FPSLREB Decisions

I. Individual grievance referred to adjudication

1 The grievor, Dr. Muhammed Ikram, was an employee of the Canadian Food Inspection Agency (“CFIA” or “the Agency”) until May 30, 2008. He grieved the non-renewal of his term employment saying his termination was unfair, unjust and in bad faith. He claimed he was not provided with a full opportunity to meet the Agency’s requirements nor the practical training, training tools or guidance to succeed. He referred his grievance to adjudication under paragraph 209(1)(d) of the Public Service Labour Relations Act (“the Act”).

2 The Agency objected to an adjudicator’s jurisdiction to hear this grievance because the grievor was not demoted or terminated as contemplated in paragraph 209(1)(d) of the Act.

3 This decision deals only with the preliminary matter of whether an adjudicator has jurisdiction to hear the merits of the grievance. At my request, the registry of the Public Service Labour Relations Board informed the parties I would not hear the merits of the grievance until the preliminary matter of jurisdiction had been decided.

II. Summary of the arguments

4 The grievor argues he was terminated after years of employment because he was unable to meet the Agency’s requirements. He asserts the CFIA used his term employment as a substitute probationary period for indeterminate staffing which is a violation of its Term Employment Policy. He argues he was not given the appropriate support, training or tools to succeed and to meet the requirements of his position, such as passing mandatory exams related to the work. He wonders why his position was not reviewed for indeterminate status according to a June 29, 2006 “Human Resources Bulletin”. He asks an adjudicator to look at all the correspondence around his termination and infer that the Agency acted improperly in ending his employment, thereby giving the adjudicator jurisdiction to hear the merits of his grievance.

5 The CFIA argues the grievor was a specified term employee whose term ended as contemplated in the last extension agreed to by both the Agency and Dr. Ikram. The employment relationship was expressly created as a specified term of employment in a letter of offer of term appointment of May 31, 2005 and was extended a number of times on the stated condition that the terms in the original letter of offer still applied. The Agency was not required to take any other action; it could merely let the extension expire. When a term expires, an adjudicator has no authority to inquire further into the reasons why the Agency allowed the term to expire and did not extend the term one more time. In support of its argument, the Agency relies on four cases: Dansereau v. National Film Board, [1979] 1 F.C. 100 (C.A.); Marta v. Treasury Board (Royal Canadian Mounted Police), 2001 PSSRB 31; Pieters v. Treasury Board (Federal Court of Canada), 2001 PSSRB 100; and Chouinard v. Deputy Head (Department of National Defence), 2010 PSLRB 133.

III. Legislative and jurisdictional framework

6 The Act sets out an adjudicator’s jurisdiction in this case in paragraph 209(1)(d). This is the provision of the Act the grievor is relying on in advancing his grievance to adjudication. Paragraph 209(1)(d) states:

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

…

(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

As of April 1, 2005, the Agency was designated under subsection 209(3) of the Act for the purposes of paragraph 209(1)(d): Public Service Labour Relations Act Separate Agency Designation Order, SOR/2005-59.

7 Paragraph 209(1)(d) of the Act and its predecessor have been interpreted many times by adjudicators and reviewed a number of times by the Federal Court and the Federal Court of Appeal. The four cases cited by the Agency review all the relevant case law and summarize the points from previous cases. I need not repeat the review done by previous adjudicators, but I do adopt and rely on the same conclusions and analysis in those four cases.

8 The four cases set out five key legal principles and messages which apply to the grievor’s case:

1. A specified term of employment is not a guarantee of employment past the end date written in the letter of offer.
2. When the end of a specified term of employment arrives, an employer does not need to take any other action to end the employment; it can rely on the terms of the letter of offer which say employment ends on a date already set.
3. Because an employer does not need to take action to end a specified term of employment, the employer’s motive at the time is not relevant or helpful in giving an adjudicator jurisdiction to hear a grievance. An employer’s motive may be relevant only when the employer ends the term early.
4. When an employee’s employment ends because a specified term of employment expired, there is no dismissal or termination within the meaning of subsection 209(1) of the Act.
5. If there is no dismissal or termination with the meaning of subsection 209(1) of the Act, an adjudicator has no jurisdiction to hear the merits of an employee’s grievance; an employer’s answer at the final level of the individual grievance process is the final and binding answer to the grievance.

IV. Summary of the facts about the type of employment status

9 I received 29 exhibits, which included the letter of offer of term appointment, numerous specified term extension documents, several policies, the June 29, 2006 “Human Resources Bulletin” and a volume of emails concerning the grievor’s completion of some exam requirements and the status of his employment. There were no witnesses called by either the grievor or the Agency.

10 From this evidence, I conclude the grievor and the Agency had a specified term of employment they agreed would end on May 30, 2008. The initial letter of offer of term appointment dated May 31, 2005, clearly defines the term and expressly excludes the possibility of an indeterminate appointment. Nothing the parties did after May 31, 2005 altered those terms of employment. The specific facts I rely upon are set out below.

