FPSLREB Decisions

Reasons for Decision

Introduction

1Dr. Lori Lishman, the complainant, alleges that the respondent, the Deputy Minister of Environment Canada, abused its authority in several ways when it selected her for lay-off. She asserts that her position is similar to others in the organization and alleges that the respondent failed to consider the similar nature of the other positions and, therefore, failed to assess her and the incumbents of those positions to determine who would be laid off. The complainant also alleges that the respondent’s decision to lay her off was due to discrimination on the basis of disability. The complainant further alleges that the respondent considered several inappropriate factors when it decided to lay her off. Finally, she submits that the respondent failed to document its decision-making process or provide adequate information to her about its decision to lay her off.

2The respondent asserts that the complainant's EN-ENG-04 position is not similar to others but rather is unique and, consequently, she was not selected within the meaning of the lay-off provisions in the Public Service Employment Act, S.C. 2003 c. 22, ss. 12, 13 (PSEA). The respondent therefore submits that the complainant is not entitled to make this complaint to the Public Service Staffing Tribunal (the Tribunal) and that the Tribunal has no jurisdiction to consider it. The respondent also asserts that the PSEA expressly prohibits complaints about the decision to lay off an employee. Nevertheless, the respondent denies any abuse of authority, and maintains that the decision to lay-off the complainant was based on eliminating the work required of her position; it was not a pretext, discriminatory or otherwise, to remove the complainant. As well, the respondent asserts that the complainant has failed to establish that she has a disability, which is the ground for her claim of discrimination.

3 The Public Service Commission (PSC) submits that the Tribunal’s jurisdiction in lay-off matters is limited to complaints regarding the selection of an employee for lay-off pursuant to a process for the selection of employees for retention and lay-off (SERLO process). The PSC further submits that s. 21(1) of the Public Service Employment Regulations, SOR/2005-334 (PSER), stipulates that only employees who occupy positions that are classified at the same occupational group and level can be assessed in a SERLO process. According to the PSC, no SERLO process was required in this case, since the complainant occupied the only EN-ENG-04 position in the part of the organization where the deputy head determined that lay-offs would occur. Consequently, the PSC’s position is that the complainant is not entitled to file a complaint under s. 65(1) of the PSEA and the Tribunal has no jurisdiction to consider this complaint.

4 For the reasons that follow, the Tribunal finds that the complainant is entitled to make this complaint under s. 65(1) of the PSEA; however, the complaint is dismissed on its merits. The complainant has not demonstrated that the respondent abused its authority when it selected her for lay-off.     

Background

5 The complainant occupies an EN-ENG-04 position in the Aquatic Ecosystem Management and Research Division (AEMRD), which is part of the Water Science and Technology Directorate (WSTD). The WSTD is part of the Science and Technology Branch in Environment Canada.

6 There is a dispute between the complainant and the respondent as to her official position title. The complainant uses the title Wastewater Processes Research Engineer, whereas the respondent uses the generic position title of Program Engineer. Documents tendered by the parties indicate the use of both titles. Since there is only one EN-ENG-04 position involved in this complaint, the Tribunal will refer to it as the complainant’s position or the ENG-04 position.

7 In a letter dated August 4, 2011, the complainant was informed that her position was impacted by decisions made as a result of government-wide fiscal restraint and that she was an affected employee.

8 On January 12, 2012, the complainant was further informed that due to a lack of work her ENG-04 position had been identified as surplus to requirements effective that date.  She was provided a guarantee of a reasonable job offer within the core public administration. However, she was also informed that if she refused a reasonable job offer, she would be laid off.

9 Dr. Lishman filed a complaint of abuse of authority with the Tribunal under s. 65(1) of the PSEA on January 27, 2012. She provided notice to the Canadian Human Rights Commission (CHRC) in accordance with s. 65(5) of the PSEA to indicate that she intended to raise an issue involving the interpretation and application of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). Prior to the hearing, the CHRC notified the parties and the Tribunal that it would not make submissions in this case.

Issues

10 The Tribunal must determine the following issues:

1. Does the complainant have the right to file a complaint under s. 65(1) of the PSEA?
2. Was the respondent required to consider other similar positions in the organization and conduct a merit-based assessment before deciding to lay off the complainant?
3. Did the respondent discriminate against the complainant in selecting her for lay-off?
4. Did the respondent abuse its authority by considering improper factors when it determined that her position would be eliminated and she would be laid off?

Analysis

Issue I: Does the complainant have the right to file a complaint under s. 65(1) of the PSEA?

11 The provisions governing lay-off are found in ss. 64 and 65 of the PSEA. The relevant parts of those sections read as follows:

64. (1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedule I, IV or V to the Financial Administration Act, the deputy head may, in accordance with the regulations of the Commission, lay off the employee, in which case the deputy head shall so advise the employee.

(2) Where the deputy head determines under subsection (1) that some but not all of the employees in any part of the deputy head’s organization will be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission.

65. (1) Where some but not all of the employees in a part of an organization are informed by the deputy head that they will be laid off, any employee selected for lay-off may make a complaint to the Tribunal, in the manner and within the time fixed by the Tribunal’s regulations, that his or her selection constituted an abuse of authority.

(2) No complaint may be made under subsection (1) against the decision to lay off employees, the determination of the part of the organization from which employees will be laid off or the number of employees to be laid off from that part.

