FPSLREB Decisions

I. Individual grievances referred to adjudication

1 I am seized of two grievances filed by Haiyan Zhang (“the grievor”). In her first grievance, dated May 2, 2006, she challenges the termination of her employment, which occurred on April 13, 2006. That grievance was referred to adjudication on October 26, 2006, and was the subject of two referrals by the grievor’s bargaining agent: one that contested only the termination issue (PSLRB File No. 566-02-603), while the second referral contested the employer’s application of article 64 (Pay administration) of the collective agreement (PSLRB File No. 566-02-602). While the grievance was therefore the subject of two referrals to adjudication, they nonetheless refer to one grievance only, and for the purpose of this decision, I will not distinguished between the two referrals to adjudication. The grievor filed a second grievance on May 11, 2006, in which she challenges the cancellation of her reliability status, which occurred on April 18, 2006. That grievance was referred to adjudication on September 29, 2008 (PSLRB File No. 566-02-2358) and was joined by the Board to the termination grievance. 

2 These grievances are linked with another grievance filed in 2003, in which the grievor challenged her termination of employment from the Privy Council Office (PCO) on November 28, 2003. That grievance was referred to adjudication, and Ian R. Mackenzie issued a decision on December 8, 2005 (2005 PSLRB 173).

3 The circumstances that led to the original termination and to adjudicator Mackenzie’s order are relevant to understanding the context within which the grievances of May 2 and May 11, 2006, were filed.  

4 In 2003, the grievor, who at that time held the position of Senior Communications Advisor at Industry Canada, was recruited by the employer to work as a senior analyst in its Communications and Consultations Secretariat. Although her position was classified IS-05, she was immediately appointed to an acting IS-06 position.

5 The PCO, like any other department of the federal public service, is governed by the Government Security Policy, which provides that employees who require access to government assets must possess a reliability status and that employees who possess a valid reliability status and require access to classified information and assets must also have a valid security clearance. There are three security clearance levels: Confidential, Secret and Top Secret. A department may grant a security clearance after a security assessment is successfully completed by the Canadian Security Intelligence Service (CSIS).  

6 On her arrival at the PCO, the grievor was granted a Secret security clearance. Her original and her acting positions each required a security clearance of Secret. This meant that she was restricted in her work from having access to Top Secret material and at the request of the employer, she completed a security screening form to have the CSIS perform a security assessment for a Top Secret security clearance.

7 The CSIS security assessment identified adverse information about the grievor’s loyalty to Canada. Based on that assessment, the Clerk of the Privy Council denied her a Top Secret security clearance and revoked her Secret security clearance, which was a mandatory requirement for employment at the PCO. The Clerk of the Privy Council also decided that he could not recommend her for employment elsewhere in the federal public service. As a result of the loss of her security clearance, the grievor’s employment was terminated on November 28, 2003. The grievor filed a complaint with the Security Intelligence Review Committee challenging the Privy Concil Clerk’s decision concerning her security clearance. Her complaint was dismissed on March 4, 2005, based on the Chairperson’s conclusion that there were reasonable grounds for the Clerk’s decision that the grievor should be denied a Top Secret security clearance and that her Secret security clearance should be revoked.

8 The grievor had also filed a grievance challenging her termination, which was referred to adjudication before adjudicator Mackenzie, who issued a decision on December 8, 2005.

9 In his decision, adjudicator Mackenzie outlined that the role of an adjudicator in the case of a termination resulting from the revocation of a security clearance is a narrow one, given that an adjudicator does not have jurisdiction to revise the decision to revoke the security clearance of a public servant. He further noted that the revocation of the grievor’s security clearance was a complete bar to any possibility of reinstating her in her former position and that he did not have the jurisdiction to order her reinstatement in another position. He concluded that since the employer had not revoked the grievor’s enhanced reliability status, it had an obligation to search for an alternate position for the grievor outside the PCO and that it had not fulfilled that obligation. With respect to the remedies, adjudicator Mackenzie concluded as follows:

…

[70]   I now turn to the appropriate remedy for a breach of the employer’s obligation to search for alternate positions.  This was not dealt with by the Federal Court in Singh (supra).  In Gannon (supra), the Federal Court of Appeal held that reinstatement was required if it is found that there is no cause for termination. However, reinstatement to her former position at the PCO is not legally possible since Ms. Zhang no longer meets the security level required for the position. As noted in Singh (supra), I cannot order her appointment to an alternate position.

[71]    However, I can order that the employer conduct a diligent search for an alternate position at the equivalent (her substantive IS-5) or a lower level for Ms. Zhang. The employer should be given some time to conduct such a search. In the circumstances, two months from the date of this decision to conduct a search should be sufficient.

