FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Jarrod Goldsmith (“the grievor”) was employed at Service Canada, an initiative within Human Resources and Skills Development Canada (HRSDC). Before the deputy head of the HRSDC (“the respondent”) revoked his appointment, the grievor worked as a training design specialist (PM-03) in Ottawa, Ontario.

2 On December 9, 2008, the grievor filed a grievance contesting the revocation of his appointment. The grievance reads as follows:

…

Details of grievance

I grieve my termination from Service Canada

I grieve that this action is in fact a disguised discharge and a disciplinary measure

I grieve that my employer has violated the Public Service Code of Ethics

I grieve that my employer has violated the Treasury Board policy on harassment by their actions including escorting me out of the building thus humiliating me in front of other employees.

Corrective measures

That I be made whole

That I be reinstated immediately without loss of salary or benefits

That I reinstated [sic] immediately to an equivalent classification and level

3 On April 22, 2009, the grievor referred the matter to adjudication under paragraph 209(1)(b) and subparagraph 209(1)(c)(i) of the Public Service Labour Relations Act (“the PSLRA”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22. The record indicates that the respondent had not decided the grievance at the final level of the individual grievance process at the time the grievor referred it to adjudication.

II. Preliminary matters

4 On receiving a copy of the reference to adjudication, the respondent asked for clarification concerning the provision of the PSLRA under which the grievor had referred the matter. The grievor wrote as follows:

…

The Public Service Alliances [sic] of Canada takes the position that the grievor’s termination of employment was disciplinary in nature. In the alternative, we reserve the right to present arguments that the termination was for reasons other than a breach of discipline or misconduct.

…

5 The respondent subsequently asked for, and received, an extension of the time limit for deciding the grievance at the final level of the individual grievance process. The respondent rendered a final-level decision on July 15, 2009, which reads in part as follows:

…

In analyzing the information provided at the final level grievance hearing, I concluded that your appointment was revoked in accordance with the Public Service Employment Act and that neither you nor your representative provided any evidence of disciplinary actions or harassment taken against you. You also failed to provide me with a link between your allegation and the Code of Values and Ethics.

It is important to note that the Public Service Employment Act article 74 prescribes that:

74. A person whose appointment is revoked by the commission under 67(1) [sic] or by the deputy head under subsection 15(3) or 67(2) may, in the manner and within the period provided by the Tribunal’s regulations, make a complaint to the tribunal [sic] that the revocation was unreasonable.

Therefore, I have determined that the allegations in your grievance are unfounded, and I am therefore denying your grievance and corrective measures requested.

…

6 The Chairperson of the Public Service Labour Relations Board (“the Board”) assigned me as an adjudicator to hear and determine the matter. After reviewing the file, I asked the Registry of the Board to write to the parties on my behalf and to seek their written submissions on the following question:

If there is prima facie evidence that the employer revoked the appointment of Mr. Goldsmith in accordance with the PSEA, on what basis does an adjudicator have jurisdiction to consider the matter under the PSLRA?

The parties were informed that I might conclusively determine the matter based on their written submissions.

III. Written submissions

A. For the respondent

7 The respondent filed its written submissions on January 29, 2010.

8 The respondent argued that it revoked the appointment of the grievor on November 20, 2008 under the Public Service Employment Act (“the PSEA”), enacted by sections 12 and 13 of the Public Service Modernization Act. It attached the text of the revocation letter signed by Line Chandonnet, Chief, Investigations and Departmental Complaints, HRSDC, which reads in part as follows:

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This letter follows an investigation held under section 15 of the Public Service Employment Act; [sic] into selection process CSD IA NHQ SC 29510, for a position of Training Design Specialist, at a PM-03 group and level, for the Department of Human Resources and Social Development, Ottawa, Ontario, following allegations that a candidate was screened into the selection process, while being outside the area of selection.

It was determined, following the investigation, that an error, omission or improper conduct affected the selection of a person for appointment. The allegation was therefore founded and the intervention of the Deputy Head for the Department of Human Resources and Skills Development Canada was warranted.

You were the person who had been screened into the process without being in the area of selection and accordingly, the Deputy Head has now decided to revoke your appointment.

…

9 Ms. Chandonnet attached to her letter a copy of the final record of decision signed by the respondent on November 20, 2008, which reads in part as follows:

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An investigation was held by the Department, following information that there could have been an error, omission or improper conduct in the appointment of Mr. Jarrod Goldsmith to a position of Training Design Specialist, at a PM-03 group and level for the Department of Human Resources and Social Development – Service Canada, Ottawa.

This process was open to “Employees in the Public Service occupying a position in the National Capital Region”.

Mr. Goldsmith was hired as an external consultant, with another Department, at the time and was therefore not an employee of the public service. He was not within the area of selection. As a result, Mr. Goldsmith was wrongly screened into the process and his subsequent appointment to a position constituted an error, an omission or improper conduct, which affected the selection process.

In application of its powers, the deputy head hereby revokes Jarrod Goldsmith’s appointment…

…

10 According to the respondent, the grievor filed a complaint with the Public Service Staffing Tribunal (PSST) that is scheduled to be heard in April 2010.

