FPSLREB Decisions
Decision Information
Employee status - Employee appointed for a specified term - Employee arguing that the decision not to renew her contract amounted to a termination - Excluded employee - Jurisdiction - Procedure - Conflict of interest - the grievor, a lawyer, filed a grievance alleging that the decision not to renew her contract amounted to a termination - prior to the hearing, the employer objected that the Board had no jurisdiction to appoint an adjudicator in the case because the grievor's employment had not ended because of a termination within the meaning of the Public Service Staff Relations Act - at the outset of the hearing, the grievor asserted that the employer's representative was in a conflict of interest situation because he was involved in a similar case relating to the remuneration of public servants - the employer's representative argued that the conflict of interest issue could not be raised in this case and should instead be raised in the other case and that, in any event, he would withdraw from this case if it were ever heard on the merits - the adjudicator ruled that since the employer intended to deal only with its objection as to jurisdiction at the hearing and not to debate the merits of the case, its representative could not be in a conflict of interest situation - the adjudicator found that the grievor's employment had ended automatically following the fulfilment of the conditions of the contract of employment itself - it was therefore not a termination. Grievance denied.* Cases cited: Hanna (166-2-26983); Dansereau v. National Film Board, [1979] 1 F.C. 100 (C.A.). * An application to the Federal Court of Canada by the Grievor under the Federal Court Act to have the Board's decision set aside is pending (Court File Nos. A-94-97 and A-97-97).
Decision Content
File: 166-2-27313 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN HÉLÈNE BEAULIEU Grievor and THE TREASURY BOARD (Justice Canada)
Employer
Before: Yvon Tarte, Chairperson For the Grievor: Ionnis Mavrikakis For the Employer: Raymond Piché, Counsel Heard at Montreal, Quebec, October 7 and 8, 1996.
Decision Page 1 DECISION On June 5, 1996, Hélène Beaulieu asked to refer to the Board, for adjudication, the following grievance, as transmitted to her employer on 4 February 1996: (Translation) Subject: letter from Serge Pépin, counsel, dated 2 January 1996, and received at the post office on 16 January
Dear Assistant Deputy Minister: I acknowledge receipt of the letter from Mr. Serge Pépin dated 2 January 1996, and received at the Post Office on 16 January, as confirmed by the Post Office. I regret to inform you that I cannot accept that letter, for the reasons cited below.
(1) The letter is signed by Mr. Pépin, who has no authority in the matter;
(2) The grounds cited above are based on the following exchanges of letters:
(a) letter from Mr. Pépin to Mr. Lewis, dated 21 December 1994, of which I believe you have a copy, and which conveys to Mr. Lewis, the administrator, his astonishment that I had been moved to the office of Mr. Lefebvre.
(b) In your letter of 15 December 1995, you defined the management duties of Mr. Pépin , noting that:
“Notwithstanding his classification, he must provide direction to his professional and support staff, and prepare performance appraisals, approve vacations and carry out Departmental policies including those regarding staff relations.”
(c) Notwithstanding the preceding, I bring to your attention the agreement reached between FORD-Q and Justice, which was signed by the two deputy ministers concerned, and which states, at the end of paragraph 1:
“Any planned reduction in resources must be notified in writing to DOJ, six months in advance, so as to give the Department time to re-assign any staff that may be affected”.
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Decision Page 2 (d) The persons who authorized my employment had the powers and mandate of managers. On this point, I refer to the various annual employment agreements and contract renewals.
(e) How is it possible that Mr. Pépin could wear two hats (FORD-Q and Justice)? By what authority? And how could he determine that Justice had no more room for me?
(f) Without burdening you with procedures, I believe that in this case Mr. Pépin should have sent you a letter, as counsel seconded to FORD-Q, stating that he had no further work for me in his service, after having consulted the client; then, following this notification, your department, after verifying the seniority of lawyers hired after me, would have been free, if it could not agree to have me replace someone hired after me, to notify me of my lay-off from Justice.
For all of the reasons stated above, I believe that this was a case of disguised dismissal, and that consequently it would have been preferable if you, as deputy minister, had given me the true reasons, while following the procedures cited in paragraph (f) above.
In the face of this ill-considered and unfounded action, I invite you to consider the letter from Mr. Pépin as an unfortunate abuse of justice, both for you and for me. I cannot accept it, and I intend to take steps to ensure that the rules of justice and procedures are respected.