[72]    Pending completion of the employer’s search, Ms. Zhang should be put back on leave with pay. This means that she should be reinstated to leave with pay from November 28, 2003, until the employer has completed its search for an alternate position. When the employer completes its search, Ms. Zhang’s leave with pay status will end. I will retain jurisdiction solely to deal with any matters relating to the implementation of the part of the order concerning the grievor’s reinstatement to leave with pay status.

[73]    In her grievance, Ms. Zhang requested that the letter of discharge and all copies be withdrawn and destroyed in her presence. I see no need to make such an order. The termination is rescinded by this decision; therefore, the termination letter and any copies are of no effect.

[74]    For all of the above reasons, I make the following order:

Order

[75]    The grievance is allowed, in part.

[76]    I order that the employer conduct a diligent search for an alternate position for the grievor at an equivalent (IS-5) or lower level within the parts of the public service for which it is the employer, for a period of two months from the date of this decision.

[77]    I order the employer to reinstate Ms. Zhang in her leave with pay status effective November 28, 2003, until the employer has completed its search for an alternate position.

[78]    I will remain seized of the matter solely in relation to the implementation of the reinstatement to leave with pay status should the parties have any difficulties in implementing this part of the order.  

10 Following adjudicator Mackenzie’s decision, the events detailed in the following paragraphs occurred.

11 On April 7, 2006, the employer sent the grievor the following letter:

In his decision dated December 8, 2005, Adjudicator Ian R. Mackenzie ordered the Employer to conduct a diligent search for a period of two months to assist you in finding an alternate position at an equivalent (IS-05) or lower level. He further ordered a reinstatement of your employment and that you be placed on leave with pay until the search is completed. Your status has been amended to comply with the Adjudicator’s order and you should receive the appropriate compensation in the near future.

The search for alternate employment was undertaken on February 14, 2006 and will cease on April 13, 2006.  This letter is to advise you that unless you can provide the Privy Council Office with proof that you were successful in securing employment in another department, you will cease to be an employee of the Public Service at the end of the day on April 13, 2006.

You are therefore requested to provide the necessary information by Wednesday, April 12, 2006, to Chantal Butler, Labour Relations Advisor, 55 Metcalfe Street, Room 1561, Ottawa, Ontario, K1A OA3.  If you have been unsuccessful in your job search, you will be receiving another letter on April 13, 2006, informing you of the termination of your employment.

12 On April 13, 2006, the grievor received her termination letter, which was signed by the Deputy Secretary to the Cabinet of the Privy Council Office that reads as follows:

This letter is further to my letter dated April 7, 2006, requesting information with respect to your success in securing alternate employment.

As you were unable to provide us with the necessary proof confirming that you had found a position in another part of the public service, I am therefore writing to inform you that, pursuant to the authority delegated to me by the Clerk of the Privy Council Office and Secretary to the Cabinet, your employment as a Senior Analyst with the Privy Council Office will cease at the end of the day today, April 13, 2006.

This termination of employment is made pursuant to section 12(1)(e) of the Financial Administration Act. If you wish to contest this termination, you have the right to present a grievance within twenty-five (25) days from the date on which you receive notice of this decision. 

13 On April 18, 2006, the Director of Security Operations, PCO, sent a letter to the grievor that contained the following:

This letter is to inform you that, because you are no longer employed with the Privy Council Office, your reliability status has been administratively cancelled effective April 18, 2006.

…

14 On May 2, 2006, the grievor filed a grievance challenging the termination of her employment. The grievance reads as follows:

I grieve the letter of termination of employment dated April 13, 2006 and signed by Michael Wernick, Deputy Secretary to the Cabinet, Plans and Consultation, Privy Council Office.

This termination of my employment was done without just and sufficient Cause. In addition, the letter of termination is contrary to the decision made on December 8th, 2005, by Ian R. Mackenzie, adjudicator for the Public service Labour Relations Board (PSLRB), in file number 166-2-32992.

…

[Sic throughout]

15 In its reply at the final level of the grievance procedure, on August 31, 2006, the employer allowed the grievance in part and explained the context of its decision in the following manner:

…

Your grievance is in reference to the decision that was conveyed to you on April 13, 2006, to terminate your employment with the Privy Council Office effective the same day. You are contesting the fact that the termination was done without just and sufficient cause and that it was premature.

As ordered by Adjudicator Ian R. Mackenzie in his decision rendered on December 8, 2005, a 2-month diligent search for alternate employment at the IS-05 equivalent or lower level was undertaken. To this end, the Employer took the following actions: provided you with job opportunity advertisements; sent your résumé to Industry Canada, your employing department prior to joining the Privy Council Office; marketed you by phone to several departments; and looked into the eligibility criteria of placing you on a priority list with the Public Service Commission. The search was undertaken February 14, 2006, and ended on April 13, 2006.

