FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Badreddine Landoulsi, was a trainee under the Treasury Board of Canada Secretariat’s (TBS) Management Trainee Program (MTP) and held a position at the PL-03 group and level at Public Works and Government Services Canada (PWGSC), Corporate Services and Strategic Policy Branch. In June 2013, the respondent, the Deputy Minister of PWGSC, identified him for lay-off. The complainant alleges that this decision was based on improper reasons and that it constitutes an abuse of authority.

2 The respondent denies that any abuse of authority occurred. It states that TBS eliminated the MTP in December 2011 and that the complainant was the only trainee remaining at PWGSC following the program’s elimination. The respondent submits that the complainant does not have the right to make a complaint under s. 65 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA) because the entire MTP was eliminated.

3 The Public Service Commission (the Commission) did not attend the hearing, but it provided written submissions addressing the concept of abuse of authority in complaints regarding lay-offs.

4 For the reasons set out below, the Public Service Staffing Tribunal (the Tribunal) finds that the complainant does not have the right to make a complaint under s. 65 of the PSEA. Given that the Tribunal does not have jurisdiction to dispose of this complaint, it cannot review the grounds for abuse of authority alleged by the complainant.

Background

5 The complainant was already an MTP trainee when he joined PWGSC in December 2009. The MTP was a TBS leadership development program designed to enable management trainees to acquire hands-on experience and develop their leadership skills through on-the-job assignments with predetermined duration, objectives and competencies requiring development. The MTP was governed by the Directive on the Administration of Leadership Development Programs – Management Trainee Program and Career Assignment Program (DALDP). Trainees were from the PL occupational group, established for the purpose of the MTP.

6 In 2009, TBS announced that the MTP would be phased out and that departments across the core public administration had to complete the transition of trainees out of the program by December 2011. The DALDP was rescinded on April 3, 2012.

7 In June 2013, the respondent notified the complainant that his services as a management trainee would no longer be required after June 28, 2013, due to the discontinuance of a function.

8 On July 3, 2013, the complainant filed a complaint with the Tribunal under s. 65(1) of the PSEA. He alleges that the respondent abused its authority and acted in bad faith in selecting him for lay-off. He submits that the respondent refused to honour its commitments and obligations as a department participating in the MTP and that it selected him for lay-off in order to force him to accept a position at the AS-04 group and level. The complainant accepted a positionat the AS-04 group and level after being declared surplus.

Preliminary matter

9 The respondent filed a motion to dismiss the complaint on the ground that the Tribunal did not have jurisdiction to hear or dispose of the complaint. It submits that the complainant does not have the right to make a complaint regarding his identification for lay-off. The respondent argues that the entire MTP was abolished, that the respondent therefore did not have to select who would be laid off from among a group of employees, and that the complainant was the only PWGSC trainee who had not yet been appointed outside the PL group when he was identified for lay-off.

10 The complainant submits that he does have the right to recourse under s. 65 of the PSEA because, in his view, he held a unique position. He argues that the French wording of s. 65 of the PSEA does not refer to an employee “selected for lay-off” but rather to the “decision to lay off” an employee (“décision de le mettre en disponibilité”).  He submits that he therefore did not have to be selected from among a group of employees in order to have the right to make a complaint. He cites Lishman v. the Deputy Minister of Environment Canada, 2013 PSST 0012, to support his position.

11 The Tribunal must therefore decide whether the complainant has the right to make a complaint under s. 65(1) of the PSEA.

12 At PWGSC, the complainant was a management trainee on assignment to the Corporate Services and Strategic Policy Branch, under the direction of Saaka Minimaana, Director, Planning and Management Services. When the complainant had completed all MTP requirements on July 14, 2011, he held a position under the program at the PL-03 group and level. According to the DALDP, his home organization, PWGSC, had to appoint or deploy him to a position in a group other than the PL group in the three months that followed.

13 In his testimony, Mr. Minimaana explained that, in consultation with human resources, he tried to help the complainant find a job. Mr. Minimaana described some of the employment opportunities that he reviewed for the complainant. Since he wanted the complainant to continue working at the Branch and to perform essentially the same tasks, Mr. Minimaana eventually prepared a work description listing the duties performed by the complainant. Mr. Minimaana sent the description to human resources, which assessed the duties and found that they corresponded to a position at the AS-04 group and level.

14 From 2008 until his appointment as director of human resources operations in September 2011, Étienne Poirier was a senior level staffing manager at PWGSC. Mr. Poirier explained that the department’s priority was to place the complainant outside the PL group because the MTP was set to expire in December 2011, but that the absence of some of the people involved had delayed the processing of the complainant’s file. Mr. Poirier described some of his efforts to find a position for the complainant. He confirmed that Mr. Minimaana had decided to keep the complainant in his branch and that a position was created and classified for that purpose.

15 On January 5, 2012, Mr. Minimaana signed the work description for the position of Branch Business Planning Advisor, classified at the AS-04 group and level.

16 On February 20, 2012, and again on March 21, 2013, Mr. Minimaana offered the complainant a deployment to that position. On March 21, 2013, Mr. Minimaana also authorized the complainant’s retroactive acting appointment to the position at the AS-04 group and level, for the period from July 15, 2011, to March 20, 2013. Since the complainant had remained at the PL-03 group and level after completing the MTP requirements in July 2011, the retroactive acting appointment compensated him for the duties he had performed before his deployment to that position.