Yours sincerely, The question of conflict of interest At the outset of the hearing, Mr. Mavrikakis raised a question of conflict of interest concerning Mr. Raymond Piché, of the Department of Justice. Counsel for the grievor informed me that Mr. Piché was involved as an applicant in a case similar to that submitted in Case 166-2-27316, concerning a salary question and the application of certain legislation on the remuneration of public servants. In support of this point, counsel for the grievor provided to me the following texts and decisions: Code of Professional Conduct for Lawyers (R.R.Q. 1981, c. B-1, T. 1), Guide to Conflicts of Interest (Research and Legislation Services of the Quebec Bar), Succession MacDonald v. Martin, [1990] R.C.S. 1235, 2527-7195 Québec Inc. v. 161442 Canada Inc. (S.C district of
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Decision Page 3 Montreal no.: 500-05-000372-894), Donald D. Thomson et al. v. Smith Mechanical Inc. et al., [1985] S.C. 782, APV Pavailles Inc. v. Alain Bonischot and John A. Swift (Court of Appeals, Montreal office no. 500-09-000999-912) and Claude Pageau v. Dame Blanche Vanasse Aubry (S.C., district of Montreal, no. 500-14-002503-910).
Mr. Mavrikakis asked, among other things, that Mr. Piché be declared disqualified to represent the Department of Justice in this matter, and that a new counsel should be appointed in due course.
In response to the questions raised by counsel for the grievor, counsel for the Department stated that the only possible question of conflict of interest was with respect to case 166-2-27316 concerning the salary question, and that moreover, if that case should ever be heard on its merits, Mrs. Bureau and he would withdraw from the case.
Decision on the question of conflict of interest In light of the commitment of the employer’s representatives to withdraw from case 166-2-27316, if that grievance should ever be heard on its merits, I ruled that Mrs. Bureau and Mr. Piché could present their preliminary objections with respect to denial of jurisdiction in the 6 references made by Mrs. Beaulieu, namely Board cases 166-2-27313 to 27316, 27289 and 27335. By limiting their interventions to questions of jurisdiction, counsel for the Department of Justice could not be considered in a situation of conflict of interest, real or apparent.
Preliminary Objection On 26 July 1996, Mrs. Bureau introduced, on behalf of the employer, an objection claiming lack of jurisdiction, the text of which is here reproduced verbatim: I wish to inform you that the employer objects to the appointment by the Public Service Staff Relations Board of an adjudicator, pursuant to paragraph 95(2)(c) of the Public Service Staff Relations Act (the Act) to hear the grievance in question, for the following reasons:
Hélène Beaulieu was employed “in a managerial or confidential capacity” according to the definition contained in Section 2 of the Act, since she held the position of legal
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Decision Page 4 advisor to the Department of Justice and was consequently not covered by any collective agreement.
Pursuant to line 92(1)(a) of the Act, Hélène Beaulieu cannot refer this grievance to adjudication, because it does not bear upon the interpretation or application in respect to her of any provision of a collective agreement or an arbitral award.
Secondly, Mrs. Beaulieu’s grievance entitled “grievance for disguised dismissal” relates to the fact that her supervisor did not have the required authority to inform her, on January 2, 1996, that she would cease to be an employee upon expiry of the period for which she had been appointed, as stated in the letters of 4 February 1996 and 5 June 1996, submitted in support of the present reference to adjudication.
This grievance does not relate to a suspension, nor to any financial penalty, nor to any disciplinary action leading to her discharge or suspension or to an financial penalty under the terms of paragraph 11(2)(f) and (g) of the Financial Administration Act. Mrs. Beaulieu therefore has no standing under paragraph (b) of Section 92 of the Act to refer her grievance to adjudication.
We maintain that the employment of Hélène Beaulieu for a specified period terminated upon the expiry of that period, pursuant to Section 25 of the Public Service Employment Act. Non-renewal of appointment for a person appointed for a specified period does not constitute discharge within the meaning of Section 92 of the Act.
This motion to dismiss is submitted in the interest of the proper administration of justice, because it is useless to burden the Board with matters over which an adjudicator clearly has no jurisdiction.
We would be prepared, on behalf of the employer, to present oral arguments if the Board deems it appropriate to hold a hearing on this question.
In light of the foregoing, we believe that it would be inappropriate for the Board to decide at this time to hear the matter in question during the period of 7 to 11 October 1996.
We respectfully await your decision, and trust that all is in order. Yours truly etc.
During the grievance hearing held on 7 October 1996, Mr. Piché reiterated the employer’s preliminary objection.
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Decision Page 5 In response to the objections presented by Mrs. Bureau on 26 July 1996, Mr. Mavrikakis presented the following arguments in a letter dated 16 August 1996, concerning the various grievances referred to adjudication by Mrs. Beaulieu, the verbatim text of which follows: SUBJECT: Reference to Adjudication (166-2-27289, 27313 to 316, 127335, Hélène Beaulieu - Justice Canada
Dear Assistant Secretary, I acknowledge receipt of the letters of Mrs. Carole Bureau, representing the Department in this matter, and I fail to understand the first three paragraphs that are repeated verbatim on the first page of each of the six letters.