A few days after the grievance hearing, the Employer was made aware of a possible employment opportunity with Service Canada as a result of a selection process opened to the public that you had applied for. The grievance was then kept in abeyance pending the results of this selection process. We have now been advised that you were declared the qualified candidate and that your appointment to Service Canada would take effect on September 5, 2006.

In view of the above, your grievance is allowed in part. The termination of employment is rescinded and you are placed on leave without pay from April 14, 2006, to September 4, 2006.

16 This grievance was originally assigned to adjudicator Michele A. Pineau, who held a hearing on March 18, 2008. The merits were not discussed during that hearing but adjudicator Pineau heard preliminary matters concerning disclosure and ordered the disclosure of certain types of documents.

17 On June 19, 2008, the employer raised a preliminary objection to the jurisdiction of an adjudicator appointed under the Public Service Labour Relations Act (“the Act”) to hear the grievance challenging the grievor’s termination.

18 On May 11, 2006, the grievor had also grieved the decision of April 18, 2006, cancelling her reliability status. That second grievance reads as follows:

I grieve the letter of cancellation of my reliability Status [sic]: this letter being dated April 18, 2006 and signed by Raymond Lamb, Director, Security Operations, PCO. This cancellation is done without just and sufficient cause. In addition, this letter is in direct violation of Treasury Board Personnel Security Standard (6.1) as the employer failed to informed me in writing of my rights to access to review or redress mechanisms.

…

Corrective action:

I request that the above-noted letter be immediately withdrawn, all copies destroyed in my presence, I also request reactivation of my reliability status and that I be made whole.

19 On August 21, 2008, the employer denied that second grievance at the final level of the grievance procedure:  

…

The cancellation of your reliability status was purely administrative in nature. Furthermore, Service Canada granted you a reliability status in September 2006, therefore rendering this matter moot.

…

20 As previously mentioned, that grievance was referred to adjudication on September 29, 2008, and was joined to the grievance challenging the grievor’s termination.

21 On October 9, 2008, the employer objected to having the grievance challenging the cancellation of the grievor’s reliability status joined to the grievance challenging her termination.

22 On November 12, 2008, the Chairperson of the Board reassigned me the two grievances.

23 On November 5, 2008, counsel for the employer filed a joint request on behalf of himself and the grievor’s representative, asking that the hearing scheduled for November 26 to 28, 2008, be restricted to three preliminary issues as follows: a first issue dealing with the jurisdictional objection with respect to the grievance challenging the termination of employment; a second issue dealing with the question of whether the grievance challenging the cancellation of the grievor’s reliability status should be joined with the grievance challenging the termination of her employment and a third issue relating to the disclosure of documents in application of adjudicator Pineau’s ruling. The request was granted, and the hearing was limited to one day, November 28, 2008.  

24 At the start, I informed the parties that the hearing would be limited to the objection with respect to my jurisdiction and to the question of the appropriateness of joining the two grievances. With respect to the issue concerning disclosure, I informed the parties that I considered that this issue should be dealt with by the adjudicator dealing with the merits of the grievances and given that my decision could result in the reassignment of the grievances to adjudicator Mackenzie, it was premature to deal with it.

25 The grievor’s representative filed exhibits but neither party presented testamentary evidence. The following letters, which were already in the file, along with the oral submissions of both parties, were considered: letters dated June 19 and July 16, 2008, filed by counsel for the employer; a letter dated July 7, 2008, filed by the grievor’s representative; and a letter dated October 9, 2008, filed by an employer’s representative, Jeff Laviolette.   

II. Summary of the arguments

A. Objection to the jurisdiction of an adjudicator over the grievance challenging the termination of employment (PSLRB Files No. 566-02-602 and 603)

26 Before discussing the employer’s objection, I invited the grievor’s representative to confirm the redress that the grievor was seeking. He confirmed that the grievor was not seeking reinstatement but merely monetary compensation for the period between her termination of April 13, 2006, and September 4, 2006, the date on which she started a new position with Service Canada.

1. For the employer

27 Counsel for the employer submitted that by seeking retroactive pay for the period from April 13, 2006, to September 4, 2006, the grievor was changing the issue that was originally raised in the grievance in reaction to the employer’s response to the grievance.  

28 Counsel for the employer insisted that in her grievance, the grievor challenges her termination, which occurred on April 13, 2006, and that the grievance as it is written crystallizes the issue that is being grieved. He argued that the issue cannot evolve to become another matter following the employer’s decision to partially grant the grievance. Counsel for the employer contended that if the grievor wanted to challenge the employer’s decision of August 31, 2006, to retroactively place her on “leave without pay” status, she should have filed another grievance.