(3) A complainant, every other employee in the part of the organization referred to in subsection (1), the deputy head and the Commission — or their representatives — are entitled to be heard by the Tribunal.

(…)

12 The respondent submits that the complainant occupies a unique position in the part of the organization where the deputy head determined that lay-offs would occur. It argues that since there were no other employees in similar positions, there was no requirement to conduct a SERLO process and, therefore, the complainant was not selected for lay-off. Consequently, the respondent argues, the complainant does not have the right to file a complaint under s. 65 of the PSEA.

13 The PSC submits that s. 64(2) stipulates that employees are to be selected for lay-off in accordance with s. 21(1) of the PSER which, in turn, directs deputy heads to conduct a merit-based SERLO process to select from among employees who occupy similar positions or perform similar duties at the same occupational group and level. The PSC submits that only where a deputy head has selected an employee to be laid off pursuant to a SERLO process does that employee have the right to complain to the Tribunal under s. 65(1) of the PSEA that his or her selection constituted an abuse of authority. According to the PSC, when no selection by a SERLO process is required, employees are not selected – they are identified for lay-off and do not have the right of recourse to the Tribunal.

14 The complainant submits that the word “selected” in s. 65(1) of the PSEA should be given its ordinary meaning which is, according to the Oxford Dictionary, “to carefully choose as being the best or most suitable”. She argues that, even if her position is unique, she was chosen from among other employees; in other words, she was selected for lay-off.

15 The complainant argues that s. 65(1) makes the complaint process available to all employees who are selected for lay-off in a situation where the relevant part of the organization has not been dismantled, closed, or shut-down completely. The fact that an employee occupies a unique position does not alter the fact that they are selected when some but not all of the employees in the part of the organization are laid off.

16 The complainant has challenged the interpretation of s. 65(1) of the PSEA that the Tribunal made in Molander v. Commissioner of the Royal Canadian Mounted Police, 2007 PSST 0042. In Molander, the Tribunal concluded that the complainant in that case held a unique position and, therefore, had not been selected for lay-off and did not have the right to bring a complaint to the Tribunal under s. 65(1) of the PSEA.

17 Following Molander, it was not until 2012 that the Tribunal considered any other lay-off complaints. The Tribunal’s findings in Molander were not challenged in Maclean v. Secretary of the Treasury Board of Canada Secretariat, 2012 PSST 0021 or Tran v. the Commissioner of the Royal Canadian Mounted Police, 2012 PSST 0033.

18 In the more than five years since Molander was decided, the Tribunal has considered hundreds of appointment complaints, and case law has been developed that highlights the requirement to interpret the PSEA broadly. In Brown v. Canada (Attorney General), 2009 FC 758, the Federal Court held that the Tribunal must consider the overall context of an appointment, including all relevant matters, even if those matters fall outside the Tribunal’s direct authority. The Federal Court found, in Canada (Attorney General) v. Beyak, 2011 FC 629, that it was reasonable for the Tribunal to interpret that the PSEA allows it to make recommendations. In Canada (Attorney General) v. Lahlali, 2012 FC 601, the Federal Court agreed with the Tribunal’s broad approach to interpreting abuse of authority, and the Federal Court of Appeal made a similar finding in Kane v. Canada (Attorney General), 2011 FCA 19. The Supreme Court of Canada ultimately overturned the Federal Court of Appeal’s decision in Kane; however, it did not disturb that Court’s finding with respect to the Tribunal’s interpretation of abuse of authority.

19 The Tribunal strives to be consistent, and any departure from a previous determination should be for good reason, after careful consideration. Nevertheless, with respect to its own decisions, the Tribunal is not bound by the principle of stare decisis, which means “to stand by that which is decided”.

20 After carefully considering the relevant provisions in the PSEA and the arguments of the parties, the Tribunal concludes that its interpretation of s. 65(1) of the PSEA in Molander was too narrow and created a bar to recourse that the legislation does not intend.

21 Section 64 of the PSEA gives a deputy head the authority to lay off employees when the work in the organization is reduced, eliminated or moved outside the public service, as it is defined in s. 2(1) of the PSEA. It also authorizes a deputy head to manage lay-offs by identifying the part of the organization that is affected by the reduction, elimination or transfer of work. When, even within the identified part of the organization, only some employees will be laid off, s. 64 of the PSEA stipulates that the employees to be laid off must be selected in accordance with the PSER.

22 Section 65(1) of the PSEA provides recourse to the Tribunal for employees who have been informed that they will be laid off, when only some employees in the identified part of the organization will be laid off.

23 In the Tribunal’s view, Parliament cannot have intended that recourse to the Tribunal should be denied because a deputy head’s requirements can be met by eliminating only one position and laying-off only one employee. Moreover, there is no dispute among the parties that the words “some but not all” in ss. 64(2) and 65(1) express a concept that is different from both “all” and “none”. They agree that, in this context, those words mean one or more. The dispute among the parties arises from the meaning of “selected” in those two provisions.

24 In the matter of statutory interpretation, the complainant referred to the Interpretation Act, R.S.C. 1985, c. 1-21, and the PSC drew the Tribunal’s attention to its Guide on the Selection of Employees for Retention or Lay-off. However, the parties did not submit jurisprudence or refer to the writing of any legal scholar in support of their respective positions on interpreting the lay-off provisions contained in the PSEA.