On 11 June 1996, a grievance was brought before your Board by Mrs. Hélène Beaulieu. On 28 June, you informed the parties that a hearing on these matters would be held from 9 to 13 September 1996. Subsequently, we requested another date in the month of October, a request which the counsel for the employer, at that time Mr. Roger Lafrenière, accepted. Subsequently another solicitor was assigned for reasons familiar to you, and it was only on 26 July that the employer decided to object to the Board’s hearing the grievances and complaints of Mrs. Hélène Beaulieu.
I wish to point out that in no case did the first counsel present this argument, and it was only 45 days after submission of the grievance that the employer, for reasons that remain obscure and that rely on rules enacted by the employer itself, objected to having the Board deal with Madame Beaulieu’s case.
On this point, notwithstanding the Sections referred by Mrs. Bureau in her letter, and more particularly in the first three paragraphs of page one, we would remind the employer of the attachments and studies that the employer itself submitted concerning the policy on harassment in the workplace. I refer here to the Treasury Board document of 3 January 1995, signed by Mr. R.J. Giroux, which states on page 2:
“Please put this revised policy into immediate effect”.
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Decision Page 6 And on page 13, in the “Grievance” paragraph: “If an employee decides to submit a grievance.... and on the following page the sentence “Pursuant to an agreement between the Treasury Board Secretariat and the Public Service Commission, the latter will hear complaints of harassment.”
And in another document from the Department of Justice dealing with harassment in the workplace, harassment is defined in paragraph 2 of page 3, and page 4 states:
“harassment also relates to any abuse of power that involves the improper exercise of authority or power deriving from a position with a view to compromising the employment....”
And on page 15 and following of the guidelines, the Department of Justice defines the role of the Public Service Commission, in particular referring to:
a complaint to the Investigations Directorate of the Public Service (harassment unrelated to a reason included in the Canadian Human Rights Act).
which is the case at present, since it relates to an abuse of authority, among other things.
The Treasury Board, in its September 1994 study on harassment in the workplace, devoted long Sections to harassment in the workplace and in particularly to the question of abuse.
I also refer to the grievances document, and more particularly to paragraph 9.2.1 General Provisions of Volume 1 Chapter 13, Volume 7, chapter 5, chapter 6 and chapter 13, and to the Public Service Staff Relations Act (PSSRA, Sec. 91-101, Regulations and Rules of Procedure of the Public Service Staff Relations Board, Sec. 69-90), where paragraph “a” states:
“A grievance is a written complaint that an employee may submit concerning terms and conditions of employment”.
The Assistant Deputy Minister, Jean-Claude Demers, considering as he himself states that harassment in the workplace is a very serious matter, issued a policy in a
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Decision Page 7 memorandum dated 27 January 1995, which refers on pages 13 and 14 to “grievance”:
“Pursuant to an agreement between the Treasury Board Secretariat and the Public Service Commission, the latter will investigate complaints of harassment ...”
which show, among other things, that the Assistant Deputy Minister has adopted the same policy as the Treasury Board.
And in the Directive of the Deputy Minister of Justice, Mr. George Thomson, number 189SM of 16 February 1996, we find:
“I am very pleased to announce the new policy of the Department of Justice with respect to dispute settlement. This policy represents a further stage in the Department’s commitment to provide high-quality legal services.”
And in the “Goals” paragraph, the Deputy Minister adds: “Consistent with government policy, the Department encourages the use of the various mechanisms for dispute settlement, in all appropriate circumstances.
and further on: “Recourse to dispute settlement mechanisms is an affirmation of two principles in the Department’s mission statement: “To assist the Minister in the task of ensuring that Canada remains a just and law-abiding society”.
The Department issues laws, and publishes manuals on harassment, but when it comes to enforcing them, it seeks to escape its responsibilities, by failing to recognize that its objections were submitted late, and ignoring all the fine statements and speeches that it has made on the subject.
PSSRB: 166-2-27289 (a) Mrs. Bureau states that Mrs. Beaulieu was employed “in a managerial or confidential capacity”. There is no definition to my knowledge of “confidential capacity”, since all employees at all levels of Departments occupy, I should assume, a position of trust, even the Minister’s floor sweeper.
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Decision Page 8 Nevertheless, we must refer here to the Treasury Board’s definition of LA-1, Chap. 3-1, where LA-1 is dealt with in the description of salary levels on page C-1:
LA-1 “Legal advisers at this salary level perform legal work under general supervision”.