29 Referring to the termination of April 13, 2006, counsel for the employer contended that it was not an ordinary termination that could be challenged by a grievance under section 209 of the Act. He submitted that the issue of the grievor’s termination had already been determined in 2005 by adjudicator Mackenzie and that, therefore, the issue of whether the employer had just cause to terminate the grievor was barred by the principle of issue estoppel. The findings and the orders issued by adjudicator Mackenzie could neither be revisited nor relitigated through subsequent grievances. On that matter, the employer relied on Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, and Sherman v. Canada Customs Revenue Agency, 2004 PSSRB 125.

30 Counsel for the employer submitted that, although adjudicator Mackenzie rescinded the grievor’s termination, he clearly recognized that he could not order her reinstatement in her former position and that he was without jurisdiction to appoint her to another position. The employer also took the position that the reinstatement of the grievor, as ordered by adjudicator Mackenzie, was conditional and limited to the period during which the employer was to conduct a search for alternate employment for the grievor. Counsel for the employer submitted that the employer conducted a diligent search, which was not successful, and that the termination of the grievor’s employment at the end of the search was done in accordance with paragraphs 72 and 77 of adjudicator Mackenzie’s decision, which read as follows:

[72]    Pending completion of the employer’s search, Ms. Zhang should be put back on leave with pay. This means that she should be reinstated to leave with pay from November 28, 2003, until the employer has completed its search for an alternate position. When the employer completes its search, Ms. Zhang’s leave with pay status will end. I will retain jurisdiction solely to deal with any matters relating to the implementation of the part of the order concerning the grievor’s reinstatement to leave with pay status.

…

[77]    I order the employer to reinstate Ms. Zhang in her leave with pay status effective November 28, 2003, until the employer has completed its search for an alternate position.

31 From the employer’s perspective, by terminating the grievor’s employment on April 13, 2006, the employer was merely giving effect to adjudicator Mackenzie’s order. Therefore, the termination cannot be construed as a termination in the sense encompassed by section 209 of the Act but must rather be viewed as the consequence of adjudicator Mackenzie’s decision.

32 Counsel for the employer further submitted that since the termination of the grievor could not be relitigated, the only live issue remaining from the grievance is whether the employer met the conditions of adjudicator Mackenzie’s order and conducted a diligent search for alternate employment for the grievor within the departments for which the Treasury Board is the employer. He insisted that the opening remarks of the grievor’s representative before adjudicator Pineau were consistent with that understanding and quoted him as follows: “The employer acted in bad faith when undertaking the search over the two month period.”

33 On that matter, counsel for the employer contended that the issue of the employer’s compliance with adjudicator Mackenzie’s order could not give rise to a grievance that would be adjudicable under section 209 of the Act. For the employer, such an issue relates to the enforcement of adjudicator Mackenzie’s decision. Counsel for the employer argued that the process with respect to the enforcement of an order issued by an adjudicator is provided in section 234 of the Act and rests with the Federal Court.  

34 In the event that I consider that the issue relating to the sufficiency of the search does not constitute an issue of enforcement of adjudicator Mackenzie’s order, counsel for the employer argued that it should then be considered as an issue of implementation of the order. He submitted that an adjudicator, under section 209 of the Act, does not have jurisdiction to rule on the implementation of an order issued by another adjudicator and that, therefore, the matter should be referred back to adjudicator Mackenzie. He also added that adjudicator Mackenzie was in the best position to rule on the implementation of his own decision.

2. For the grievor

35 The grievor’s representative submitted that the employer was barred from raising an objection to the jurisdiction of an adjudicator since it had not raised its objection either before or at the hearing before adjudicator Pineau. The employer’s objection was raised for the first time in the June 19, 2008, letter, which was too late, from the grievor’s perspective. Therefore, the grievor’s representative submitted that the employer ought to be considered as having waived its right to raise jurisdictional issues.

36 With respect to the merits of the objection, the grievor took the position that adjudicator Pineau and, now, the undersigned, is properly seized of the grievances.

37 The grievor’s representative submitted that the allegation that the employer did not conduct a diligent search is not the only issue raised by the grievances. He responded to the employer’s argument that he had admitted before adjudicator Pineau that that issue was the only live issue by indicating that the issue with respect to the sufficiency of the search was advanced in the context of a debate over disclosure and not in the context of an examination of the merits of the grievances.

