FPSLREB Decisions

Grievance referred to adjudication

1 On July 13, 2007, Donna Routliffe (“the grievor”) filed a grievance against her alleged termination by the Senate of Canada (“the employer”). The employer replied to the grievor’s counsel on July 31, 2007, indicating that she had retired and arguing that because of her status as an employee of a Member of Parliament, her grievance was not receivable as per paragraph 4(2)(e) of the Parliamentary Employment and Staff Relations Act (PESRA). She referred her grievance to adjudication on August 30, 2007.

2 Private mediation was attempted but did not meet with success. Counsel for the employer objected to the jurisdiction of the adjudicator appointed by the Public Service Labour Relations Board (“the Board”) on November 12, 2007. After discussions with the Board, both parties agreed that the adjudicator should first deal with the preliminary objection before proceeding on the merits of the grievance.

3 A hearing was scheduled for October 15, 2008. The employer started presenting its case. During cross-examination of the employer’s first witness, the employer raised an objection to the information asked by counsel for the grievor, claiming parliamentary privilege. The hearing was adjourned, and the parties were asked to present oral submissions with respect to the objection on October 27, 2008.

4 The hearing was adjourned again to provide me with the time required to rule on the objection. I sustained the objection on parliamentary privilege on January 22, 2009, and the hearing reconvened on January 26 and 27, 2009 for conclusion. As agreed by the parties, this decision deals only with the jurisdictional objection.

Summary of the evidence

5 Suzanne Poulin, Acting Director, Human Resources, Senate of Canada, was the only witness to provide oral and documentary evidence on behalf of the employer. The grievor had asked me to summon Paul C. Bélisle, Clerk of the Senate, and Colin Kenny, Senator, but ultimately did not call on them to testify.

6 The evidence showed that the grievor started working as an indeterminate full-time secretary to Senator Louis J. Robichaud in February 1974.

7 The grievor began working as an indeterminate full-time secretary to Senator Kenny in 1984. She then became an administrative assistant to Senator Kenny in 1997 and a policy advisor in 2000.

8 Following a global budget exercise at the Senate in 1997, certain work conditions were changed. Offers of employment in Senators offices were to be made on a term basis, and the severance package for secretaries was changed. Because the grievor had been hired as an indeterminate employee before 1985, she maintained her indeterminate status and her existing severance package entitlements.

9 The grievor’s employment was terminated in March 2007. The grievance concerns how this occurred; however, I am not to rule on that issue in this decision.

10 In September 2006, the grievor had reached the age and years of service required to be entitled to a full pension. She wanted to receive her pension but was also interested in continuing to work in the Senate. There was also a difference in the amount of severance pay she was entitled to, depending on how she left the Senate, termination being more advantageous. Re-employment was considered a problem in terms of public perception and proper usage of public funds. Senator Kenny terminated her employment on March 30, 2007. The Senate did not accept the termination and treated it as a retirement.

11 Ms. Poulin explained that there are two types of employees in the Senate. Some work directly for senators, helping them accomplish their parliamentary duties and partisan work. Others work in the Senate administration. All are employees of the Senate, but some administrative rules apply differently.

12 Senators have the authority to hire, promote and terminate employees working in their offices, subject only to the guiding principles in the Senate Administrative Rules. If a senator does not comply with those principles, the Senate Standing Committee on Internal Economy, Budgets and Administration can overrule the senator.

Summary of the arguments

13 Counsel for the employer submitted that the question before me was very clear. Does the grievor have the right to grieve under the PESRA?

14 The answer is no. The grievor is the employee of a Member of Parliament (a Senator) and as such, is excluded under paragraph 4(2)(e) of the PESRA, and thus has no right to present a grievance.

15 The institutional evidence and the evidence presented by the parties is very clear. There are two human resources regimes for employees of the Senate. Senators’ staff members are treated differently — they are hired, promoted and terminated at the discretion of the senator, subject to certain principles identified in the Senate Administrative Rules and reviewed by the Internal Economy Committee (IEC), if the senator’s relevant actions are found to be non-compliant. They are also excluded from Part 1 of the PESRA.

16 The documentary evidence showed that the grievor was hired as a secretary in a senator’s office in 1974 and that she remained in a senator’s office until her departure in 2007.

17 There is no jurisprudence to refer to, as this is the first case on this issue to be presented to the Board. The employer’s counsel argued that I should rule that the Board does not have jurisdiction.

18 The grievor’s counsel submitted that the issue before me is determining whom Parliament intended to exclude from the application of Part 1 of the PESRA.

19 If a person is under a senator’s authority to the extent that the senator can hire and fire that person, then the person’s situation meets the definition of being staff of a Member of Parliament, and therefore Part 1 of the PESRA does not apply. If, on the contrary, the senator does not have full employment control, then that person is not part of the staff of a Member of Parliament, and he or she can grieve under Part 1.

20 The grievor’s counsel referred me to the context around the creation of the PESRA in 1983 and to some of the debates. The reason for the exclusion of staff of Members of Parliament was that Members of Parliament were considered as the employer since they hire, fire, direct and discipline their staff. That was the premise under which the legislation came into force in 1987.