A reading of this paragraph does not suggest a Management position. Furthermore, in the description of Mrs. Beaulieu’s tasks, we read:
“Under the supervision of a more experienced legal adviser, to perform legal work of a kind such as to acquire the training and experience necessary to obtain employment at a higher level.”
As can be seen, there is nothing in her tasks that would allow Mrs. Bureau to connect Mrs. Beaulieu’s job to Section 2 of the Act.
(b) With reference to Mr. Marcel Gauvreau, and the notes are available to demonstrate this, Mrs. Bureau herself states in paragraph 2 of her letter:
“The response at the last level must have been made without taking account of the questions that she had asked the investigator.”
The case speaks for itself: a peremptory plea has been entered, despite her numerous appeals, as demonstrated in the record submitted to the deputy minister. In the face of repeated questions, the investigator, Mr. Baron, stated that he could no longer remember, he did not have his notes, and he was not in a position to reply to Mrs. Beaulieu’s questions...
As to the fourth paragraph of Mrs. Bureau’s letter, which states that the grievance does not relate to a suspension or financial penalty nor to any disciplinary action, it is appropriate to refer to complaint 166-2-27313 which is the result of this first grievance lodged by Mrs. Beaulieu against Mr. Marcel Gauvreau.
Public Service Staff Relations Board
Decision PSSRB: 166-2-27335 Mrs. Bureau states in paragraph 2 “These proceedings terminated; the department’s official counsel has not been completed”.
The department’s counsel forgets that Mr. Grosleau of the Staff Relations Branch has been trying in vain, since last December, to arrange a meeting with Mr. Mayrand, who seems to be very busy. In our letter of 4 June 1996, we indicated to Mr. Grosleau that more than ample time had passed, and that we were referring the whole affair to the Board.
The other reasons invoked are the same as those cited at the beginning of this letter. Consequently, there is no need for us to comment further.
PSSRB: 166-2-27314 The departmental counsel forgets that if it had not been for the complaints of abuse of authority and breach of ethics against Mr. Pépin, there would never have been a letter of dismissal, as mentioned in complaint no. 166-2-27313.
As to the rest, we would refer you again to the comments set out above.
PSSRB: 166-2-27315 I think the employer’s counsel must be taking Mrs. Beaulieu’s letters in another context when she says her supervisor gave a “divergent opinion”.
This is not the point at issue. Mrs. Beaulieu’s letter speaks for itself, saying in substance that it was a legal opinion that Mrs. Beaulieu had given, and that it had been approved by “her supervisor” in consultation with him, and that, for reasons that are not clear, he had changed his mind a few days later and issued another one, without Mrs. Beaulieu’s knowledge, indeed without consulting her or telling her of its contents.
As to the rest, we would refer you again to the comments set out above.
PSSRB: 166-2-27313 The departmental counsel mentions that Mrs. Beaulieu ceased to be an employee upon expiration of the period for which she was appointed.
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Page 9 are not yet report from the
Decision Page 10 There are three points here that have either been left out or ignored:
(1) “The supervisor” did not have the required authority to declare her dismissed;
(2) The contract between FORD-Q and the Department of Justice, in paragraph 1 of the Agreement, provides that six months before expiry of said contract, FORD-Q must advise the Department of Justice of any change. Now, there is nothing on the file to show that any changes had been requested by FORD-Q.
(3) In the matter that concerns us, FORD-Q had the duty, initially, to advise the Department of Justice six months before any changes to the Agreement between the Departments. Subsequently, the Department of Justice was supposed to review the situation of its staff, according to the order of employment seniority of legal advisers for the years 1993, 1994, and 1995, and then to reclassify Mrs. Beaulieu.
Mrs. Bureau, in her letter of 25 July to the Canadian Human Rights Commission regarding the questions raised by Mr. Jean-Guy Boissonneault, answers as follow on page 2, para. 4:
“With reference to the non-renewal of other employees of the Department for the years 1993, 1994 and 1995, the Department is now in the process of compiling this information, and I shall provide you with the appropriate comments as soon as they are available.”
This stands in contradiction to the letter of 26 July which she wrote to you, since she still does not have this information.
PSSRB: 166-2-27316 With all due respect, we strongly deny the employer’s contentions, and the contents of the employer’s letter of 26 July. We maintain that, when it comes to interpretation or application of a Treasury Board directive to Mrs. Beaulieu, the Board has the power to deal with the case, since Mrs. Beaulieu has suffered financial injury. It is not a question here of a higher salary than that provided for in her employment contract, but rather of suspending the system of performance pay for the applicant, under which the applicant is entitled to receive performance increases consistent with the performance ratings she has earned in her work.
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Decision Page 11 Let us not forget that the same counsel is pleading in another Federal Court case against the Department, for the same reasons, where she is invoking totally different arguments that would be just as acceptable in the present, similar case. This leads us to wonder about the good faith of the employer...
