Date: 20040429
Docket: T- 831-02
Citation: 2004 FC 622
Ottawa, Ontario, this 29th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
JOHN SCHOFIELD
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant was appointed Consul and Senior Trade Commissioner at the Dusseldorf Consulate in 1998. In January 2001, in response to a complaint filed by locally engaged staff, his assignment was terminated and he was recalled to Canada. On March 17th, 2001, the applicant grieved this decision on the basis that he had been unjustly disciplined, resulting in a premature recall from his assignment. On June 11th, 2001, the Department concluded that the applicant's final level grievance was without merit.
[2] In an earlier grievance dated January 26th, 2001, the applicant had asked by way of a corrective measure to be cross posted in the summer of 2001 to a suitable position As a result of that grievance, prior to his anticipated return to Canada, the Department of Foreign Affairs (DFA) offered the applicant a posting as Trade Commissioner at the Consulate in Detroit (Detroit position) which he accepted. The Detroit position was at the same group level and rate of pay, and attracted the same Foreign Service Premium (FSP), as the Dusseldorf position. However, the new position has a lesser title and the applicant has no supervisory responsibility over staff. The applicant accepted the Detroit position without prejudice to his right to pursue his March 17th, 2001 grievance.
[3] While the grievance process was ongoing and before he took up the new position, the applicant took several weeks of sick leave. The applicant submits that he was forced to take the leave as a result of the removal process.
[4] As he was not satisfied with the outcome of the internal grievance process, the applicant referred the grievance for Adjudication to the Board pursuant to section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA). At the hearing before the Board, key pieces of evidence were admitted by joint consent. In addition, the Adjudicator heard preliminary remarks and opening statements from both parties. Based upon the evidence before her and these oral arguments, the Adjudicator concluded that she was without jurisdiction to consider the grievance.
[5] In reasons dated May 7th, 2002, she decided as follows:
Even if it could be argued that the early termination of the grievor's assignment can be viewed as disciplinary action (and this would be a heavy onus on the grievor to demonstrate), in view of the employer's right to manage the office, assign duties and take the appropriate administrative measures, there remains that the financial penalty alleged by the grievor (i.e. sick leave) is, prima facie at least, not a financial penalty but a type of leave which, in addition, has occurred after the grievance. Assuming an argument could be made that in this particular case the sick leave taken by the grievor should be deemed to constitute a financial penalty (and this too is a very heavy onus to bear), the fact remains that it occurred several months after the grievance. I believe that this prevents the grievor from arguing that, at the time of signing the present grievance, he had incurred disciplinary action resulting in financial penalty. Therefore, even if the facts as alleged and presented to me by the grievor's representative were proven, the conclusion that there did not exist a financial penalty at the time of the grievance would remain the same. In addition, the grievance itself neither alleged a financial penalty nor mentioned it in the corrective action requested nor was any request made to amend the grievance. As for the argument that the Detroit posting is a demotion, I agree with the argument made by counsel for the employer.
For all these reasons, this grievance is dismissed for want of jurisdiction.
ISSUES
[6] To determine whether the Adjudicator was correct in concluding that she had no jurisdiction to continue with the hearing the following two issues need to be decided:
1. Did the Adjudicator err in concluding that the sick leave or the potential loss of the applicant's FSP did not constitute financial penalties pursuant to section 92(1)(b)(I) of the PSSRA?
2. Did the Adjudicator err in concluding that the applicant was not subject to a demotion pursuant to section 92(1)(b)(ii) of the PSSRA?
RELEVANT LEGISLATION
[7] Pursuant to section 91 of the PSSRA, an employee may grieve an employer's decision at all possible grievance levels pursuant to the procedures set out in that Act. If the grievance remains unresolved, the employee may then use the procedures set out in section 92. That section provides as follows:
| Reference of grievance to adjudication
92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(I) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
©) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
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.
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Renvoi d'un grief à l'arbitrage
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 portant sur:
a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale;
b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire.
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[8] Subsections 11(2)(f) and (g) of the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA) provide:
| Powers and functions of Treasury Board in relation to personnel management
(2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10,
(f) establish standards of discipline in the public service and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct, and the circumstances and manner in which and the authority by which or whom those penalties may be applied or may be varied or rescinded in whole or in part;
(g) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed in the public service, and establishing the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;
(g.1) provide for the termination of employment of an employee to whom an offer of employment is made as the result of the transfer of any work, undertaking or business from a portion of the public service specified in Part I of Schedule I to the Public Service Staff Relations Act to any body or corporation that is a separate employer or that is outside the public service, and establish the terms and conditions under which, the circumstances and manner in which and the authority by which or by whom that termination may be made or may be varied or rescinded in whole or in part;
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Gestion du personnel
(2) Sous réserve des seules dispositions de tout texte législatif concernant les pouvoirs et fonctions d'un employeur distinct, le Conseil du Trésor peut, dans l'exercice de ses attributions en matière de gestion du personnel, notamment de relations entre employeur et employés dans la fonction publique:
f) établir des normes de discipline dans la fonction publique et prescrire les sanctions pécuniaires et autres y compris le licenciement et la suspension, susceptibles d'être appliquées pour manquement à la discipline ou pour inconduite et indiquer dans quelles circonstances, de quelle manière, par qui et en vertu de quels pouvoirs ces sanctions peuvent être appliquées, modifiées ou annulées, en tout ou en partie;
g) prévoir, pour des raisons autres qu'un manquement à la discipline ou une inconduite, le licenciement ou la rétrogradation à un poste situé dans une échelle de traitement comportant un plafond inférieur des personnes employées dans la fonction publique et indiquer dans quelles circonstances, de quelle manière, par qui et en vertu de quels pouvoirs ces mesures peuvent être appliquées, modifiées ou annulées, en tout ou en partie;
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STANDARD OF REVIEW
[9] Pursuant to the pragmatic and functional test, the Court is directed to consider four factors in determining the appropriate standard of review:
1. the presence or absence of a privative clause or statutory right of appeal,
2. the relative expertise of the tribunal and the Court,
3. the purpose of the statute and
4. the nature of the question.