38 The grievor’s representative submitted that the May 2, 2006, grievance raises the following two issues: one dealing with the sufficiency of the search conducted by the employer, and another dealing with the termination. The grievor’s representative presented as follows the grievor’s perception of the events. The employer did not fulfill its obligation to conduct a diligent search to find her an alternate position. The employer did the minimum, and in its letter of April 7, 2006, it reversed the onus and let it rest on the grievor to demonstrate that she had found an alternate position; otherwise, she would be terminated. The employer did not collaborate and assist her when she applied for a position during the window of the search. Instead of helping her, the employer was in such a hurry that it terminated her at the first opportunity and then cancelled her reliability status, even though it was aware that she was involved in a competitive process that had the potential of leading to her being appointed to an alternate position. 

39 The grievor’s representative disagreed with the employer’s position that the issue of the sufficiency of the search relates to the implementation of adjudicator Mackenzie’s decision. He contended that adjudicator Mackenzie clearly indicated that he was only remaining seized of one particular issue: the reinstatement of the grievor to her leave with pay status. He did not retain jurisdiction over the implementation of the other parts of his decision, namely, the order made to the employer to conduct a diligent search for an alternate position for the grievor. Therefore, in the grievor’s opinion, any adjudicator can validly be seized of issues relating to the implementation of that order. 

40 With respect to the termination, the grievor’s representative does not agree with the employer’s view that the grievor’s termination on April 13, 2006, was the consequence of, or was made in application of adjudicator Mackenzie’s decision. He argued that adjudicator Mackenzie did not order that the grievor would inevitably be terminated at the end of the search, should it be inconclusive. The decision stated that the leave with pay status would end, not that the grievor would be terminated. The grievor’s representative suggested that, therefore, the employer could have, and under the circumstances should have, maintained the grievor’s employment status until such time that the competition process in which she was participating was completed.

41 The grievor’s representative submitted that the grievor’s termination of employment on April 13, 2006 is a distinct termination from the termination of November 28, 2003 and that it is adjudicable under section 209 of the Act, like any other termination. He insisted on the fact that even the employer recognized the grievor’s right to grieve her termination, given that the letter of termination clearly indicated that the grievor was entitled to grieve her termination. The grievor’s representative also insisted on the fact that the employer had even partially granted the grievance.

3. Reply of the employer

42 Counsel for the employer replied to the argument raised by the grievor’s representative about the alleged waiver of the employer’s right to raise a jurisdictional objection. He submitted first that adjudicator Pineau only dealt with procedural and disclosure issues and that, therefore, discussions with respect to the merits of the grievances had not commenced; and second that a jurisdictional issue can be raised at any time and that a party cannot waive jurisdiction issues and consent to enlarge the jurisdiction of an adjudicator under the Act. On that matter, the employer relied on Boutilier v. Canada (Treasury Board), [1999] 1 F.C. 459 (T.D.), and Boutilier v. Canada (Attorney General), [2000] 3 F.C. 27 (C.A.).  

B. The appropriateness of joining the grievance challenging the cancellation of the grievor’s reliability status (PSLRB File No. 566-02-2358) with the grievance challenging her termination (PSLRB File Nos. 566-02-602 and 603)

1. For the grievor

43 The grievor’s representative submitted that the revocation of the grievor’s reliability status occurred in a continuum of the employer’s conduct following adjudicator Mackenzie’s decision. He alleged that the employer wanted to oust the grievor from the public service. It was forced to look for alternate positions, and it did the minimum. It terminated her employment at the first opportunity, and by cancelling her reliability status, the employer went further and continued to act in bad faith. The grievor’s representative submitted that the cancellation of the grievor’s reliability status threw a wrench in the process and added delays to her appointment to Service Canada. He further submitted that the employer’s conduct has to be looked at as a whole and that, within that context, the employer has to establish the legitimacy of the revocation of the grievor’s reliability status.

44 The grievor’s representative further argued that, under the circumstances, the revocation of the grievor’s reliability status is clearly intertwined with the employer’s previous conduct that led to her termination and that, therefore, the grievance challenging the grievor’s cancellation of her reliability status should be joined with the grievance challenging the termination of her employment, given that the issues arose out of a unique chain of events.

45 With respect to an adjudicator’s jurisdiction to deal with a grievance concerning the cancellation of reliability status, the grievor’s representative relied on the following authorities: Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768; Deering v. Treasury Board (National Defence), PSSRB File. No. 166‑02‑26518 (19960208); Gunderson v. Treasury Board (Revenue Canada - Customs and Excise), PSSRB File Nos. 166-02-26327 and 166-02-26328 (19960725); O’Connell v. Treasury Board (Sollicitor General Canada – Correctional Service) PSLRB File Nos. 166-02-27507, 27508 and 27519 (19970819); Gill v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 81.    

2. For the employer

46 The employer objects to having the grievance challenging the cancellation of the grievor’s reliability status joined to the grievance challenging the termination of her employment.