For all these reasons, we believe that the objections contained in the letters sent by the employer’s counsel are ill-founded and should be rejected, and that the dates of 7 to 11 October should be retained as those on which the parties may appear before the Board and submit their arguments to adjudication.
I thank you in advance for your consideration of this matter. We are at your disposal to give an oral presentation of the responses outlined above, as you deem fit.
In the meantime, I remain, yours sincerely etc... Evidence concerning the preliminary objection The grievor has worked in the Department of Justice under contract for specified periods since 23 November 1992. The last of these employment contracts (which are submitted together as Exhibit E-1) states that it shall end “at the close of business on 31 March 1996”.
On 2 January 1996 Serge Pépin, the grievor’s immediate supervisor, advised her that her contract would not be renewed (Exhibit E-4), in a letter the text of which is here reproduced:
(Translation) We are anticipating a reduction in our legal services work, as well as a budgetary reduction in the FORD-Q envelope for the fiscal year 1996-1997. According to a directive from the Deputy Minister of Justice (Infopersonnel 139/June 1995), all term employees with a specified period of employment of six months or more must receive three months’ advance notice of termination. I must advise you therefore that your specified period of employment will not be renewed when it expires on 31 March 1996.
When he learned that his letter of 2 January 1996 did not reach Mrs. Beaulieu until 16 January 1996, Mr. Pépin decided to extend the grievor’s contract of employment until 16 April 1996, so as to comply with the Department’s three-month notice requirement.
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Decision Page 12 Arguments The parties submitted written arguments in this case, which are reproduced below:
For the employer: (Translation) INTRODUCTION 1. The employer objects that the adjudicator has no jurisdiction to hear this grievance on its merits;
PART ONE: THE FACTS 2. Mrs. Hélène Beaulieu, the grievor, was initially hired by the Department of Justice in the position of legal adviser, at group and level LA-01. She was assigned to work in the legal services of the Office of the Superintendent of Bankruptcy; (Exhibit E-1)
3. The grievor was appointed to this position under the terms of the Public Service Employment Act (1985), ch. P-33, for a specified period running from 23 November 1992 to 18 December 1992. The offer of employment provided for a salary of $45,050; (Exhibit E-1)
4. By letter dated 17 December 1992, the Department of Justice offered to renew the grievor’s appointment for a specified period running from 21 December 1992 to 31 March 1993. The offer of employment provided for a salary of $46,400; (Exhibit E-1)
5. The grievor accepted this offer of employment on 22 December 1992; (Exhibit E-1)
6. By letter dated 11 February 1993, the Department of Justice offered to renew the grievor’s appointment for a specified period running from 31 March 1993 to 30 September 1993. The offer of employment provided for a salary of $46,400; (Exhibit E-1)
7. The grievor accepted this offer of employment on 15 February 1993; (Exhibit E-1)
8. By letter dated 24 November 1993, the Department of Justice offered to renew the grievor’s appointment for a specified period running from 1 October 1993 to Public Service Staff Relations Board
Decision Page 13 31 March 1994. The offer of employment provided for a salary of $46,400; (Exhibit E-1)
9. The grievor accepted this offer of employment on 14 December 1993; (Exhibit E-1)
10. By letter dated 10 March 1994, the Department of Justice offered to renew the grievor’s appointment for a specified period running from 1 April 1994 to 31 March 1995. The offer of employment provided for a salary of $46,400; (Exhibit E-1)
11. The grievor accepted this offer of employment on 1 April 1994;
12. On 24 October 1994, the grievor was deployed to the legal services of the Federal Office of Regional Development - Quebec;
13. This deployment was apparently the result of a conflict between the grievor and the Deputy Superintendent of Bankruptcy. According to the evidence submitted to the adjudicator, the grievor decided to stop working on a file that had been assigned to her. This behaviour was deemed insubordinate and unprofessional, and led the Deputy Superintendent of Bankruptcy to decide to dispense with her professional services;
14. By letter dated 9 May 1995, the Department of Justice offered to renew the grievor’s appointment for a specified period running from 1 April 1995 to 31 March 1996. The offer of employment provided for a salary of $46,400; (Exhibit E-1)
15. The grievor accepted this offer of employment on 2 June 1995;
16. By letter dated 2 January 1996, Mr. Serge Pépin informed the grievor that her term appointment would not be renewed beyond 31 March 1996;
17. Not satisfied with this letter, which she received on 16 January 1996, the grievor presented her employer on 4 February 1996 with a grievance, in which she charged among other things that Mr. Serge Pépin had no authority to send her the letter of 2 January 1996, and that that letter constituted a disguised dismissal;
18. By letter dated 27 February 1996, Mr. Serge Pépin informed the grievor that her period of employment had been extended to 16 April 1996, so that she would have the
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Decision Page 14 advantage of the full three-month prior notice that Department of Justice policy requires be given to its employees;
19. By letter dated 23 May 1996, the Deputy Minister of Justice, acting in his capacity as the final level under the grievance process, rejected the grievance submitted by the grievor, for the following reasons:
“Your supervisor, Mr. Serge Pépin, complied fully with departmental policy in giving you advance notice of three months. I note that your specified period of employment was extended from 3 April to 15 April to make up for the period between the date of sending and the date of receipt of the letter, and to ensure that you would receive the full three-month advance notice. Your grievance is therefore rejected.”
