FPSLREB Decisions

[1]   On April 5, 2000, the Public Service Alliance of Canada (PSAC) referred to adjudication the following grievance filed by James Marta, as transmitted to his employer on August 12, 1999:

I grieve not having my contract renewed.
I believe that it is discipline in disguise.

[2]   Mr. Marta requested the following corrective action:

I want my contract to be renewed effective the date of expiry of my old contract.
I want all references to this grievance removed from my files.
I want this grievance to be heard at the first level.60

[3]   On November 15, 2000, Mr. Marta informed the Board that the PSAC would no longer be representing him and that he would be representing himself.

[4]   By letter dated November 20, 2000, counsel for the employer submitted that "an adjudicator lacks jurisdiction to hear this matter, as set out in s. 92 of the Public Service Staff Relations Act (the "PSSRA") ..it is submitted that the non–renewal of appointment for a person appointed for a specific period of time does not constitute discharge within the meaning of the PSSRA." An employee who is appointed for a specified period ceases to be an employee at the expiration of that period by operation of section 25 of the Public Service Employment Act (PSEA).

[5]   This argument was submitted to me as a preliminary objection at the outset of the hearing as stated in the employer's letter of November 20, 2000.

[6]   Mr. Marta was not aware that the employer had requested that the hearing be restricted to the issue of jurisdiction. He was notified of this by letter from the Board dated November 21, 2000, enclosing a copy of the employer's letter but he refused to sign for it at the Post Office. I explained to Mr. Marta that the hearing would be restricted to the issue of jurisdiction and that another hearing would be scheduled if the jurisdiction of an adjudicator appointed under the PSSRA to entertain this grievance was upheld.

[7]   The offer of employment sent to Mr. Marta by the employer on February 5, 1999 stated the following (Exhibit E–1):

On behalf of the Royal Canadian Mounted Police, we are pleased to offer you a specified period appointment to the above–mentioned position. Upon acceptance of this offer, your employment will commence at the start of business on 99–02–08 and terminate at the close of business on 99–08–06...

Nothing in this letter should be construed as an offer of indeterminate appointment, nor should you in any way plan on or anticipate continuing employment in the Public Service as a result of this letter.

. . .

[8]   Mr. Marta accepted this offer of employment on February 8, 1999, as it appears from Exhibit E–1.

[9]   On July 29, 1999, the employer notified Mr. Marta that his appointment would not be renewed and therefore his specified period appointment would terminate on August 6, 1999 (Exhibit E–2).

[10]   Counsel for the employer argued that Mr. Marta's "dismissal" does not constitute a "termination" pursuant to section 92 of the PSSRA. His employment came to an end as a result of the operation of the terms of his contract and not as a result of a decision made by the employer independent of the terms of the contract. Accordingly, it cannot be said that what has occurred is a "termination" as that word is used in section 92 of the PSSRA.

[11]   This interpretation was upheld in Hanna (Board file 166–2–26983) and maintained in Blackman (Board file 166–2–27139), Beaulieu (Board file 166–2–27313), Laird (Board file 166–2–19981) and Lecompte (Board file 166–2–28452).

[12]   The Federal Court of Appeal maintained this interpretation in James Francis Burchill v. Attorney General of Canada, [1981] 1 F.C. 109.

[13]   Counsel argued that Mr. Marta ceased to be employed by the operation of section 25 of the PSEA, and an adjudicator has no jurisdiction to give Mr. Marta a new contract.

[14]   Mr. Marta filed as an exhibit (Exhibit G–1) an e–mail from his supervisor, Mike Shaver, dated July 13, 1999, that he considered was a promise of a new contract. This e–mail reads as follows:

You are scheduled to receive a new Letter of Offer. You will notice that your new "contract" will be for 6 months, as opposed to a longer period for some of your peers. The reason for the discrepancy is the matter you and I recently discussed, during which I advised you that the best interests of the employee AND the employer must continually be met. That is my responsibility.

This is not a significant issue if we can resolve the matter alluded to above.

In the event that you wish further clarification, drop in and we'll talk.

[15]   Mr. Marta stated that he never received a letter of offer following the July 13, 1999 e-mail. He believes that the employer did not issue a new contract for disciplinary reasons.

[16]   In support of this allegation, Mr. Marta referred to several incidents. The first incident related to the day selected by the employer for the statutory holiday for Easter when Mr. Marta objected to a proposed change to a day off. As a result, Mr. Shaver indicated that Mr. Marta was not a team player. However, no reference to discipline was made at that time.

