FPSLREB Decisions

File: 166-2-26902 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN CHRISTIAN LAMARRE Grievor and TREASURY BOARD (Fisheries and Oceans)

Employer

Before: Yvon Tarte, Deputy Chairperson For the Grievor: Himself For the Employer: Richard Turgeon, Counsel Heard at Montreal, Quebec, February 22, 1996.

Decision Page 1 DECISION Mr. Lamarre filed a grievance against his employer's decision to take disciplinary action against him on July 18, 1995. The action taken was in the form of a letter of reprimand.

The employer rejected Mr. Lamarre's grievance on the merits. The grievor therefore asked that his grievance be referred to adjudication pursuant to section 92 of the Public Service Staff Relations Act.

At the start of the hearing, the employer filed an objection to this adjudicator's jurisdiction. Mr. Turgeon stated that under section 92, only grievances with respect to disciplinary action resulting in suspension, financial penalty, termination of employment or demotion could be referred to adjudication. According to the employer, paragraph 92(1)(a) therefore requires as a condition of referral to adjudication the existence of one of the four penalties mentioned, and not just the possibility of its occurring at a later date. In support of its thesis, the employer cited Rajakaruna (Board file 166-2-23135), Reasner (Board file 166-2-26260), Attorney General of Canada v. Lachapelle et al [1979] 1 F.C. 377, and Attorney General of Canada v. Lachapelle et al [1980] 1 F.C. 55.

Mr. Lamarre claimed that the disciplinary action taken against him met the requirements of section 92, as it had been placed in his personal file, where it would remain for a period of at least two years and might one day result in a harsher penalty, according to the principle established in labour relations of progressive discipline.

REASONS FOR DECISION Section 92 of the Act stipulates that: 92.(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

Public Service Staff Relations Board

Decision Page 2 (i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

The origin of the employee's right to refer a grievance to adjudication is the Public Service Staff Relations Act. The Act establishes a whole system governing references to adjudication by the Board.

Section 92 specifically limits the kind of grievances that may be referred to adjudication. Only disciplinary action that has resulted in a short time, in suspension, a financial penalty, termination of employment or demotion may be referred to adjudication.

The letter of reprimand does not constitute a penalty giving entitlement to a reference to adjudication, although it does indeed constitute disciplinary action which, in the context of a system of progressive discipline, could one day justify the imposition of harsher penalties.

The Federal Court, Trial Division, and the Federal Court of Appeal, moreover, ruled conclusively on the matter in Lachapelle, cited above. The comments of Mr. Justice Marceau, of the Trial Division, leave no doubt as to the limits of section 92 (formerly section 91) as stated in this decision.

Public Service Staff Relations Board

Decision Page 3 I must therefore conclude that I do not have the necessary jurisdiction to hear the grievance referred by Mr. Lamarre.

Yvon Tarte, Deputy Chairperson

OTTAWA, March 11, 1996. Certified true translation Serge Lareau

Public Service Staff Relations Board