21 The 1986 Senate Personnel Management Manual also identified a category of employees as “Staff of Senators”. These employees were not subject to policies such as Staffing and Performance Review and Employee Appraisal. Staffing, in particular hiring, was the responsibility of the senator, and employment tenure was at the pleasure of the senator. Correspondence from the Human Resources Department always indicated that tenure was at pleasure of the senator. The grievor’s letter of termination from the senator reiterated that point.

22 However, the grievor claims that the senator could not terminate the grievor’s employment because the termination was subject to review by the IEC. The grievor is, then, not part of the senator’s staff, and therefore she can file a grievance.

Reasons

23 I agree with counsel for the employer that the issue is whether the grievor is an employee of a Member of Parliament, which includes both the House of Commons and the Senate. If I find that she is, then she cannot grieve, and I do not have jurisdiction to hear the grievance. I do not feel that I need the extrinsic evidence on the PESRA as submitted by the grievor’s counsel.

24 Section 3 of the PESRA defines an employee as follows:

“employee” means a person employed by an employer, other than

…

 (e) a person excluded from the application of this Part by section 4,

and for the purposes of this definition a person does not cease to be employed by an employer by reason only of the person’s discharge contrary to this Part or any other Act of Parliament;

25 Subsection 4(2) of Part 1 of the PESRA reads as follows:

4. (2) This Part does not apply to or in respect of

(a) the staff of any member of the Queen’s Privy Council for Canada holding the office of a minister of the Crown;

(b) the staff of the member of the Senate occupying the recognized position of

(i) Leader of the Government in the Senate,

(ii) Leader of the Opposition in the Senate,

(iii) Government Whip in the Senate, or

(iv) Opposition Whip in the Senate;

(c) the staff of the member of the House of Commons occupying the recognized position of

(i) Leader of the Opposition in the House of Commons,

(ii) Chief Government Whip in the House of Commons, or

(iii) Chief Opposition Whip in the House of Commons;

(d) the staff of the member of the House of Commons occupying the recognized position of Leader or Whip of a party that has a recognized membership of twelve or more persons in the House of Commons;

(e) the staff of any other individual Member of Parliament;

(f) the staff employed to provide research or associated services to the caucus members of a political party represented in Parliament; or

(g) persons employed on a temporary basis by a committee of one or both Houses of Parliament.

26 And finally, “employer” is defined in section 3 of the PESRA as follows:

 “employer” means

(a) the Senate as represented by such committee or person as the Senate by its rules or orders designates for the purposes of this Part,

…

27 Part X of the Rules of the Senate of Canada defines the Internal Economy, Budgets and Administration, Standing Committee, as follows:

…

86. (1) The standing committees shall be as follows:

…

(g) The Committee on Internal Economy, Budgets and Administration, composed of fifteen members, four of whom shall constitute a quorum, which is authorized

(i)     to consider on its own initiative all financial and administrative matters concerning the internal administration of the Senate;

(ii)    to act, subject to the Senate Administrative Rules, on all financial and administrative matters concerning the internal administration of the Senate; and

(iii)   to interpret and determine, subject to the Senate Administrative Rules, the propriety of any use of Senate resources.

…

28 The Senate Administrative Rules provide for a special regime for senators. Chapter 1:02 3 reads in part as follows:

…

  (d) a Senator is entitled to have full discretion over and control of the work performed on the Senator’s behalf by the Senator’s staff in carrying out the Senator’s parliamentary functions, subject only to the law and to the rules, direction and control of the Senate and the Internal Economy Committee; and

  (e) subject to the law and the rules, direction and control of the Senate, the Internal Economy Committee determines how Senate resources are to be allocated and used. [2004-05-06]

Chapter 4:04 3 reads in part as follows:

  3. (1) Every Senator is entitled to cause staff to be hired and paid out of the Senator’s office budget to assist in carrying out the Senator’s parliamentary functions. [2004-05-06]

  (2) A member of the staff of a Senator may be an employee of the Senate, an independent contractor or a volunteer. [2004-05-06]

  (3) The parties to a contract under which a person becomes a member of the staff of a Senator paid by the Senate are the Internal Economy Committee, in the name of the Senate of Canada, and the person to be remunerated. [2004-05-06]

  (4) Staff of a Senator are employed or retained and dismissed by the Senate Administration at the direction of the Senator in the Senator’s sole discretion, and serve at pleasure. [2004-05-06]

  (5) Staff of a Senator are subject to the exclusive direction and control of the Senator. [2004-05-06]

…

29 The evidence shows that Senator Kenny hired the grievor as a secretary in 1984 and that she remained on his staff until 2007 as per the Senate Administrative Rules.

30 With the coming into force of Part I of the Parliamentary Employment and Staff Relations Act on December 24, 1986, the grievor became an employee of the staff of Senator Kenny. She is employed and dismissed by the Senate Administration at the direction of the Senator in the Senator’s sole discretion, and serves at pleasure.

31 As indicated in chapter 1:03 3 d) of the Senate Administrative Rules, this discretion is subject to the direction and control of the Senate and the Internal Economy Committee which can overrule the Senators as per chapter 2:05.

32 This oversight, however, does not change the status of the grievor. As a member of the staff of Senator Kenny, she is excluded from the definition of employee as per paragraph 4(2)(e) of the PERSA and I find that I do not have jurisdiction to hear her grievance.

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

Order

34 The grievance is dismissed for lack of jurisdiction.

April 14, 2009.

Michel Paquette,
adjudicator