11 The respondent referred me to subsection 208(2) of the PSLRA, which reads as follows:

          208. (2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

12 The respondent submitted that the grievor has another administrative procedure for redress available to him to deal with this matter. As such, the respondent maintained that an adjudicator does not have jurisdiction under the PSLRA to consider it.

B. For the grievor

13 The grievor replied to the respondent’s submissions on February 9, 2010. He did not object to the production of Ms. Chandonnet’s letter or the record of decision dated November 20, 2008. His submissions read as follows:

…

          The grievor was appointed to a position with Human Resources and Skills Development Canada in May, 2009. In November, 2009, the grievor was advised that, following an investigation, “anerror, omission or improper conduct affected the selection of a person for appointment.” It is the grievor’s position that the termination of his employment was made for alleged improper conduct, and as such, was disciplinary in nature.

          As the termination was disciplinary in nature, the Public Service Labour Relations Board has jurisdiction under Section 209(1)(b) to hear and determine the merits of the grievance. As such, subsection 208(2) of the PSLRA does not apply, as the PSEA does not provide the grievor with appropriate redress.

…

C. Respondent’s rebuttal

14 The respondent emphasized that the record of decision dated November 20, 2008 did not contain an allegation of misconduct by the grievor. The words “…an error, omission or improper conduct…” in the record of decision clearly referred to the appointment process. They cannot be read to give to the statement the meaning that the grievor has alleged.

IV. Reasons

15 Under subsection 15(3) of the PSEA, which reads as follows, a deputy head with delegated authority may investigate an appointment and revoke it:

          15. (3) Where the Commission authorizes a deputy head to make appointments pursuant to an internal appointment process, the authorization must include the power to revoke those appointments and to take corrective action whenever the deputy head, after investigation, is satisfied that an error, an omission or improper conduct affected the selection of a person for appointment.

16 The record suggests that the respondent used that authority to investigate the grievor’s appointment to his training design specialist position and was satisfied that “…an error, an omission or improper conduct affected the selection of a person for appointment …” within the meaning of subsection 15(3) of the PSEA. On that basis, it apparently revoked the appointment.

17 Under section 74 of the PSEA, which reads as follows, an employee whose appointment has been revoked by a deputy head may complain to the PSST:

          74. A person whose appointment is revoked by the Commission under subsection 67(1) or by the deputy head under subsection 15(3) or 67(2) may, in the manner and within the period provided by the Tribunal’s regulations, make a complaint to the Tribunal that the revocation was unreasonable.

18 There is no dispute that the complaint procedure to the PSST is “…an administrative procedure for redress…provided under [an] Act of Parliament, other than the Canadian Human Rights Act …” within the meaning of subsection 208(2) of the PSLRA. If the essential character of this grievance is to contest the respondent’s decision under the PSEA to revoke the grievor’s appointment, that matter cannot be a grievance under the PSLRA and cannot be referred to adjudication.

19 The grievor submitted that the termination of his appointment was instead disciplinary in nature. As such, the grievor would be entitled to refer the matter to adjudication under paragraph 209(1)(b) of the PSLRA. That provision reads as follows:

          209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee's satisfaction if the grievance is related to

…

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty …

20 In my view, the grievor has raised no serious argument that the action taken by the respondent had anything to do with a subject matter under paragraph 209(1)(b) of the PSLRA. The only substantive submission that he made was the following:

…

…the grievor was advised that, following an investigation, “an error, omission or improper conduct affected the selection of a person for appointment.” It is the grievor’s position that the termination of his employment was made for alleged improper conduct, and as such, was disciplinary in nature.

…

[Emphasis added]

21 The phrase “… an error, omission or improper conduct affected the selection of a person for appointment … [emphasis added]” is simply and solely a restatement of subsection 15(3) of the PSEA. In my view, it would be completely unreasonable to conclude on the sole basis of the respondent’s reference to the operative wording of the provision of the PSEA — a provision that also includes the terms “error” and “omission” — that the respondent acted with disciplinary intent or effect in reaction to “improper conduct,” or even that any improper conduct that may have been involved was associated with the grievor’s comportment rather than the actions of those persons who conducted the selection process.

22 Without anything else to suggest the possibility that the grievor did something that might be construed as misconduct that attracted a disciplinary response, or anything to even hint that the respondent might have acted for reasons other than those that it stated, the grievor has failed to raise an argument under paragraph 209(1)(b) of the PSLRA that has any reasonable chance of success.

23 I note that the grievor earlier reserved the right to “… present arguments that the termination was for reasons other than a breach of discipline or misconduct.” The grievor did not advance those arguments in his written submissions, his opportunity to do so. As a result, he also does not have an arguable case that the subject matter of his grievance falls under subparagraph 209(1)(c)(i) of the PSLRA.

24 I find that the essential character of the grievance was the revocation of the grievor’s appointment under the PSEA and that the PSEA provides an administrative procedure for redress for a complaint that involves that subject matter. An adjudicator under the PSLRA has no jurisdiction to consider the grievance in the circumstances of this case. It was improperly referred to adjudication.

25 As I mentioned earlier, the grievor has made a complaint to the PSST.

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

V. Order

27 The grievance is dismissed.

March 5, 2010.

Dan Butler,
adjudicator