25 Purposive analysis is one approach to statutory analysis. Under this approach the legislation’s purpose is an essential part of the entire context. It requires that the purpose of the legislation be examined and the words in a provision be interpreted in relation to the whole scheme of the Act to help determine Parliament’s intent. In Covert v. Nova Scotia (Minister of Finance), [1980] S.C.J. No. 101, [1980] 2 S.C.R. 774, at 807 (S.C.C.), the Supreme Court of Canada held that “[t]he correct approach, applicable to statutory construction generally, is to construe the legislation with reasonable regard to its object and purpose and to give it such interpretation as best ensures the attainment of such object and purpose”.

26 The preamble to the PSEA sets out its object and purpose, which is to provide public service managers with the flexibility necessary to manage and to have a public service that is characterized by fair, transparent employment practices, respect for employees and recourse to resolve issues in dispute. The Tribunal notes that the marginal note for s. 65(1) of the PSEA is “Complaint to the Tribunal re lay-off”.

27 Another approach to statutory interpretation is the plain meaning approach, which was articulated by the Supreme Court of Canada in Canada Trustco Mortgage Co. v. Canada, [2005] S.C.J. No. 56, 2005 S.C.C. 54, at para. 10, which states in part that “[w]hen the words of a provision are precise and unequivocal, the ordinary meaning of the words plays a dominant role in the interpretive process”.

28 The French version of s. 65(1) does not contain any reference to selection. It provides the right to make a complaint to the Tribunal that “la décision de le mettre en disponibilité constitue un abus de pouvoir”. Moreover, the wording found in s. 65(1) of the PSEA is not ambiguous. The Tribunal has determined that the plain meaning of the word “selected” is “to have carefully chosen”. This is the meaning to be applied in the context of a complaint brought to the Tribunal under s. 65(1) of the PSEA.

29 Furthermore, the purpose of s. 21 of the PSER is not to explain or interpret s. 65(1) of the PSEA. In accordance with s. 22(2)(i) of the PSEA, the purpose of s. 21 of the PSER is to instruct deputy heads “respecting the manner of laying off employees and the manner of selecting employees to be laid off, for the purposes of section 64”. Section 21(1) of the PSER reads as follows:

21. (1) If the services of one or more employees of a part of an organization are no longer required in accordance with section 64 of the Act, the deputy head shall assess the merit of the employees employed in similar positions or performing similar duties in the same occupational group and level within that part of the organization, and identify, in accordance with merit, the employees who are to be retained having regard to the continuing functions of that part of the organization and the remaining employees who are to be advised that their services are no longer required and are to be laid off.

30 Section 21 of the PSER does not define selection. In accordance with the authority granted to the PSC under s. 22(2)(i) of the PSEA, s. 21 of the PSER sets out a process or manner of selecting employees for lay-off. Section 21 of the PSER stipulates that in situations where two or more employees in the identified part of the organization occupy similar positions or perform similar duties at the same occupational group and level, the decision as to which employee or employees will remain and which ones will be laid off must be based on merit.

31 The PSER does not set out any manner for selecting an employee in other circumstances, notably when an employee occupies a unique position. This does not mean, however, that such an employee was not selected – or carefully chosen – for lay-off from among other employees in the part of the organization. In the Tribunal’s view, such an employee was selected for lay-off, albeit under circumstances other than those contemplated in s. 21 of the PSER.

32 Moreover, the Tribunal cannot accept the position taken by the respondent and the PSC that an employee would only have recourse to the Tribunal when that employee was selected for lay-off from among a group of employees in similar positions or performing similar duties at the same occupational group and level. If that were the case, in every situation where there is such a similar group, it would effectively become the identified part of the organization referred to in ss. 64(2) and 65(1) of the PSEA. However, the part of the organization and the similar group are not the same thing. Section 21 of the PSER specifically distinguishes the similar group from the part of the organization identified by the deputy head by clearly stating that the former is found within the latter. The similar group therefore represents a subset of employees within the relevant part of the organization. Section 21 of the PSER states that when such a subset exists, the selection of employees to be laid off is to be based on merit.

33 In the Tribunal’s view, the PSEA does not support the position espoused by the respondent and the PSC for the following reasons. First, according to s. 65(1) of the PSEA, it is an employee who is selected from among others in the part of the organization identified by the deputy head – not one who is selected from among others in the similar group – that has the right to file a complaint.

34 Secondly, s. 64(2) of the PSEA gives the deputy head exclusive authority to identify the part of its organization where lay-offs will occur. The PSC has no authority in this matter and has no legal basis to determine or change the part of the deputy head’s organization that will be subject to lay-offs. Its general authority to make regulations, which is set out in s. 22 of the PSEA, gives the PSC the authority to make regulations “relating to matters under its jurisdiction”. The identification of the part of an organization where lay-offs will occur falls outside the jurisdiction of the PSC.

35 It is important to note as well that the right to be heard in a complaint is provided to those who have a stake in its outcome. In complaints filed under s. 65(1) of the PSEA, s. 65(3) of the PSEA provides that “every other employee in the part of the organization” has the right to be heard.

