Date: 20000125
Docket: T-66-99
BETWEEN:
DAVID ELMORE
Applicant
AND:
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of Deployment Investigator D. Ronald Franklin dated December 8, 1998, wherein he held that he did not have jurisdiction to deal with the complaint filed by the applicant since the action taken by the Department of Public Works and Government Services did not constitute a deployment.
[2] The applicant, David Elmore, is employed by Public Works. In November of 1987, he was appointed to the position of Civil Technologist at the EG-6 group and level located in Winnipeg, Manitoba (his "substantive position"). On September 8, 1995, the applicant entered into an eighteen month Secondment Agreement from his position to take up the duties of a Project Officer at the Department of Indian and Northern Development (DIAND) Technical Services, a division of Public Works which provided services exclusively to DIAND. The agreement provided that during the period of secondment, which commenced on September 6, 1995, and terminated on March 31, 1997, he would perform duties that were classified at the same group and level as his position of an EG-6.
[3] During the period covered by the agreement, Public Works reorganized its structure with the objective of improving service to clients. It created a new Real Property Services (RPS) Branch which replaced the branch in which Mr. Elmore's substantive position had been located. The new structure included Client Service Units ("CSUs") dedicated to the requirement of particular client departments. The New RPS plan called for specialized employees to form pools of resources from which they could be assigned to various CSUs. A specific CSU was created for DIAND which, by this time, was known as Indian and Northern Affairs Canada ("INAC").
[4] On June 12, 1997, Ralph Gienow, the Regional Director of the Architectural and Engineering Section of Public Works, wrote to the applicant to confirm that his substantive position had been integrated into the new organization as part of the Architectural and Engineering Resources ("A & E Resources") Group.
[5] Mr. Elmore remained with DIAND Technical Services after the expiration of the secondment agreement. Commencing in April of 1997, he made several enquiries of Public Works management regarding his substantive position and the duration of his assignment. On October 30, 1997, the applicant sent an electronic mail message to Mr. Gienow complaining of the fact that his secondment had ended but that he nevertheless continued to work within the DIAND Technical Services Unit, contrary to the terms of the secondment agreement.
[6] In response, by letter dated November 19, 1997, Mr. Gienow informed the applicant of the new RPS structure and advised him that his substantive position had been integrated into this new organization and had been identified as a core position reporting to the Regional Manager, Architectural and Engineering Services Resources. The letter stated, in part as follows:
| At this time, you are assigned to the INAC Client Service Unit in Winnipeg and you will receive your day-to-day directions from the Client Service Unit Director. As discussed, we will review this assignment over the next few weeks. |
[7] On February 12, 1998, Mr. Elmore sent a written request that he be returned to his substantive position by May 1, 1998. He was informed by his supervisor that due to workload requirements in the INAC Client Service Unit, he would be required to continue the assignment until further notice. The applicant subsequently reiterated his request by letter dated March 27, 1998.
[8] Thereafter, on April 22, 1998, Mr. Elmore filed an internal grievance, alleging that the failure to return him to his substantive position was a violation of the secondment agreement and contrary to a commitment made by the former Regional Director. The grievance was denied at first level. The Director of the INAC Client Service Unit stated that the applicant had been informed in June of 1997 that as part of the restructuring of the Real Property Services Branch of Public Works, all positions had been pooled into a specific core of human resources from which individuals could be loaned out or assigned as required. Since the applicant's services as a Civil Technologist were still required at INAC he could not be returned to the resource core in Winnipeg at that time. Mr. Elmore's internal grievance was subsequently denied at the second and third levels of review as well.
[9] On May 25, 1998, the applicant filed a Deployment Investigation Request with the Public Service Commission. The matter was referred to a deployment investigator pursuant to the provisions of Part III.1 of the Public Service Employment Act, R.S.C. 1985, c. P-33.
