in the Federal Public Service.
[39] Finally, with respect to the issue of the heading and marginal note which refer to "casual employment" in connection with section 21.2 of the PSEA, whether or not the adjudicator applied appropriate principles of statutory interpretation was not determinative of the issue before her. The ratio of her decision in this regard was that the heading and marginal note regarding section 21.2 of the PSEA could not, by themselves, alter the meaning of "employee" as defined in the PSSRA. While section 21.2 provides specific time limitations on casual employment, it does not address the substantive nature of being employed on a casual basis within the meaning of the PSSRA.
Conclusion
[40] The adjudicator had the jurisdiction to determine the question before her. The decision of the adjudicator is not patently unreasonable, or, to use the words of Mr. Justice Cory in PSAC No. 24, is not clearly irrational. It is a decision which it was open to the adjudicator to make, in the circumstances, and is reasonable.
[41] Accordingly, the application for judicial review is dismissed.
__________________________
Judge
Ottawa, Ontario
April 9, 1998
__________________
1 R.S.C. 1985, c. P-33, as amended.
2 Canada (Attorney General) v. P.S.A.C., [1989] 2 F.C. 633 at 642 (C.A.) per Marceau J.A.
3 Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614.
4 Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963.
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