20. On June 4, 1996, the grievor referred her grievance to adjudication;
21. By letter dated 26 July 1996, the employer objected that the adjudicator had no jurisdiction to hear the employee’s grievance on its merits.
PART TWO: THE LAW (A) WAS THE GRIEVOR ENTITLED TO SUBMIT A GRIEVANCE?
22. At the time she submitted her grievance, the grievor was employed in a position as legal officer in the Department of Justice;
23. Under the terms of Section 2 of the Public Service Staff Relations Act, legal officers of the Department of Justice are not considered to be public servants within the meaning of that Act;
24. Consequently, the grievor is not a member of a union and is not covered by any collective agreement;
25. Despite this exclusion, however, the grievor was entitled to submit a grievance to her employer under the combined effect of Section 91 and the definition of “grievance” set out in Section 2 of the Public Service Staff Relations Act, to the extent that the conditions of Section 91 were met;
26. Under the terms of Section 91 of the Public Service Staff Relations Act, an employee may submit a grievance to grieve the application of a statute, a regulation or other
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Decision Page 15 instrument made or issued by the employer, that affects the terms and conditions of employment of the employee;
27. In the present case, the grievor contests the fact that her term appointment was not renewed;
28. Under the terms of the Public Service Employment Act, the grievor had no right to renewal of her appointment. On the contrary, Section 25 of that Act provides that an employee ceases to be an employee upon expiration of the specified period;
29. This Section reads as follows 25. An employee who is appointed for specified period ceases to be an employee at the expiration of that period.
30. This means therefore that the grievor’s employment ended by virtue of Section 25 of the Public Service Employment Act, rather than by any decision that her employer may have taken;
31. Moreover, the grievor cannot claim that the loss of her status as an employee, upon the termination of her specified period of employment, constituted application by her employer of Section 25 of the Public Service Employment;
32. The employer, in fact, maintains that it did not apply Section 25 to the grievor, but merely stated that Section 25 had produced the legal effects cited in this submission;
33. Such a statement cannot therefore be deemed a decision, or the “application of a statute”, or an action taken by her employer that affected the terms and conditions of her employment;
34. Consequently, since the grievor’s employer has taken no decision or action, and has applied no legislative provision affecting her, the employer has nothing to answer for by way of grievance;
35. In the case of Foster v. Canada (Treasury Board), in an unreported decision of the Trial Division of the Federal Court given on 20 August 1996 (record T-1323-95), the Court affirmed the principle that the termination of employment by virtue of the operation of Section 748 of the Criminal Code did not constitute the result of a decision taken by the employer;
36. In the present case, the employer maintains that the rationale accepted in the Foster case applies with equal force
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Decision Page 16 to termination of employment resulting from operation of Section 25 of the Public Service Employment Act;
37. Consequently, since the grievor had no standing under Section 91 of the Public Service Staff Relations Act to contest the termination of her period of employment, she could not therefore refer to adjudication a question that could not even be the subject of a grievance;
(B) WAS THE GRIEVOR SUBJECTED TO DISGUISED DISMISSAL?
38. The grievor also claims 2 January 1996 constituted disguised dismissal;
39. There is ample legal precedent for maintaining that the termination of a term appointment does not constitute dismissal;
40. In fact, the notion of dismissal implies a decision taken by the employer to terminate unilaterally an employment contract that would otherwise continue to exist;
41. In support of this claim, the employer invokes the decision of the Federal Court of Appeal in the case of Dansereau v the National Film Board, [1979] 1 F.C. 100, which states on pages 101 and 102 that:
“An employee hired for a specified period is not laid off when his or her period of employment expires, since the reason for cessation of employment at that moment is not the lack of work, but the terms and conditions of the employment contract itself.”