36 It cannot have been Parliament’s intention to exclude an employee who is chosen for lay-off from the right of recourse to the Tribunal, based simply on the unusual definition of the word “selected” that is being proposed by the respondent and the PSC. Furthermore, the concept of selection is not found in the French version of the recourse provision in s. 65(1) of the PSEA.

37 The respondent and the PSC also submit that, in the absence of any selection following a SERLO process, this complaint is against the deputy head’s decision to lay off the complainant. They argue that the complainant is prohibited from making such a complaint, based on s. 65(2) of the PSEA, which preserves a deputy head’s authority to manage its resources and determine the composition of the workforce, in accordance with the Financial Administration Act, R.S.C. 1985, c. F-11 (FAA).

38 Section 65(2) of the PSEA reads as follows:

(2) No complaint may be made under subsection (1) against the decision to lay off employees, the determination of the part of the organization from which employees will be laid off or the number of employees to be laid off from that part.

(2) Le paragraphe (1) ne permet pas de se plaindre de la décision de procéder par mise en disponibilité, de la détermination de la partie de l’administration au sein de laquelle se fait la mise en disponibilité ni du nombre de fonctionnaires qui sont mis en disponibilité.

39 In the Tribunal’s view, s. 65(2) of the PSEA prohibits an employee from making a complaint against, amongst other things, a deputy head’s broad managerial decision that lay-offs will occur in the organization. It does not, however, preclude an individual employee from making a complaint of abuse of authority about the deputy head’s specific decision that it will be that employee who will be laid off. The use of the plural “employees” in the English version of s. 65(2) of the PSEA signals a general, strategic decision that lay-offs will be required in the context of managing the organization’s business and resources, rather than a decision regarding one individual employee. Similarly, the French version of s. 65(2) of the PSEA prohibits a complaint about the decision to proceed by way of lay-off.

40 Furthermore, if this provision were to be interpreted in the manner proposed by the respondent and the PSC, it would be inconsistent with the French version of s. 65(1) of the PSEA, which grants recourse to an employee on the ground that “la décision de le mettre en disponibilité constitue un abus de pouvoir”.

41 To summarize, the Tribunal finds that s. 21 of the PSER does not bar an employee who is selected for lay-off and whose circumstances fall outside those described in s. 21, from filing a complaint under s. 65(1) of the PSEA. The word “selected” in the English version of s. 65(1) of the PSEA is not circumscribed by s. 21 of the PSER. The Tribunal has determined that it is appropriate to give the word “selected” its ordinary meaning and, thus, it does not preclude an employee in a unique position from making a complaint to the Tribunal under s. 65(1) of the PSEA. While s. 65(2) of the PSEA prohibits a complaint to the Tribunal against a deputy head’s broad, managerial decision that lay-offs are required in the organization, it does not prohibit a complaint of abuse of authority from an employee regarding the specific decision to lay them off.

42 The Tribunal concludes that s. 65(1) of the PSEA provides recourse for any employee in the part of the organization identified by the deputy head who is informed that they will be laid off, except when the deputy head has completely eliminated the part of the organization that it has identified. The ground for complaint is abuse of authority which, according to s. 2(4) of the PSEA, includes bad faith and personal favouritism. As well, as the Tribunal has held in numerous decisions, a complaint of abuse of authority can be based on, or include, an allegation of discrimination. While abuse of authority is more than simply errors and omissions, some actions may constitute such serious errors or important omissions that they amount to abuse of authority even if unintentional. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at paras. 72 to 74.

43 The respondent identified the Aquatic Ecosystem Management and Research Division (AEMRD) as the part of the organization in which lay-offs would occur. The complainant was informed that she would be laid off and, at that time, only some employees in the AEMRD would be laid off. The Tribunal therefore finds that the complainant has the right to bring this complaint under s. 65(1) of the PSEA.

44 The Tribunal's mandate is found in s. 88(2) of the PSEA: “The mandate of the Tribunal is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77 and 83”. Accordingly, the Tribunal has jurisdiction to consider this complaint.

Issue II: Was the respondent required to consider other similar positions in the organization and conduct a merit-based assessment before deciding to lay off the complainant?

45 The complainant’s position is the only ENG-04 position in the AEMRD. The parties disagree as to whether the respondent was required to examine the similarity of the complainant’s position to other positions and assess the complainant and other employees before determining that she would be laid off.

46 The complainant submits that the respondent abused its authority by failing to consider whether her position was similar to others in the AEMRD, even though they are not classified at the same group and level. The respondent and the PSC argue that deputy heads are required, under s. 21 of the PSER, to consider the question of whether positions are similar only when they are at the same occupational group and level.

47 When one or more, but not all employees, in the identified part of an organization will be laid-off, the manner of selecting those employees is governed by s. 21 of the PSER. Section 21 of the PSER reads as follows:

21. (1) If the services of one or more employees of a part of an organization are no longer required in accordance with section 64 of the Act, the deputy head shall assess the merit of the employees employed in similar positions or performing similar duties in the same occupational group and level within that part of the organization, and identify, in accordance with merit, the employees who are to be retained having regard to the continuing functions of that part of the organization and the remaining employees who are to be advised that their services are no longer required and are to be laid off.