[10] The investigation was heard on October 29, 1998, in Winnipeg, Manitoba by Deployment Investigator Franklin. By decision dated December 8, 1998, the investigator held that the assignment of Mr. Elmore by the Department of Public Works did not constitute a deployment and that he did not have jurisdiction to investigate the complaint. His reasons for so finding are stated at pages 5-6 of his decision as follows:
| ... I am not persuaded that any infringement of the Act occurred in Mr. Elmore's case. The type and level of duties described in Mr. Elmore's existing (but outdated) job description, and the skills, knowledge and abilities utilized in the performance of those duties, are not sufficiently disparate from those of his assignment to suggest that he was performing a new or different job as a Project Manager at DIAND. Furthermore, I am of the opinion that an assignment to a Client Service Unit at a different street address within the same city does not constitute a change in location that would violate the terms and conditions of Mr. Elmore's substantive position, particularly in view of the fact that such assignments are fundamental to the work to be performed by employees in the department. |
| It is clear that Mr. Elmore was not happy with his assignment, and he made that fact known on several occasions, culminating in a grievance and a deployment complaint. Although the period during which he was to serve in INAC continued well beyond his original expectations, there is no evidence to suggest that it became, or would have become, an indeterminate appointment to a new position. |
| For all of the foregoing reasons, I must conclude that Mr. Dave Elmore's work assignment was not a deployment. Therefore I have no jurisdiction |
[11] The applicant now seeks to have the Investigator's decision set aside on the grounds that he erred in finding that the work assignment was not a deployment and that he accordingly did not have jurisdiction to deal with the matter. It is submitted that the Deployment Investigator misunderstood the question before him and that in determining whether or not the applicant had been deployed, the only question which the investigator should have considered was whether the applicant had been laterally transferred from his substantive position to the position at DIAND. The applicant maintains that in order to prove that the DPW's action constituted a deployment as defined by the Public Service Employment Act, it was not necessary for him to show that the position within DIAND-INAC required a different set of skills and abilities than those required to perform his substantive position.
[12] The respondent submits that at all relevant times, during the term of the secondment agreement and thereafter, the applicant was assigned from his substantive position to the Project Officer position with INAC. That assignment, it is argued, was not transformed into a deployment, whether by the expiry of the secondment agreement, by the continuation of the assignment with or without the agreement of the applicant, by the reorganization of Public Works and the integration of his substantive position into the new Real Property Services Branch, or by any other actions of Public Works.
[13] After giving careful consideration to the written submissions and oral arguments of the parties at the hearing before me, I am dismissing the application for the following reasons.
[14] Deployments are dealt with in the Public Service Employment Act as follows:
| 2.(1) "deployment" means the transfer of an employee from one position to another;
34.1(1) Except as provided in this Act or any other Act, a deputy head has the exclusive right and authority to make deployments to or within that part of the Public Service over which the deputy head has jurisdiction.
(2) Deployments may be made within occupational groups and, when authorized by the regulations of the Commission, between occupational groups.
(3) Unless some other period is specified, a deployment is for an indeterminate period.
34.2(1) Deployments shall be made in such manner as the Treasury Board may direct.
(2) No employees shall be deployed in a manner that results in a promotion or a change in the tenure of office of that employee.
(3) No employee shall be deployed without the consent of the employee, unless an agreement to being deployed is a term or condition of employment of the employee's current position.
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2.(1) "mutation" Affectation d'un fonctionnaire à un autre poste.
34.1(1) Sauf disposition contraire de la présente loi ou de toute autre loi, l'administrateur général a le droit exclusif de muter au secteur relevant de sa compétence des fonctionnaires en provenance de l'extérieure ou de procéder à des mutations au sein de ce secteur.
(2) Les mutations peuvent s'effectuer à l'intérieur des groupes professionnels et, dans les cas prévus par règlement de la Commission, entre ces groupes.
(3) Sauf précision contraire, les mutations se font pour des périodes indéterminées.
34.2(1) Les mutations sont effectuées selon les modalités fixées par le Conseil du Trésor.
(2) Aucune mutation nen peut avoir pour résultat la promotion du fonctionnaire ou la modification de la durée de ses fonctions.
(3) Aucune mutation ne peut être effectuée sans le consentement du fonctionnaire, sauf si l'acceptation d'être muté fait partie des conditions d'emploi de son poste actuel.