42. The principle underlying this decision was reaffirmed in the case of Canada v. Zinck, given on 25 September 1979, by the Federal Court of Appeal in record A-384-79, and was also reaffirmed by the Newfoundland Court of Appeal in the case of Newfoundland and Newfoundland Hospital Association v Newfoundland Association of Public Employees, 64 Nfld. & P.E.I.R. and 197 A.P.R. 200;
43. Moreover, the Federal Court of Appeal reaffirmed this principle in the case of Eskasoni School Board et al. v. MacIssac et al., 69 N.R. 315. In that decision, the Court stated on page 317:
“The Labour Code does not contain any definition of the word “to dismiss” and “dismissal”...However, the meaning of these words and of their French equivalents “congédier” and “congédiement” is Public Service Staff Relations Board
that the letter of
Decision Page 17 reasonably clear: they all refer to an action or a decision of an employer that has the effect of terminating a contract of employment. In the absence of a statutory provision extending the normal meaning of those expressions, I am unable to read them as embracing the failure of an employer to renew a contract for a fixed term of employment.”
44. The principle underlying that decision was again applied in the case of Lemieux v. Société Radio-Canada, an unreported decision of the Trial Division of the Federal Court, issued on 27 March 1996 in record T-45-95 (a decision currently under appeal);
45. Consequently, the employer maintains that the termination of the grievor’s employment cannot be considered a discharge under the terms of paragraph 11(2)(f) of the Financial Administration Act;
46. Since the only disciplinary actions that can be referred to adjudication under the terms of Paragraph 92(1)(b) of the Public Service Staff Relations Act are discharges performed under the terms of Paragraph 11(2)(f) of the Financial Administration Act, it follows that the termination of the grievor’s employment cannot be referred to adjudication;
47. In support of this argument, the employer cites the decisions issued by the PSSRB in the cases of Cecilia Hanna, 166-2-26983 and Diane Smith, 166-2-25488;
48. Nevertheless, it should be noted that Paragraph 92(3) of the Public Service Staff Relations Act does not apply in the present case, because Section 25 of the Public Service Employment Act is not a termination of employment within the meaning of the latter Act;
49. Consequently, the employer maintains that the grievor could not initiate grievance procedures to contest the loss of her status as an employee pursuant to Section 25 of the Public Service Employment Act, and that even if such a grievance could be brought under the terms of Section 91 of the Public Service Staff Relations Act, it could not be referred to adjudication under the terms of Section 92 of that Act.
PART THREE: CONCLUSIONS SOUGHT MAY IT PLEASE THE ADJUDICATOR FOR THESE REASONS
TO ACCEPT the employer’s objections;
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Decision Page 18 TO DECLARE that he has no jurisdiction with respect to the grievance submitted;
TO REJECT that grievance on the grounds of lack of jurisdiction.
Montreal, 18 October 1996 (Note: The precedents referred to have been omitted) For the grievor INTRODUCTION 1. The employee refutes the allegation that the adjudicator has no jurisdiction to hear her grievances on their merits;
PART ONE: THE FACTS 2. To avoid useless repetition and waste of the Adjudicator’s time by reviewing the events in question, we accept paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 and 15, with the exception of the last line of paragraphs 3, 4, 6, 8, 10 and 14 of the Employer’s Brief of 18 October 1996 (Exhibit E-1);
3. The last lines of paragraphs 3, 4, 6, 8 and 10 of the Employer’s Brief state “The offer of employment provided for a salary of $46,400”. If we refer to the Agreement signed between the Federal Office of Regional Development - Quebec and the Department of Justice on 1 April 1995, page 2, paragraph 1, we read:
“This agreement applies to the provision of legal officer services (at level LA-01 $42,400 - $60,200 and any increase resulting from a revision of the LA-01 salary scale from 1 April 1995 to 31 March 1996)”.
4. With respect to paragraph 13 of the Brief, the employer makes insinuations that are not even hinted at in Mr. Mayrand’s letter, by saying that:
“this behaviour was deemed insubordinate and unprofessional”
The evidence presented during the hearing of 7 October, and in Mrs. Hélène Beaulieu’s testimony, shows
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Decision Page 19 that she was in no way insubordinate or unprofessional. She acted in accordance with the Code of Professional Conduct that governs her profession as a lawyer. Moreover, the letter of 25 November 1994, from Mr. Mayrand, Deputy Superintendent, gives no hint of such discourteous and malicious insinuations by the Employer;
5. It is true that Hélène Beaulieu accepted the offer of the Department of Justice on June 2, 1995, while her contract had expired on 31 March 1995;
6. In a letter of 15 December 1995, Mr. Konrad Von Finckenstein, Assistant Deputy Minister, wrote with reference to Mr. Pépin (page 2, last paragraph):
“Notwithstanding his level of classification, the role of Serge Pépin within FORD-Q includes supervising the work of legal officers in that unit, and that of accountants and secretaries”...