21. (1) Lorsque les services d’un ou de plusieurs fonctionnaires d’un secteur de l’administration ne sont plus nécessaires aux termes de l’article 64 de la Loi, l’administrateur général évalue le mérite des fonctionnaires qui occupant des postes semblables ou exercent des fonctions semblables des mêmes groupe et niveau professionnels dans ce secteur et désigne, en fonction du mérite, lesquels seront conserves pour l’accomplissement des fonctions permanentes de ce secteur de même que ceux des fonctionnaires restants qui seront informés que leurs services ne sont plus nécessaires et qui seront mis en disponibilité.

48 According to the complainant, the stipulation under s. 21 of the PSER, with respect to same occupational group and level applies to similar duties but not to similar positions. However, to support her view that her ENG-04 position is similar to an ENG-03 position, the complainant presented evidence of the similarity of the duties of the two positions.

49 The Tribunal finds that the complainant has not demonstrated the difference between positions and duties, or established that similar positions need not be at the same occupational group and level according to s. 21 of the PSER. None of the parties made submissions regarding the difference between similar positions and similar duties.

50 The Tribunal finds that the plain meaning of the English and French versions of s. 21 of the PSER is that the words “in the same occupational group and level” and “des mêmes groupe et niveau professionnels” apply to both similar positions and similar duties.

51 It is important to note as well that positions at the same occupational group and level may not be similar if their duties are different, as the Tribunal’s analysis in Maclean illustrates.

52 The Tribunal finds that, under s. 21 of the PSER, when one or more but not all employees will be laid off in the identified part of the organization, a deputy head is required to conduct a merit-based assessment of employees who a) occupy positions that are classified at the same occupational group and level and are similar, or b) perform similar duties at the same occupational group and level.

53 Accordingly, the complainant’s assertion that an employee occupying an ENG-03 position should have been declared affected and assessed along with her is not supported by the law. The respondent identified the AEMRD as the part of the organization from which lay-offs would occur. Although the complainant provided considerable detail about the similarities between her position and the ENG-03 position in the AEMRD, the Tribunal finds that, since the complainant’s position is the only ENG-04 position in the AEMRD, the respondent was not required to consider whether any other position was similar for the purpose of conducting a SERLO process under s. 21 of the PSER.

54 It should be noted that the complainant made submissions regarding the part of the organization identified by the respondent in this case. She does not allege that the part that was identified is unreasonable or inappropriate, but rather that the respondent did not make a deliberate decision and that it failed to clearly inform the complainant of the part of the organization that had been identified.

55 According to the respondent, the AEMRD was identified as the part of the organization where lay-offs would occur. This information, however, was omitted from the complainant’s affected letter, which states that government-wide fiscal restraint will have an “impact on the continuance of existing positions in Science and Technology Branch, Water Science and Technology Directorate” (WSTD). Also, the complainant’s surplus letter makes no reference to any specific part of the organization.

56 The first step in selecting employees for lay-off is to identify the affected part of the organization. That information is important for an employee who is considering whether to file a complaint about their lay-off. It also determines who is to be named by the respondent as a party to a s. 65 complaint. As noted earlier in these reasons, s. 65(3) stipulates that “every other employee in the part of the organization, referred to in subsection (1)” is entitled to be heard by the Tribunal concerning a complaint under s. 65(1) of the PSEA. The Tribunal notes that the respondent erred when it informed the Tribunal that there were no parties to this complaint other than the complainant, the respondent and the PSC.

57 The respondent should have clearly informed the complainant that the AEMRD had been identified as the part of the organization where lay-offs would occur. The Tribunal finds that its failure to do so was an omission. The respondent also erred in identifying the parties to this complaint. However, these do not constitute an abuse of authority in this case.

58 It is clear from the preamble and the scheme of the PSEA that abuse of authority requires more than mere errors or omissions. The Tribunal’s body of jurisprudence has established that the degree to which they are serious, and their consequences, will determine whether errors or omissions constitute an abuse of authority. See, for example, Tibbs v. Deputy Minister of National Defence 2006 PSST 0008, Poirier v. Deputy Minister of Veterans Affairs, 2011 PSST 0003, Morgenstern v. Commissioner of the Correctional Service of Canada, 2010 PSST 0018, and Steindl v. Deputy Minister of Health Canada, 2010 PSST 0024.

59 In this case the complainant has not established that the respondent’s omission or error had any serious consequence with respect to her selection for lay-off. Nor was she prevented from making a complaint, or hindered in preparing or presenting her case to the Tribunal. Therefore, while the Tribunal cautions the respondent to take more care in these matters, the Tribunal does not find that the error and omission amount to an abuse of authority.

60 Based on the facts and in accordance with s. 21 of the PSER, the Tribunal finds that the respondent was not required to consider the similar nature of other positions in the AEMRD or conduct a merit-based assessment before deciding to lay-off the complainant.

Issue III: Did the respondent discriminate against the complainant in selecting  her for lay-off?

61 The complainant alleges that the respondent assigned new duties to her because it believed that she could not continue her normal duties due to her disability. She submits that she was subsequently selected for lay-off based on her new assignment.

62 Section 65(7) of the PSEA authorizes the Tribunal to interpret and apply the CHRA in determining whether a complaint filed under s. 65(1) of the PSEA is substantiated.

63 Pursuant to s. 7 of the CHRA, it is a discriminatory practice to directly or indirectly refuse to employ or continue to employ any individual, or, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Section 3 of the CHRA lists the prohibited grounds of discrimination, which include disability or a perceived disability.