47 On the one hand, counsel for the employer reiterated his position that the grievance challenging the grievor’s termination does not constitute a new, separate and distinct grievance, but rather raises an issue of enforcement or of the implementation of adjudicator Mackenzie’s order. On the other hand, he argued that the grievance challenging the cancellation of the grievor’s reliability status does raise a separate and distinct issue and that, therefore, it should not be joined to the grievance dealing with the termination.

48 Counsel for the employer further submitted that the grievance challenging the cancellation of the grievor’s reliability status is not adjudicable under section 209 of the Act because the employer’s decision was merely administrative and was made in application of the Government Security Policy. He relied on Hillis v. Treasury Board (Department of Human Resources Development), 2004 PSSRB 151. Counsel for the employer further suggested that if the grievor wished to challenge the cancellation of her reliability status, she should have sought judicial review of the employer’s decision before the Federal Court, as in Myers v. Canada (Attorney General), 2007 FC 946 and 2007 FC 947. According to the employer, the Federal Court is the only appropriate forum.

49 Counsel for the employer also submitted that the issue of the cancellation of the grievor’s reliability status is moot given that she was subsequently granted reliability status by Service Canada. On that matter, the employer relied on Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, and Perez v. Canada (Minister of Citizenship and Immigration), 2008 FC 663.

3. Reply submissions of the grievor

50 The grievor’s representative insisted on the fact that the employer’s decision to cancel the grievor’s reliability status amounted to disguised discipline and that an adjudicator does have jurisdiction to review the reasonableness of the employer’s decision, the employer’s good faith and the fairness of the process that led to the decision.

51 The grievor’s representative also argued that the fact that the grievor was subsequently granted reliability status by Service Canada does not render the matter moot. In that regard, the grievor’s representative insisted that the grievor alleges that she has been prejudiced by the employer’s decision, which delayed the competitive process that led to her appointment to Service Canada.      

III. Reasons

A. Objection to the jurisdiction of an adjudicator over the grievance challenging the the termination of the grievor’s employment (PSLRB File Nos. 566-02-602 and 603)

52 Before dealing with the merits of the objection, I will address the employer’s allegation with respect to the grievor changing the nature of her grievance following the employer’s decision regarding that grievance.

53 I do not consider that, by seeking compensation for the period from her termination to the date on which she started working with Service Canada, the grievor changed the nature of her grievance. Considering that the employer has rescinded the grievor’s termination, that the grievor no longer seeks reinstatement and that she found an alternate position as of September 4, 2006, I consider that a monetary compensation constitutes a remedy that can be encompassed by the grievance as it is written. The grievance states the following: “I request that the above-noted letter be immediately withdrawn, all copies destroyed in my presence, reinstatement without loss of pay and benefits and that I be made whole [emphasis added].” In my view, the language of the grievance clearly indicates that reinstatement was sought, without loss of pay. The fact that the employer granted the grievance in part and rescinded the termination and the fact that the grievor no longer seeks reinstatement does not change the nature of the grievance or eliminate the issue with respect to compensation.     

54 I now turn to the grievor’s submission that the employer has not raised its objection in a timely manner and that it ought to be considered as having waived its right to raise jurisdictional issues. I do not consider that the employer was precluded from raising its objection on June 19, 2008. First, I consider that the hearing before adjudicator Pineau was restricted to preliminary matters about disclosure issues. Therefore, I do not consider that the hearing per se of the grievances had commenced. Second, I am bound by Boutilier v. Canada (Treasury Board) and Boutilier v. Canada (Attorney General), in which the Federal Court and the Federal Court of Appeal determined that a jurisdictional issue can be raised at any time, even on judicial review. The jurisdiction of an adjudicator has been circumscribed by the legislator namely in section 209 of the Act, and the limits to that jurisdiction cannot be ignored or extended by the parties. Therefore, I consider that the employer could not have waived its right to raise the preliminary objection with respect to jurisdiction and that it had the right to raise that preliminary objection when it did.

55 I now turn to the merits of the employer’s objection. For the following reasons, I consider that I am properly seized of the grievances.   

56 In her grievance, the grievor challenges her termination as follows:

I grieve the letter of termination of employment dated April 13, 2006… .

This termination of my employment was done without just and sufficient Cause. In addition, the letter of termination is contrary to the decision made on December 8th, 2005, by Ian R. Mackenzie… .

…

57 At the outset of the hearing, the grievor’s representative specified that the grievor was alleging the following two things: first, that the employer did not conduct the diligent search ordered by adjudicator Mackenzie, and second, that, under the circumstances, her termination was premature and made in bad faith.