11 On May 31, 2005, the CFIA offered the grievor a specified term of employment as a Veterinarian for the term June 27, 2005 to October 25, 2005. The letter of offer of term appointment confirms the specific terms of the employment status; it states, in part:

…

Offer of Term Appointment

Competition No. 05-CFIA-ABN-EDM-WC-234

On behalf of the Canadian Food Inspection Agency, I am pleased to offer you a specified period of appointment as indicated below:

… Duration of Employment: June 27, 2005 To: October 25, 2005

This appointment is made in accordance with the Canadian Food Inspection Agency Act.

Notwithstanding the stated anticipated specified period of employment, the requirement for your services may be for a shorter period depending upon the availability of work and the continuance of the duties to be performed. Nothing in this letter should be construed as an offer of indeterminate appointment, nor should you in any way anticipate indeterminate employment in the Agency as a result of this letter.

…

12 On November 7, 2005, the Agency offered and the grievor accepted a first extension of the specified term of employment to February 28, 2006. The second condition of the offer of extension continued the original terms and conditions of the term. It states:

2. 2. TERMS AND CONDITIONS OF EMPLOYMENT SPECIFIED IN YOUR ORIGINAL LETTER OF OFFER STILL APPLY.

13 The Agency made a number of further written offers and the grievor accepted a number of extensions, agreed in writing, to his specified term of employment, under the same conditions shown in the preceding two paragraphs:

• October 11, 2006: to December 29, 2006;
• December 15, 2006: to February 2, 2007;
• February 12, 2007: to March 30, 2007;
• April 12, 2007: to April 27, 2007;
• April 25, 2007: to June 1, 2007;
• May 18, 2007: to June 29, 2007;
• June 13, 2007: to August 3, 2007;
• August 31, 2007: to August 31, 2007;
• September 12, 2007: to November 30, 2007;
• November 20, 2007: to March 31, 2008; and
• March 28, 2008: to May 30, 2008.

14 There is an email exchange between Dan Dodge (Inspection Manager, Animal Health & Meat Programs, CFIA) and a Lesley Rhys-Williams on April 1, 2008, reporting the grievor’s “account” was extended to June 2008. There is, however, no written offer and acceptance of an extension of the specified term of employment after March 28, 2008 extending the term to June 30, 2008. As a result, I find the grievor’s term was agreed (by he and the Agency) to end on May 30, 2008; it was not amended by the parties to extend beyond May.

15 On May 26, 2008 the Agency sent the grievor a letter advising him his specified term of employment with the federal public service would end on May 31, 2008. He was paid to the end of the term.

16 The Agency’s current Term Employment Policy became effective on January 15, 2007. I find the policy applies to the grievor’s specified term of employment and the evidence shows the Agency acted according to the policy. The policy states, in part:

• A change from term to indeterminate employment status is treated as a full staffing process including considering of persons with priority status and being subject to the CFIA Staffing Recourse Policy.
• The extension of a specified term of employment represents a change to the letter of offer of term appointment. The existing term is amended to reflect the new end date and must be signed by both the delegated manager and the employee.
• A specified term employee ceases to be employed at the end of his term of employment established in the letter of offer of term appointment. No further notice is required.
• Specified term of employment may end early.

17 There is also the June 29, 2006 “Human Resources Bulletin” to all staff which deals with the Agency’s review of specified term employment situations. The bulletin says the CFIA will review terms, but does not oblige it to change the status of any term employee or offer indeterminate appointment to any employee. The bulletin states in part:

• CFIA Term Employment Policy requires managers to periodically review term employment situations, particularly lengthy ones to determine if there is a permanent requirement.
• CFIA continues its policy of no automatic rollover of specified term employees to indeterminate appointment.
• Each employee’s situation would be reviewed on an individual basis.

18 I find this bulletin does not help the grievor’s situation because it does not oblige the Agency to offer him indeterminate appointment.

V. Applying the legislative and case law principles to the grievor’s circumstances

19 All the undisputed evidence leads me to one conclusion: the grievor and the Agency had an agreed specified term of employment which was to end on May 30, 2008. It ended on May 30, 2008 when they did not renew it. There was no obligation to renew the term. There was no requirement to extend the term or convert the term to an indeterminate appointment.

20 This case fits squarely into the legal principles drawn from the Act and the case law discussed above. I conclude the grievor’s case does not involve a termination or dismissal within the meaning of paragraph 209(1)(d). Further, there is no indication, either in the evidence or the arguments that a demotion occurred or was contemplated. As a result, I have no jurisdiction to hear the merits of the grievance.

21 Although I have already decided I have no jurisdiction, I want to comment on the several emails the grievor submitted to attempt to show bad faith or improper motive on the Agency’s part. There are a number of email exchanges between different individuals at the Agency about the grievor’s specified term of employment and his results in certain tests applicable to a designation required by veterinarians. The grievor believes these emails show the Agency had another reason for not renewing his term. The emails show the Agency was aware that the grievor’s’ term was coming to an end. However, the documents do not raise a motive that could be relevant because the Agency took no steps to end the term early. I find these documents are not able to create jurisdiction where none exists.

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

VI. Order

23 The grievance is dismissed.

January 12, 2012

Deborah M. Howes
adjudicator