64 In determining whether a respondent has engaged in a discriminatory practice, a complainant must first establish a prima facie case of discrimination. In Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 to 558 (para. 28), the Supreme Court of Canada set out the test for establishing a prima facie case of discrimination:

The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer.

65 The complainant need only show that the alleged discrimination was one of the factors, not the sole or even the main factor, in the respondent’s decision to lay her off, for a prima facie case to be met. See, for example, Rosenthal v. President of the Federal Economic Development Agency for Southern Ontario, 2011 PSST 0022 at para. 29.

66 The Tribunal must therefore determine whether the complainant's arguments and evidence are sufficiently complete to justify a finding of discrimination in the absence of a rebuttal or explanation from the respondent. At this stage of the analysis, the Tribunal cannot consider the respondent’s answer before determining whether a prima facie case of discrimination has been established. See Lincoln v. Bay Ferries Ltd., 2004 FCA 204, at para. 22 (F.C.A.).

Has the complainant established a prima facie case of discrimination?

67 The Tribunal is satisfied that the complainant has established a prima facie case of discrimination. She testified that she experienced a high level of stress due to her work environment and her relationship with her immediate supervisor. She also testified that she had multiple conversations with her supervisor and the Section Head about her stress, before going on leave in October 2010, for approximately two months. Prior to her leave, the complainant was assigned work related to four projects, one of which was the National Research Agenda.

68 After her return to work, the complainant and her supervisor discussed the possibility of a four-day work week, which her doctor had recommended as an accommodation measure. During a meeting on January 10, 2011, with her supervisor, the Section Head and Dr. John Lawrence, Director of the AEMRD, the complainant received a formal agreement for a four-day work week. She testified that no other accommodation was required.

69 However, the complainant testified that at the January 10, 2011 meeting, she was also informed that from that date until April 10, 2011, she would work exclusively on the National Research Agenda. The complainant submits that this assignment was an additional accommodation measure the respondent took without informing or consulting her. She points out that Dr. Lawrence testified that he decided that it was best for the complainant to focus all her attention on the National Research Agenda, to relieve the pressure and help alleviate her stress. On August 4, 2011, the complainant was informed that she was an affected employee. She testified that she was told that Environment Canada was reducing its research activities and, since she worked primarily on research, she was chosen for elimination. On January 12, 2012, the complainant’s position was declared surplus to requirements and she was informed that she may be laid-off.

70 Human rights case law has established that the definition of disability is broad and includes a perceived disability. In Quebec (Commission des droits de la personne et des droits de la Jeunesse) v. Montréal (City); Quebec (Commission de droits de la personne et des droits de la Jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 SCR 665, the Supreme Court of Canada held that the right to equality and protection against discrimination cannot be achieved without recognizing that discrimination may be based on perceptions as much as on actual limitations. This was a case under the Quebec Charter of Human Rights, which is the provincial human rights code; therefore, the principles extend to the CHRA.

71 The Tribunal finds that the complainant has established a prima facie case of discrimination. The complainant suffered from stress and in order to manage it she required a period of leave, followed by a reduced work week as accommodation upon her return to work. She has demonstrated that the respondent believed that she was not able to perform her regular work because of her continued stress, and assigned her to work exclusively on the National Research Agenda. Subsequently, the complainant was informed that she would be laid off because of a shift from research work to regulatory support in the AEMRD.

72 Since the complainant has established a prima facie case of discrimination, the onus shifts to the respondent to provide a reasonable explanation to demonstrate that its perception of the complainant’s disability was not a factor in its decision to lay her off. The explanation cannot be a mere pretext for discrimination. See Lincoln v. Bay Ferries Ltd., 2004 FCA 204, at paras. 22-23.

Has the respondent provided a reasonable explanation for its decision?

73 The Tribunal finds that the respondent has provided a reasonable, non-discriminatory explanation of its reason to eliminate the complainant’s position and lay her off. Although the Tribunal is concerned that the respondent took measures to accommodate the complainant’s stress based on its belief of what was needed, without consulting her, the evidence does not support the complainant’s assertion that the respondent decided to lay her off based on her assignment to work exclusively on the National Research Agenda.

74 Dr. Lawrence was called to testify for the respondent. He explained that he had hoped to relieve some of the pressure faced by the complainant at work by having her focus on one project rather than several. Nevertheless, according to Dr. Lawrence, the National Research Agenda was a significant assignment, with a higher priority than the complainant’s other recent assignments. He explained that Environment Canada is one of several partner organizations involved in the National Research Agenda, each with its own views and a stake in the outcome. The National Research Agenda has a high priority and profile in Environment Canada, and is followed closely by the Director General. Dr. Lawrence also explained that, after the three-month period of focussing completely on the National Research Agenda, the complainant resumed her work on her other projects. The complainant did not contest Dr. Lawrence’s testimony on this matter.

75 Dr. Lawrence stated that early in the spring of 2011, he and the other Directors in the WSTD were each instructed by the Director General to prepare an organizational scenario reflecting a workforce reduction of ten percent. He stated that he had discussions with the Director General in April, May and June of 2011, and in the summer of 2011, seven employees in the AEMRD, including the complainant, were issued affected letters. There was no evidence presented as to whether any of the other six employees received lay-off notices.