58 Both parties agree that the dispute arose out of the parties’ conduct in reaction to, and following, adjudicator Mackenzie’s decision of December 8, 2005. The parties also agree that the issues raised in the grievances relate, at least in part, to the question of whether the employer complied with adjudicator Mackenzie’s decision.

59 However, the parties do not have the same understanding with respect to the ambit of the ruling. The employer contends that the reinstatement of the grievor was limited to the two-month period of the search and that, therefore, the termination of April 13, 2006 is not adjudicable because it was done in application of the decision. The grievor, for her part, contends that it was only the leave with pay status and not the reinstatement that was limited to a two-month period and, that therefore, the termination is adjudicable under section 209 of the Act like any other termination.

60 To determine if the grievor’s termination of April 13, 2006 is adjudicable under section 209 of the Act, I must examine the ambit of the order made by adjudicator Mackenzie with respect to the following question: Did the order imply that the grievor would automatically be terminated at the end of the two-month period, if the search was inconclusive?

61 I will start by saying that, a priori, each party’s interpretation could be sustained. For the following reasons, however, I prefer the grievor’s interpretation and conclude that adjudicator Mackenzie’s order did not imply that the employer had to terminate the grievor immediately after the search period.

62 The ruling unequivocally ordered the employer to conduct a diligent search over a two-month period, during which the grievor would be placed on leave with pay status. I do not believe that the decision implied that the reinstatement would necessarily be restricted to the search period. In paragraph 72 of his decision, adjudicator Mackenzie stated that “[w]hen the employer completes its search, Ms. Zhang’s leave with pay status will end.” In his order, he stated that he “order[ed] the employer to reinstate Ms. Zhang in her leave with pay status effective November 28, 2003, until the employer has completed its search for an alternate position.” The decision does not say that the reinstatement will immediately cease at the end of the search period. If the adjudicator had wished to limit the reinstatement to the search period, I believe that he would have been more explicit.

63 In my view, the order implied that the employment relationship between the employer and the grievor could come to an end if the search were not conclusive. However, I consider that the decision did not dictate that the grievor was to be terminated on the day following the end of the search period. I believe that the order allowed the employer the discretion and the latitude to decide, considering the circumstances, if and when it would be appropriate to end the employment relationship. Several elements would likely have been considered, including the results of the search and any possible follow-ups.  

64 Although I agree that the termination of April 13, 2006, has some connection with adjudicator Mackenzie’s decision, I do not believe that he ordered that the grievor was to be terminated the day following the end of the search. I therefore conclude that the employer’s decision to terminate the grievor on April 13, 2006, should not be construed as constituting the implementation of adjudicator’s Mackenzie’s decision or as having been made in application of that decision. For the above reasons, I consider the grievor’s termination of April 13, 2006, to be distinct from the termination that occurred in 2003 and therefore conclude that it is adjudicable under section 209 of the Act.

65 I further consider that the issues raised in the grievance challenging the termination are not barred from being examined on the basis of issue estoppel, given that those issues are not identical to the issues that were raised in the grievance that led to adjudicator Mackenzie’s decision. On one hand, in her 2003 grievance, the grievor challenged her initial termination and the dispute raised an issue about the absence of a search, on the part of the employer, to find her alternate employment during a very specific period in 2003. On the other hand, the objects of the grievances that I am seized of relate to the sufficiency of the search that was ordered in 2005 and to the ultimate decision of the employer in 2006 to terminate the grievor’s employment once again after the search period.  

66 I will add a note to say that I would have reached the same conclusion even if I had adopted the employer’s interpretation that adjudicator Mackenzie’s order entailed that the grievor’s employment would automatically cease at the end of the search period. My understanding of adjudicator Mackenzie’s decision would have led me to conclude that implicit in his decision is a requirement that the employer conduct a diligent search. Confronted with an allegation that the employer had not conducted such a diligent search, I would have concluded that the employer’s conduct ought to be examined, including its ultimate decision to terminate the grievor. I would have therefore concluded that the termination was prima facie adjudicable under section 209 of the Act.

67 Despite my conclusion that the grievance is adjudicable, I agree with the employer that it cannot be examined as an ordinary termination grievance and that adjudicator Mackenzie’s findings and ruling cannot be ignored. In that regard, it is clear that the analysis of the issues raised in the grievance could not lead to conclusions or remedies that would have the effect of relitigating or requestioning the elements that were decided by adjudicator Mackenzie. Consequently, the following elements will be considered indisputable:

• The original termination of the grievor, which occurred in 2003, has been ruled on and was rescinded.
• At that time, the grievor could not be reinstated in her former position at the PCO because she did not meet the mandatory condition of employment with respect to her security clearance, and the adjudicator was without jurisdiction to appoint her to another position.

