T-761-96
BETWEEN:
HER
MAJESTY THE QUEEN,
represented
by the Treasury Board,
Applicant,
-
and -
MARIO
RINALDI,
Respondent,
-
and -
MARGUERITE-MARIE
GALIPEAU, in her capacity as an Adjudicator
selected
pursuant to paragraph 95(2)(c)
of
the Public Service Staff Relations Act,
R.S.C.,
1985, c. P-35,
Mis-en-cause.
REASONS
FOR ORDER
NOËL J.
The
applicant is seeking an order prohibiting the Adjudicator selected pursuant to
the Public Service Staff Relations Act
from hearing and adjudicating the respondent’s grievance on the ground that she
lacks jurisdiction to do so.
I FACTS
The
facts as presented by the applicant in her memorandum are not in dispute.
Following a major reorganization at the Canadian Space Agency, the respondent
was told on September 6, 1995 that the position he held had been abolished. As a
result of that decision, the respondent was given notice that he would be
declared surplus for the period from November 8, 1995 to May 7, 1996 and that
he would be laid off at the end of that period if he had not found another
position in the public service.
Dissatisfied
with the decision, the respondent presented a grievance to his employer under
section 91 of the Public Service Staff Relations Act. His grievance
read as follows:
I grieve management's decision to
terminate my employment.
Under
the heading Corrective Actions Requested on the grievance form, the
respondent asked:
·That I be re-instated in my position
of Vice President, Corporate Services, or in a comparable position;
·That I be compensated for all
damages and financial penalties;
·That the Canadian Space Agency
and other federal government organizations take appropriate actions in an
attempt to alleviate damages done to my reputation, or any action as required.
On
November 29, 1995, the respondent was told that he could submit written or oral
representations concerning his grievance, but he elected to add nothing.
On
December 15, 1995, the respondent’s grievance was dismissed for the sole reason
that the decision to lay him off was made in conformity with section 29 of the Public
Service Employment Act.
Dissatisfied
with this decision, the respondent referred his grievance to adjudication under
section 92 of the Public Service Staff Relations Act, and Adjudicator Galipeau
was selected pursuant to paragraph 95(2)(c) of that Act.
A
few days before the hearing of the grievance, the applicant, through her
counsel, notified the Public Service Staff Relations Board that she intended to
object to the Adjudicator’s jurisdiction on the ground that the decision to
terminate the respondent’s employment had been made under the Public Service
Employment Act, which, according to subsection 92(3) of the Public
Service Staff Relations Act, barred a referral to adjudication.
The
hearing of the grievance commenced on April 1, 1996. Following the parties’
representations on the applicant’s preliminary objection, the Adjudicator
decided that she had jurisdiction to hear the grievance in so far as the
respondent satisfied her that his lay-off was a subterfuge to terminate his
employment.
She therefore decided to pursue the hearing. When the hearing resumed the next
morning, counsel for the employer advised the Adjudicator of his intention to
apply for a writ of prohibition against that decision. The Adjudicator
accordingly adjourned the hearing. She also agreed to prepare a written
version of the oral decision she had rendered at the hearing the previous day.
Her decision reads as follows:
If you establish that the
termination of the employment was not a genuine layoff but rather a decision
made in bad faith, a ruse, a disciplinary dismissal in disguise, then I would
be willing to say that subsection 92(3) of the Public Relations [sic]
Staff Relations Act does not prevent me from having jurisdiction. I would
therefore be willing to hear your witnesses.
IIPOSITIONS OF
THE PARTIES
The
applicant submits, first, that the respondent cannot alter the substance of his
grievance by alleging for the first time before the Adjudicator that his
lay-off was a disguised disciplinary dismissal carried out in bad faith.
Second, the applicant submits that in any event, the Adjudicator lacks
jurisdiction to determine the respondent’s grievance because the purpose of the
grievance was to challenge a lay-off under section 29 of the Public Service
Employment Act.