76 Dr. Lawrence testified that he recommended to the Director General that the complainant’s ENG-04 position be eliminated because Environment Canada had shifted its focus from research to its regulatory responsibilities. He explained that the AEMRD had been conducting research to better understand the effects of humans on aquatic ecosystems, in order to develop conservation strategies and remediation techniques to relieve stresses on freshwater ecosystems in Canada. However, in 2011, there was a decline in the level of priority given to urban water management in Environment Canada and new Canada-wide effluent regulations had come into effect. As a result, there would no longer be a requirement to develop the complex conceptual research project designs, or large data collection and interpretation processes that represent the type of work performed at the ENG-04 level. According to Dr. Lawrence, any future research studies could be performed by more junior ENG employees under the supervision of the supervisor and the Section Head.

77 Dr. Lawrence’s testimony on the future direction of the AEMRD’s work, the type of projects and studies that would be required, and the level of the positions needed to perform that work was not refuted. Although the complainant disagrees with Dr. Lawrence and believes that the organization needs someone with her breadth and depth of experience, she has not provided evidence to contradict his assessment of the situation. The Tribunal also notes that in the spring of 2012, the AEMRD was eliminated entirely. This eventuality was not known when the respondent decided to lay off the complainant; however, it supports Dr. Lawrence’s testimony about the future of urban wastewater management in Environment Canada.

78 The Tribunal finds that the reasons presented by the respondent for eliminating the ENG-04 position are consistent with its evidence concerning the shift in focus and the future work requirements in the AEMRD. The respondent has also been consistent in stating its reasons for laying-off the complainant. Dr. Lawrence provided these reasons verbally to the complainant when she was identified as an affected employee in August 2011. The same reasons are stated in letters to the complainant from the Director General and the Assistant Deputy Minister, which are replies to a grievance filed by the complainant. Throughout his testimony, Dr. Lawrence maintained that the complainant was selected for lay-off because the complexity of the research work required by her position would no longer be done in the AEMRD.

79 The Tribunal finds that the respondent has provided a reasonable, non-discriminatory explanation for the decision to eliminate the complainant’s position and lay her off. The respondent should have consulted the complainant before implementing a work assignment designed to address her stress; however, the Tribunal is satisfied that the assignment of the complainant to work exclusively for a short period of time on the National Research Agenda was not a factor in the respondent’s decision to eliminate her ENG-04 position. No evidence was presented by the complainant to demonstrate that the respondent’s explanation was a pretext for discrimination. Accordingly, the allegation of discrimination is not substantiated.

80 The complainant has not demonstrated that the respondent discriminated against her in selecting her for lay-off.

Issue IV: Did the respondent abuse its authority by considering improper factors when it determined that her position would be eliminated and she would be laid off?

Did the respondent consider the specific work assignments of employees rather than the duties they perform?

81 The complainant asserts that the respondent decided to lay her off based on the specific projects that were assigned to her as opposed to other employees. She submits that it should have considered the duties she performs, which she asserts are similar to those of the ENG-03 position.

82 The Tribunal finds that, in this case, the duties of the ENG-04 and the ENG-03 positions would not have been a helpful consideration in determining what position to eliminate. The duties alone do not entirely describe the work requirements, and they do not sufficiently distinguish one position from the other. As the complainant points out, there are many similarities between her ENG-04 duties and those of her ENG-03 colleague; and yet, it cannot be presumed that the positions are improperly classified.

83 Dr. Lawrence acknowledged that he is more familiar with the duties of some positions in the AEMRD than he is with others. Nevertheless, Dr. Lawrence has been involved in Environment Canada’s water-related research activities since 1973, and has held his current role since the late 1980s. His explanation that the complexity of the projects and studies and the intellectual effort required is what differentiates the ENG-04 from the ENG-03 makes sense. Moreover, the complainant’s own testimony that her projects tend to be larger and more complex than those of her ENG-03 colleague is consistent with the explanation provided by Dr. Lawrence with respect to the differences between the positions.

84 The complainant also submits that she was “set-up to fail” in her assignment to work on the National Research Agenda. Dr. Lawrence explained that the National Research Agenda has a high priority and profile in Environment Canada. There are multiple partners involved, each with their own objectives, making it a complex project. The complainant testified that she had concerns about the timelines that had been established, which she expressed to her supervisor, the Section Head and Dr. Lawrence. The evidence shows that management became frustrated with the complainant’s views on the assignment; yet, Dr. Lawrence met with her to discuss it and she was invited to propose a new work plan that was acceptable to her while respecting the time and resource limitations.

85 Based on Dr. Lawrence’s testimony, the project to put in place the National Research Agenda was expected to take from 12 to 15 months. The initial three-month work assignment given to the complainant on January 10, 2011, was to take the initial steps, not complete the project. The complainant did not produce any evidence to contradict this testimony.

86 The complainant has not demonstrated that the respondent should have considered the specific duties of the positions in this case, nor has she demonstrated that the respondent based its decision on the specific projects it assigned to employees. Neither has the complainant demonstrated that her assignment to the National Research Agenda was designed so that she would fail.

Was it improper for the respondent to consider the vertical nature of the organization?