17 The complainant did not accept these offers because, in his view, the DALDP provided that a trainee had to be appointed to a position with a maximum salary above that of an AS-04.

18 In April 2013, the complainant was the only MTP trainee within the department who had not yet been appointed or deployed outside the PL group.

19 In an April 23, 2013, memorandum to the Deputy Minister of PWGSC, the Acting Assistant Deputy Minister of the Human Resources Branch (A/ADM, HRB) recommended that the complainant be declared surplus, with a guarantee of a reasonable job offer. The A/ADM, HRB, explains in the memorandum that the MTP has been abolished and that the complainant still holds a PL-03 position, but that the PL occupational group no longer exists, and that this therefore results in the discontinuance of a function, as defined in the Work Force Adjustment Directive. The A/ADM, HRB, also states there that the Department could provide continuous employment to the complainant in the AS-04 position to which he was assigned at that time.

20 On April 23, 2013, the Deputy Minister approved the recommendation of the A/ADM, HRB.

21 In a letter given to the complainant on June 19, 2013, the respondent stated that his management trainee services would no longer be required after June 28, 2013, due to the discontinuance of a function. The letter stated that this decision resulted from TBS’s elimination of the MTP in December 2011. On that same day, the respondent offered the complainant a deployment to the position of Branch Business Planning Advisor, Corporate Services and Strategic Policy Branch. The position was at the AS-04 group and level. 

Analysis

22 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.

64. (1) L’administrateur général peut, conformément aux règlements de la Commission, mettre en disponibilité le fonctionnaire dont les services ne sont plus nécessaires faute de travail, par suite de la suppression d’une fonction ou à cause de la cession du travail ou de la fonction à l’extérieur des secteurs de l’administration publique fédérale figurant aux annexes I, IV ou V de la Loi sur la gestion des finances publiques; le cas échéant, il en informe le fonctionnaire. (2) Dans les cas où il décide dans le cadre du paragraphe (1) que seulement certains des fonctionnaires d’une partie de l’administration seront mis en disponibilité, la façon de choisir les fonctionnaires qui seront mis disponibilité est déterminée par les règlements de la Commission. […] 65. (1) Dans les cas où seulement certains des fonctionnaires d’une partie de l’administration sont informés par l’administrateur général qu’ils seront mis en disponibilité, l’un ou l’autre de ces fonctionnaires peut présenter au Tribunal, dans le délai et selon les modalités fixés par règlement de celui-ci, une plainte selon laquelle la décision de le mettre en disponibilité constitue un abus de pouvoir. (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.

23 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 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 some but not all of the employees in a part of an organization will be laid off, the regulations of the Commission will determine how those employees shall be selected.

24 Section 65(1) of the PSEA provides that employees who have been informed that they will be laid off have a right to seek recourse with the Tribunal, in cases where only some employees in the identified part of the organization will be laid off. According to s. 65(2), no complaint may be made under s. 65(1) about 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.

25 In Lishman, the Tribunal confirmed that s. 65(1) of the PSEA provides recourse for employees who have been informed that they will be laid off when only some of the employees in the identified part of the organization will be laid off. The Tribunal also stated in paragraph 42 of that decision that employees have no recourse when the identified part of the organization has been completely eliminated:

42. … 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. (Emphasis added)

26 The evidence shows that, with the elimination of the MTP, the entire program ended within the public service in December 2011. This elimination required all departments to regularize the situation of trainees. At PWGSC, all trainees except for the complainant accepted an appointment or deployment outside the PL group and, for a variety of reasons, the complainant remained the only employee in 2013 to hold a PL position. The respondent therefore decided to discontinue his trainee function under s. 64 of the PSEA.

27  After considering all of the evidence, the Tribunal finds that the complainant was identified for lay-off because the PL group functions no longer existed due to the elimination of the entire MTP. The fact that the other MTP trainees obtained positions outside the PL group before the complainant does not mean that he was the only employee in that program. He was merely the only one who had not yet been appointed or deployed outside the PL group. The Tribunal therefore finds that the complainant does not have the right to make a complaint under s. 65 (1) of the PSEA.

28 The Tribunal notes that the complainant’s allegations also concern the level of the position that the respondent offered to him, and the way in which the respondent interpreted and applied the DALDP in handling his situation.

29 Under s. 88(2) of the PSEA, the mandate of the Tribunal is to consider and dispose of complaints made under ss. 65(1), 74, 77 and 83. However, the administrative issues raised by the complainant in his allegations do not relate to the application of s. 65(1) or other sections of the PSEA. As a result, these issues are not within the Tribunal’s jurisdiction.  

Decision

30 For all these reasons, the Tribunal concludes that it does not have jurisdiction to consider or dispose of the complaint in this case. The complaint is therefore dismissed.

Lyette Babin-MacKay
Member

Parties of Record

Tribunal File:

2013-0249

Style of Cause:

Badreddine Landoulsi and the Deputy Minister of Public Works and Government Services

Hearing:

March 17 and 18, 2014
Ottawa, Ontario

Date of Reasons:

April 23, 2014

APPEARANCES:

For the complainant:

Badreddine Landoulsi

For the respondent:

Martin Desmeules

For the Public
Service Commission:

Written submissions filed by
Luc Savard on March 10, 2014