The
respondent submits that the failure to mention the relevant statutory
provisions in his grievance or to use the exact wording that appears in the
statute does not bar it. He further submits that the sole purpose of the
evidence he intends to adduce before the Adjudicator is to define the exact
scope of the grievance and that no alteration is contemplated. The respondent
concedes that a lay-off within the meaning of section 29 of the Public
Service Employment Act is outside the Adjudicator’s jurisdiction. However,
he submits that the disguised dismissal he intends to prove is clearly within
the jurisdiction conferred on the Adjudicator by section 92 of the Public
Service Staff Relations Act.
III ANALYSIS AND DECISION
To
qualify for adjudication, the respondent must satisfy the requirements of
subsection 92(1) of the Public Service Staff Relations Act, the relevant
portions of which read as follows:
92(1) Where an employee has
presented a grievance, up to and including the final level in the grievance
process, with respect to
. . .
(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,
. . .
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.
Paragraphs
11(2)(f) and (g) of the Financial Administration Act read as follows:
11(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. . . .
Thus,
to qualify for adjudication, the respondent must prove either a disciplinary
action resulting in suspension or a financial penalty, or a termination of
employment or demotion pursuant to the Financial Administration Act.
Furthermore, subsection 92(3) of the Public Service Staff Relations Act
provides that a grievance with respect to a termination of employment under the
Public Service Employment Act cannot be referred to adjudication.
Bearing
this statutory context in mind, the applicant submits that the case at bar
raises two questions of law: whether the respondent could alter his grievance
once it was before the Adjudicator and whether an adjudicator has jurisdiction
to hear a grievance when the employer relies on the abolishment of a position
under section 29 of the Public Service Employment Act as the reason for
termination.
This
second question can be answered easily. In my view, there is no question that,
according to the hypothesis on which the Adjudicator based her decision, she
was perfectly right to find that she has jurisdiction to hear and decide the
grievance. As Marceau J.A. said in Attorney General of Canada v. Penner:
A camouflage to deprive a person
of a protection given by statute is hardly tolerable.
Contrary
to the applicant’s submission, no statutory amendment has limited this
principle. The addition to the Public Service Staff Relations Act of
subsection 92(3), which bars the adjudication of a grievance with respect to a
termination of employment under the Public Service Employment Act, does
not remove jurisdiction from the Adjudicator solely because such a termination
of employment is relied on by the employer. Subsection 92(3) clearly bars a
referral to adjudication only where there was in fact a termination of
employment under that Act. The hypothesis on which the Adjudicator based her
decision in fact concerns a situation in which an employer disguises an
unlawful dismissal under cover of the abolishment of a position through a
contrived reliance on that Act. Such a situation would clearly fall within the
jurisdiction conferred on adjudicators by paragraph 92(1)(b) of the Public
Service Staff Relations Act.
However,
I must say that the hypothesis adopted by the Adjudicator is not likely to be
easy to prove. The respondent’s assertion that he can prove his employment was
not terminated under the Public Service Employment Act when the employer
is relying on section 29 of that Act is far from obvious. A reorganisation
under subsection 29(1) takes place when restraint measures (which are easily
proven) result in the abolishment of positions (which are once again easily
proven). If the reorganization that results in the abolishment is not
challenged and/or a de facto abolishment of positions occurs, it is hard to
imagine how the resulting lay-offs can have been effected otherwise than as a
result of the discontinuance of functions within the meaning of section 29.
This
is just as true if the respondent can prove a turbulent employment
relationship. He would then also have to show that the employer’s reliance on
section 29 is contrived.
While such evidence cannot be excluded at the conceptual level, it is hard to
imagine how the respondent would be able to establish it. Nonetheless, since
this is the hypothesis adopted by the Adjudicator for the purposes of her
decision and since the possibility it confirms cannot be entirely ruled out, I
consider myself bound by it for the purposes of this judicial review. I must
therefore find that the Adjudicator was right to assume jurisdiction subject to
the respondent’s ability to prove his assertion.
Concerning
the first question, the applicant points out that the respondent’s grievance
was as brief as it was laconic; he merely challenged the employer’s decision to
abolish his position and lay him off. He made no allusion to a disguised
dismissal.