[17]   Following the July 13, 1999 e–mail (Exhibit G–1), Mr. Shaver met with Mr. Marta on July 20. Mr. Marta explained that they did not talk of his evaluation at that meeting.

[18]   Mr. Marta submitted that a mistake appeared on an e–mail dated July 14, 1999 (Exhibit G–3) with respect to the abbreviation to be used for the province of Manitoba and that the Territories were not included on that list. When he brought this to the attention of his supervisor, he was told that another worker would correct the mistake but in the meantime he had to apply the directive as it was. The mistake in the directive regarding the abbreviation for the province of Manitoba was corrected by e–mail on July 15, 1999 (Exhibit G–4) thereby putting an end to this incident.

[19]   The third incident related to the description of firearms. Mr. Marta wanted to change the description of a firearm when he noticed a mistake but he was told not to do so because it was not his responsibility. His supervisor made no reference to discipline at that time.

[20]   On July 12, 1999, Mr. Marta noticed that the Canadian flag that he had put up in front of his work station to commemorate Canada Day was gone.  E-mails were exchanged at that time (Exhibits G-5 to G-7) between the grievor and his supervisor and other employees. His supervisor notified him that "as much as it was not acceptable for someone to interfere with your property, I find your response a bit heavy handed" (Exhibit G-5). No disciplinary action was taken against the grievor and, again, no reference was made to the grievor about discipline.

[21]   On July 22, 1999, Mr. Marta came in to work but went back home sick because of a medical treatment to his leg. He did not return to work prior to the end of his contract on August 6, 1999.

[22]   The grievor took the opportunity that I offered him to take some time to read the book of authorities submitted by the employer. At the reopening of the hearing, he had no comment to submit to me.

[23]   Mr. Marta submitted that the employer's replies at the first and second levels of the grievance procedure (Exhibit G-8) are not accurate. He believes that he was dismissed for disciplinary reasons because the Self–Evaluation Follow-up (Exhibit G–10) prepared by his supervisor on June 17, 1999 was positive. The positive Self-Evaluation Follow–up was also in contradiction with the negative reply he received on June 14, 2000 after he applied for a position similar to the one that he occupied (Exhibit G–9).

[24]   Mr. Marta raised the question of the failure of summoned witnesses to appear at the hearing. I explained to Mr. Marta that it would be necessary for them to appear only if I reached the conclusion that an adjudicator has jurisdiction to entertain the grievance. If that occurred, the parties would be advised of a date for the continuation of the hearing. If I came to the conclusion that an adjudicator has no jurisdiction, my decision would terminate the matter without it being necessary to proceed to a hearing on the merits of the case.

Reasons for Decision

[25]   I have considered the employer's objection to an adjudicator's jurisdiction to entertain Mr. Marta's grievance, as well as the evidence adduced and the submissions of the parties and state the following.

[26]   The letter of offer (Exhibit E-1) from the employer stated that the position offered to Mr. Marta was for a specified period appointment from February 8 to August 6, 1999.

[27]   As in Hanna (supra), Mr. Marta's employment came to an end as a result of the operation of the terms of his contract and not as a result of a decision of the employer independent of the terms of the contract. Accordingly, it can not be said that what occurred was a "termination" as the word is used in section 92 of the PSSRA.

[28]   The Federal Court of Appeal came to the same conclusion in Dansereau v. National Film Board [1979] F.C. 100, which dealt with a term employee's cessation of employment. The Court concluded that the employee was not laid off, since the term of her employment had expired, and that her employment ceased by virtue of the terms of her employment contract. In the present case, I come to the conclusion that Mr. Marta's employment ceased by virtue of the terms of his employment contract and that the principles enunciated in the Dansereau decision apply to this case.

[29]   Although I do not believe that the employer's motivation in not renewing the grievor's employment is relevant to the determination of my jurisdiction in this case, nonetheless I am satisfied that the incidents which Mr. Marta relied upon are not disciplinary in nature. The employer never blamed Mr. Marta when those incidents occurred, nor did it impose discipline upon hiM. The employer did not warn Mr. Marta to change his behaviour or he would be disciplined. No discipline notice (verbally or in writing) was issued by the employer or a penalty imposed with respect to the incidents.

[30]   Those incidents are minor matters and Mr. Marta did not prove that those incidents were linked to the non–renewal of his contract.

[31]   Therefore, I conclude that an adjudicator appointed under the PSSRA does not have jurisdiction to hear and determine this matter. Accordingly, Mr. Marta's grievance is denied.

Léo-Paul Guindon,
Board Member

OTTAWA, March 29, 2001.