In this case, there is neither a privative clause nor a statutory right of appeal, favouring neither a high nor low level of deference. While the Board generally has a relatively high level of expertise (Public Service Alliance of Canada v. National Capital Commission, [1997] F.C.J. No. 1418), favouring a high level of deference, the provisions in question are aimed at the resolution of conflict between the government and one individual and all of the issues involve questions of law, an area in which the Board has no particular expertise. As a result, a relatively low level of deference should be given to the Board's decision and the appropriate standard of review is correctness.
Issue 1: Did the Adjudicator err in concluding that the sick leave or the potential loss of the applicant's FSP did not constitute financial penalties pursuant to section 92(1)(b)(I) of the PSSRA?
[10] Pursuant to section 92 of the PSSRA, an Adjudicator's authority is limited to considering a grievance which formed part of the internal grievance procedures. As stated by Thurlow then C.J. with regards to then section 91(1) of the PSSRA in Burchill v. Canada (Attorney General), 37 N.R. 530 (F.C.A.) at paragraph 5:
.....it was not open to the applicant, after losing at the final level of the grievance procedure the only grievance presented, either to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance complaining of disciplinary action leading to discharge within the meaning of subsection 91(1)...... In our view the applicant having failed to set out in his grievance the complaint upon which he sought to rely before the Adjudicator, namely, that his being laid off was really a camouflaged disciplinary action, the foundation for clothing the Adjudicator with jurisdiction under subsection 91(1) was not laid. Consequently, he had no such jurisdiction.
[11] In this case, the applicant's Grievance Presentation described the grievance as follows:
I grieve that I have been unjustly disciplined for alleged misconduct that has resulted in my being prematurely recalled from my assignment in Dusseldorf.
[12] The corrective action requested was:
- That the decision to recall be rescinded.
- That all matters related to this issue be removed from my file.
[13] At no point did the applicant mention suffering any financial penalty, such as the potential loss of a FSP. In addition, the applicant failed to amend his grievance in order to address the sick leave after it was taken in May and July of 2001. As the Adjudicator's jurisdiction is determined by the terms of the initial grievance, she did not err in concluding that she was without jurisdiction to consider the grievance pursuant to section 92(1)(b)(I) of the PSSRA, after all there is no reference to financial penalty in the March 17th, 2001 grievance.
Issue 2. Did the Adjudicator err in concluding that the applicant was not subject to a demotion pursuant to section 92(1)(b)(ii) of the PSSRA?
[14] The applicant submits that the Adjudicator failed to provide a sufficient explanation as to why the Department's actions did not constitute a demotion. In addition, it is submitted that the Adjudicator failed to consider whether or not the applicant had experienced a demotion pursuant to section 11(2)(f) or (g) of the FAA.
[15] In her Reasons at page 4, the Adjudicator stated that she had accepted the respondent's arguments as to why the Detroit posting was not a demotion. At page 3, these arguments were summarized as follows:
Counsel for the employer summarized his argument by saying that since no financial penalty could be established, the case should come to a shuddering halt. He also stated that there could not be a demotion without loss of pay, that demotion was not alleged in the grievance and that the griever ought not now be allowed to create a difference grievance.
[16] But more to the point, as with the financial penalty discussed above, the applicant had failed to allege during the internal grievance procedure that he had been demoted following his removal from the Dusseldorf position. His grievance was, rather, concerned with his premature removal from the posting and with the mark which it may have left on his professional record. Therefore, the applicant's arguments are without merit with regards to both subsections 11(2)(f) and (g) of the FAA. The Adjudicator was correct in determining that the issue of a demotion had not been raised in the original grievance, and that, as a result, she had no jurisdiction to entertain it.
CONCLUSION
[17] This application is, therefore, dismissed. The adjudicator was correct in finding that she had no jurisdiction in this matter.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-831-02
STYLE OF CAUSE: JOHN SCHOFIELD
v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: APRIL 26, 2004
REASONS FOR ORDER and ORDER: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
DATED: APRIL 29, 2004
APPEARANCES:
SOLICITORS OF RECORD:
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