87 Dr. Lawrence testified that, in reaching his decision, he considered that the organization structure did not need to be as vertical as it was. The complainant challenges this reasoning. According to her, since all the positions in her group report to the supervisor, eliminating her position would not change the reporting structure. However, Dr. Lawrence did not claim to be implementing a change in the reporting hierarchy. His reasoning was that, since all the positions in the group report to the ENG-05 supervisor, he could eliminate one level of work in the group without an impact on the reporting relationships.

88 The complainant did not provide any evidence to support a claim that it would be inappropriate to consider how the elimination of a position will impact the other positions in the organization, including whether it will increase or decrease the number of employees to be supervised by a manager. In this case, Dr. Lawrence was considering eliminating a senior ENG position. The Tribunal finds that it was appropriate to consider whether a new reporting structure would need to be established as a consequence. The fact that Dr. Lawrence considered the impact on a small group within the identified part of the organization – the AEMRD – does not make it an irrelevant or inappropriate consideration. The small group in which the complainant worked was the group that would potentially be impacted.

Did the respondent improperly consider the complainant’s difficult relationship with her supervisor or her work performance?

89 The complainant submits that Dr. Lawrence was influenced by her Section Head and her supervisor, who were dissatisfied with the complainant and her work performance.

90 The complainant has established that she and her supervisor had difficulties in their relationship. Her testimony about a disagreement between them, the tension that resulted and continued after her leave, as well as her testimony that her supervisor excluded her from meetings she should have attended and that he gave her inadequate notice of meetings at which she had to make presentations, is all uncontested.

91 There is also evidence that the complainant’s supervisor had issues with her work performance. Dr. Lawrence knew that the Section Head had had concerns about the complainant’s productivity and, according to Dr. Lawrence’s testimony, he, the Section Head and the supervisor were all concerned about whether the complainant would focus on the National Research Agenda work she had been assigned.

92 On the second day of the hearing, the complainant requested an adjournment to call an additional witness to introduce into evidence an email from the complainant’s Section Head to her supervisor expressing his frustration with the complainant’s “effort spent on providing why (the National Research Agenda assignment) will not work, rather than getting on with the job”. The Tribunal denied the request to adjourn because the complainant had been in possession of the email for more than ten months prior to the hearing. She had ample time to arrange for the attendance of the witness well in advance of the hearing. The Tribunal accepted the email into evidence and advised the parties that they could make submissions in argument regarding how it should be treated by the Tribunal. None of the parties made any submissions.

93 On its face, the email in question supports other evidence which shows that Dr. Lawrence and his subordinate managers believed that they would need to manage the complainant so that she would focus on the short-term objectives related to the National Research Agenda. Nevertheless, the complainant was assigned this important project, which indicates that her managers had confidence in her abilities. Furthermore, the complainant testified that, when she received her affected letter in August 2011, she specifically asked and Dr. Lawrence told her that her performance was not the reason she had been identified as an affected employee. Since then Dr. Lawrence, as well as other senior officials who addressed the complainant’s grievance, has maintained that she was selected for lay-off because the work of her position would not be required in the future organization, not because of factors related to her personally or her performance as an employee.

94 Dr. Lawrence maintained, throughout his testimony, that he never discussed where workforce reductions in the AEMRD would be made with anyone but the Director General. He told the complainant in August 2011 that his regular discussions with his Section Heads about the ongoing and upcoming work informed his workforce reduction decisions; however he testified that the decision to lay off the complainant was made by him and the Director General. The complainant did not provide any evidence that Dr. Lawrence and the Director General were improperly influenced by the complainant’s supervisor or Section Head regarding the decision to lay off the complainant. Neither has the complainant demonstrated that her relationship with her supervisor or her work performance were factors in the decision to lay her off. The Tribunal also notes that the complainant has not established that it would be inappropriate to consider an employee’s work performance when making a lay-off decision.

95 The complainant also submits that the respondent failed to adequately document its decision or inform her of its reasons for her lay-off. The Tribunal finds that there was very little documentation generated and produced about this lay-off decision. The respondent’s explanation is that this lay-off decision was made in the course of private discussions between Dr. Lawrence and the Director General.

96 It is of utmost importance that the reasons for a lay-off decision be fully explained to an employee. Although the respondent verbally informed the complainant of the reasons for her lay-off at the time she was told that she was an affected employee, it did not provide specific reasons in either the affected letter or the surplus letter it issued to the complainant. In circumstances where an employee is being told that they will be laid off, fairness and transparency dictate that they be fully informed of who made the decision and the reasons for it. As well, it would be good practice to document such a decision.

97 The Tribunal concludes that the complainant has not established that the respondent considered any improper factors when it made its decision to lay her off. The Tribunal also concludes that, while the respondent failed to fully document its lay-off decision, this error does not reach the level of abuse of authority. Accordingly, these allegations of abuse of authority are not founded.

Decision

98 For all these reasons, the complaint is dismissed.

Merri Beattie
Member

Parties of Record

Tribunal Files:

2012-0037

Style of Cause:

Lori Lishman and the Deputy Minister of Environment Canada

Hearing:

September 26, 27 and 28, 2012
Hamilton, Ontario

(Written submissions concluded October 18, 2012)

Date of Reasons:

April 5, 2013

APPEARANCES:

For the complainant:

Maeve Sullivan

For the respondent:

Lesa Brown

For the Public
Service Commission:

John Unrau