The
respondent states that his grievance challenged the decision to “terminate” his employment. He
stresses the fact that his grievance asked that any necessary action be taken
to alleviate the damage done to his reputation. According to him, a
person’s reputation cannot be damaged if his or her employment is terminated
due to factors beyond anyone’s control, such as a shortage of work. However, a
person’s reputation can be damaged if he or she is unlawfully dismissed, as the
respondent claims to have been. Finally, the respondent submits that if the
applicant misunderstood the grievance when it was made, she cannot hold it
against him today.
The
importance of the wording of a grievance lies in the fact that the allegations
made in it have the effect of attributing jurisdiction. Since the adjudication
procedure provided for in the Public Service Staff Relations Act follows
on a conciliation process, only those grievances that have been presented at
all the levels provided for in the Act can be referred to adjudication. It follows that an
employee cannot change the nature of his or her grievance once it is before an
adjudicator, as the effect of doing so would be to submit a grievance to
adjudication that has not been presented at all the levels of conciliation
provided for in the Act. In my view, that is what led Thurlow C.J. to say the
following in Burchill v. A.G. of Canada:
In our view, 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). Under that provision it is only a grievance that has been presented and
dealt with under section 90 and that falls within the limits of paragraph
91(1)(a) or (b) that may be referred to adjudication. 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.
It
should be mentioned that it was clear in Burchill that the grievance the
employee had tried to present before the adjudicator was a new grievance
unrelated to the original one.
In
Perreault v. Treasury Board (Transport Canada), the employer relied on Burchill
to try to have a grievance dismissed on the ground that the allegation of bad
faith, which was made for the first time before the adjudicator, had the effect
of transforming the original grievance into a new grievance. Adjudicator
Tenace disposed of this argument as follows:
Counsel for the employer also
submitted that the grievor had referred a new grievance to adjudication
inasmuch as the grievor was alleging bad faith for the first time at
adjudication. In my opinion, the grievor’s meaning and intention have been
reasonably clear throughout. He believes that he was not given a “fair shake”
during his training period and he felt that management wanted to get rid of him.
This becomes quite clear when one reads the lengthy attachment which the
grievor wrote to accompany his grievance. In my opinion, the facts do not mesh
with the reasoning expressed in Burchill (supra) and it has no
application to the instant case.
Thus,
the adjudicator concluded that the allegation of bad faith did not change the
nature of the grievance. According to him, the employee’s position had been
reasonably clear throughout the process. Even though the allegation of bad
faith was not formally stated until adjudication, it added nothing new to the
grievance and did not change its nature.
In
the case at bar, it is primarily on the basis of the wording of the
respondent’s grievance that the Court must determine whether the allegation he
made at adjudication so altered his original grievance as to change its nature
and make it a new grievance. For this purpose, it should be noted that the
respondent’s original grievance challenged the decision to “terminate” his
employment, asked that he be reinstated in his position or a comparable
position with compensation for damage and financial losses and that appropriate
action be taken to alleviate the damage his dismissal had done to his
reputation.
It
is therefore reasonable to infer from this grievance that the respondent was
challenging the employer’s right to terminate his employment and was claiming
the right to be reinstated in his former position or a comparable position with
compensation, and that he considered his reputation to have been sullied by his
dismissal.
On
its face, this grievance could be based on any ground of unlawfulness, since no
cause of unlawfulness is specified. The only question is therefore whether the
respondent gave his employer sufficient notice of the exact nature of his
grievance. The affidavit filed by the respondent in this matter indicates that
at the same time as his first grievance against his employer, he presented a
second, in which he stated the following:
Further to an investigation report
received October 25, 1995, I grieve the Canadian Space Agency's management's
continuing disciplinary actions to present me with a written reprimand, to
remove me from my functions and to abolish my position of Vice-President,
Corporate Services.
When
considered in combination with the first grievance, this one leaves no doubt as
to the respondent’s exact position in the case at bar. In his opinion, both
the abolishment of his position and his lay-off constituted disciplinary action
taken by the employer without justification and unlawfully. Accordingly, it
cannot be said that the respondent’s employer was not given sufficient notice
of the nature of his grievance in the course of the conciliation process or
that he so altered his grievance at adjudication as to change its nature and
make it a new grievance.
For these reasons, the motion is
dismissed.
Marc Noël
Judge
Ottawa, Ontario
February 25, 1997
Certified true translation
Stephen Balogh
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