68 The adjudication of the grievances that I am seized of cannot revisit those conclusions and cannot lead to an order to reinstate the grievor in her former position at the PCO or to appoint her to any other position.

69 Apart from the termination, the grievance also raises the issue of whether the employer conducted a diligent search to find an alternate position for the grievor. When considered separately, I agree with the employer that this issue could be viewed as an issue of the enforcement of adjudicator Mackenzie’s decision, for which an adjudicator is without jurisdiction. However, I believe that the issue of the sufficiency of the search cannot be isolated from the grievor’s termination. In my opinion, the employer’s conduct between the time of the grievor’s reinstatement and her second termination on April 13, 2006, is a continuum that has to be analyzed as a chain of events, and it should be considered a single incident. Given that I have decided that the termination is adjudicable under section 209 of the Act, I consider that the employer’s conduct that led to the termination is also reviewable.

70 Moreover, I believe that the fact that one of the issues raised in the grievance could be considered as raising an issue of the enforcement of adjudicator Mackenzie’s order does not preclude an adjudicator from dealing with the issue if he or she otherwise has jurisdiction over that issue. Respectfully, I believe that, in the event that both an adjudicator under the Act and the Federal Court could have jurisdiction over a labour relations dispute, the adjudication of the grievance should be preferred over proceedings before the Federal Court. I find this orientation to be compatible with the principles underlined in the following line of decisions rendered by the Supreme Court: C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227; St. Anne Nackawic Pulp & Paper v. CPU, [1986] 1 S.C.R. 704; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; New-Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14; and Vaughan v. Canada, 2005 SCC 11.  

71 In this case, the issues raised in the grievances are issues encompassed by the dispute resolution regime provided in Part 2 of the Act, over which an adjudicator has jurisdiction. I also believe that, under the circumstances, proceedings of enforcement before the Federal Court, even if they were successful, would not lead to a satisfactory remedy, considering that the grievor does not seek the continuance of the search or her reinstatement.

72 With respect to the last argument of the employer that the issue about the sufficiency of the search should be viewed as an issue of the implementation of adjudicator Mackenzie’s decision and that it should be assigned to adjudicator Mackenzie, with respect, I disagree.

73 I consider that this issue does not concern the portion of the order for which adjudicator Mackenzie remained seized. In his decision, he clearly indicated that he was remaining seized solely “… to deal with any matters relating to the implementation of the part of the order concerning the grievor’s reinstatement to leave with pay status.” It is not disputed that the employer complied with that part of the order. With respect to the other parts of the order, I consider that adjudicator Mackenzie is functus officio. I also consider that he is not in a better position than any other adjudicator to analyze the parties’ conduct subsequent to the issuance of his decision and to determine whether the employer did conduct a diligent search and whether its decision to terminate the grievor on April 13, 2006, was reasonable.

74 In conclusion, I reiterate that I consider that I am properly seized of the grievance and that this grievance raises the following issues:

• Did the employer conduct a diligent two-month search to find an alternate position for the grievor?
• Under the circumstances, was the grievor’s termination on April 13, 2006, for just cause?   

B. The appropriateness of joining the grievance challenging the cancellation of the grievor’s reliability status to the grievance challenging her termination

75 With respect to the appropriateness of joining these grievances, it is clear to me that the grievor’s allegations with respect to the cancellation of her reliability status are intertwined with the allegations contained in the grievance challenging her termination. The grievor challenges the employer’s conduct in reply to adjudicator Mackenzie’s decision, and both the termination and the cancellation of the reliability status form a chain of events relating to that conduct. I therefore conclude that it is appropriate that the two grievances be heard together.

76 I do not intend, at this stage, to rule on the employer’s objection with respect to the jurisdiction of an adjudicator to be seized of the grievance challenging the employer’s decision to cancel the grievor’s reliability status. The grievor alleges that the decision was made in bad faith and that it constituted disguised discipline. Given the allegation and given that those allegations originate from the same events that led to the other grievances; I consider that it is appropriate to take the objection under advisement until I hear the merits of the grievance.

77 I will finish by saying that I do not consider that the fact that the grievor was granted reliability status by Service Canada after the PCO cancelled her reliability status renders the matter moot, given the allegation that the PCO’s decision delayed her appointment to Service Canada.

78 For all of the above reasons, I make the following order:

IV. Order

79 The employer’s objection to my jurisdiction over files 566-02-602 and 603 is dismissed.

80 I take the objection with respect to the adjudicability of file 566-02-2358 under advisement.

81 I declare that file 566-02-2358 shall be joined to files 566-02-602 and 603 and that all grievances will be dealt at the same hearing;

82 Hearing dates will be scheduled to deal with the merits of all grievances.

February 16, 2009.

Marie-Josée Bédard,
adjudicator