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[15] Although an assignment is not defined in the legislation, the jurisprudence has established that it is a temporary move of an employee, within a government department, to perform the duties of an existing position or to carry out a special project. While on assignment, an employee retains his or her substantive position and performs duties as the same group and level. The employee does not acquire tenure in the position to which he or she is assigned but rather is expected to return to his or her original position. The process of assignment has been recognized by the Courts as an acceptable management tool within the Public Service. In Roberts v. Canada (unreported, A-407-97, March 9, 1999), the Federal Court of Appeal made the following comments with respect to assignments:
| It is true that the process of assignment is nowhere defined in the Act or in the Regulations, but there is no doubt in our mind that such process is a legitimate and inherent management device already recognized by the courts and implicitly affirmed in amendments made to the Act and the Regulations in 1993. It goes without saying, in our view, that a department may move an employee from one position to another, on a temporary basis, without having to "deploy" him... If no right of appeal is granted where an employee is deployed, i.e. where an employee is moved from one position to another and gains incumbency in the position to which he is deployed and therefore assumes the classification level of the other position, a fortiori can it be assumed that no right of appeal is granted where an employee is merely assigned, i.e. where he is moved temporarily from one position to another, does not gain incumbency in the position to which he is assigned, does not assume the classification level of that other position and is expected to return to the original position. |
| At the end of the day, an appeal board must ask itself whether in staffing a position on a temporary basis, the administration has exceeded the limits of reasonable flexibility and has in fact attempted to avoid the observance of the merit principle. The factors to be examined by the Appeal Board are particularly ...i) is the assignment of such significant and indefinite duration to be presumed to place the occupant of the position at a distinct advantage in any subsequent selection process and ii) has there been such a significant or substantial change in function requiring additional or special qualifications such that the assignment is tantamount to new position. |
[16] In the case at bar, the evidence is clear that between September 6, 1995 and March 31, 1997, Mr. Elmore was on assignment from his substantive position to DIAND Technical Services. The secondment agreement which he executed on September 8, 1995, bore all of the indicia of an assignment insofar as:
| (a) the transfer was for an eighteen month period and therefore temporary; |
| (b) the agreement contemplated that at the end of the period of secondment, the applicant would return to his substantive position; |
| (c) the applicant retained his substantive position, continued to receive all pay, benefits and conditions applicable to that group and level, and did not acquire tenure in the position to which he was assigned; and, |
| (d) the applicant performed duties for INAC at the same group and level as his substantive position. |
[17] Following the expiration of the secondment period, Mr. Elmore remained with the INAC CSU on assignment. Notwithstanding the absence of a new written agreement, the record clearly establishes that he remained there at the request of Public Works on the understanding that he would return to his substantive position in the future. At no time did the applicant acquire tenure or incumbency with INAC or the INAC CSU. Although he would have preferred to return to his substantive position after the secondment agreement expired, a preference which he communicated to his Regional Director at Public Works, the applicant accepted the continuation of his assignment and after discussing the reorganization and the integration of his substantive position, acknowledged that his assignment would continue pending a review in a few weeks. At that time, Mr. Elmore agreed to remain on assignment until the organization could deal with the ERI packages for other employees in the Real Property Section.
[18] Furthermore, I am not persuaded that the reorganization of the RPS branch and the integration of the applicant's position into the new structure gave rise to a deployment. Quite simply, there was no transfer from one position to another. It is clear that both Mr. Elmore and his Regional Director understood that the applicant would either return to his substantive position or be re-assigned to a different position. There is nothing in the evidence to suggest that the applicant was at any time separated from his substantive position and given incumbency with INAC or the INAC CSU. The continuation of his assignment beyond the period specified in the secondment agreement did not have the effect of transforming Mr. elmore's assignment into a deployment. On the contrary, he retained his substantive position with the Department, continued to receive all the pay and benefits associated with that position and was expected to return to that position when the assignment ended.
[19] I am satisfied that the Investigator was correct when he concluded that although the period in which the applicant was to serve in INAC extended well beyond his original expectations, there is nothing to suggest that it became, or would have become, an indeterminate appointment to a new position. Mr. Elmore was not transferred to INAC and did not become a permanent employee of either INAC or the CSU. Accordingly, there was no deployment. His objections to the continuation of the assignment cannot change the fact that he nevertheless remained on assignment. Although departments may strive to avoid placing persons on assignment or secondment without securing their consent, there is no express requirement that such consent be obtained.
[20] For all of these reasons, I conclude that the Deployment Recourse Investigator did not err in concluding, on the basis of the evidence before him, that there had been no deployment and that he therefore had no jurisdiction to deal with the matter. Accordingly, the application is dismissed.
JUDGE
OTTAWA, Ontario
January 25, 2000
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