Nowhere is Mr. Pépin referred to as “Director”, nor as having managerial responsibilities;
7. During the hearing, Mr. Pépin admitted that he had no document giving him the powers of a Director, and he submitted his Statement of Duties in which there is no mention of any managerial authority, (Exhibit P-1);
8. During the hearing, we submitted a document (Exhibit P-3) concerning delegation of authority, dated and signed by Mr. Frank Iacobucci, Deputy Minister of Justice, which sets out the Public Service Employment Act and its regulations, and the sub-delegation of personnel responsibilities, a document that describes very clearly the powers conferred on each person belonging to the Department of Justice, from Deputy Minister to Director;
9. The grievor submitted her grievances to the Public Service Commission for adjudication;
10. The adjudication hearing was held on 7 October 1996 in Montreal, in Federal Court, and counsel for the grievor submitted a petition that counsel representing Justice Canada, namely Mr. Raymond Piché and Mrs. Carole Bureau, were in “conflict of interest“;
11. The Employer’s counsel for their part submitted petitions objecting to the jurisdiction of the adjudicator to hear the grievances on their merits;
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Decision Page 20 12. Decision on these matters was deferred, and the adjudicator stated that he wished the parties, through their respective counsel, to submit their written Notes and Precedents concerning these requests, which is the reason for this response, except as refers to the “conflict of interest”, which has already been sent to the Adjudicator and to counsel for the Employer.
PART TWO: THE LAW (A) Was the grievor entitled to bring grievances before the Public Service Commission ?
13. We respectfully submit that the grievor is not contesting the non-renewal of her appointment, as the counsel for the employer maintains in paragraph 27, but rather is claiming that the person who signed the document of January 2, 1996, (Mr. Pépin) was not authorized to sign it;
14. On this point, we refer to Exhibit P-3, from the Department of Justice, which states powers and sub- delegations very clearly, “Termination of Employment”, which states (paragraph 34):
“Pursuant to Section 7(4) of the Financial Administration Act, the Deputy Minister hereby authorizes the officers of the Department listed in the attached table to exercise the powers and to fulfill the functions and duties pertaining to the following authorities, as specified in Annex A, subject to the limitations and conditions of that same Annex.”
And in Annex A, the fifth column, “Termination of Employment”, Section 34 PSER, are listed the names (titles) of the persons who have the delegated authority to sign;
15. In the case before us, referring to Exhibit P-1, listing the duties and powers of Mr. Pépin, there is nothing in this document, nor in the letter of Mr. Von Finckenstein dated 15 December, to indicate that Mr. Pépin is authorized to sign such a document. Furthermore, Mr. Pépin admitted during the October 7 hearing that he had been delegated no powers;
16. We refer now to the following case: Valmont Gauthier v National Harbours Board, of 13 June 1980, heard before the Federal Court of Appeal
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and in particular page 7,
Decision Page 21 in which the Honourable Judges indicates, on the first page: “The motion is granted, the decision under appeal is quashed and the case is referred to the adjudicator to decide whether the plaintiff was unfairly dismissed, and to adjudge, as he sees fit, the orders found in paragraph 61.5(9)”
17. It will be recalled that Mr. Valmont Gauthier was challenging the powers of the person who had illegally (unfairly) dispensed with his services. A careful reading of the judgement, especially pages 5 et 6, shows that the Honorable Judges stated that the adjudicator had the power to determine whether:
“ the plaintiff was right to believe that he had been unfairly treated in being dismissed...”
18. They referred the entire case to the adjudicator (J. Jacques Turcotte, 7 and 14 September 1979 “- Tab (A) who stated on page 6 that the “release was unfair” (decision of 15 July 1980).
19. On this point, we refer you to Division V.7 of Part III of the Canadian Labour Code, Section 61.5 which provides the mechanism by which an employee whose conditions of employment are not governed by a collective agreement may, where the employee claims to have been unfairly dismissed, submit a complaint to adjudication. It is sufficient to note the 15 paragraphs of pages 1, 2, and 3 of the rulings of the Federal Court of Appeal (A-647-79) - Attorney General of Canada v. Valmont Gauthier.
20. We respectfully point out that in the Decision of: Mrs. Loraine Masse and the Jardin d’Enfants Bilingue de Loraine (1983) T.A. 832 to 837, Tab B,
Mr. Michel Bolduc, the adjudicator, refers on page 2 to the ruling of Judge Robert Auclair of the Labour Court in
Charland v. Université du Québec à Trois-Rivières (record no. 500-28-000909-796)
and to the ruling of Judge Girouard, and subsequently of his colleague Judge Auclair in a recent judgement:
Blouin v. Institut Québécois de Recherche sur la Culture (record no. 200-28-000418-82)
confirming the judgment Robert Auclair in which he stated, in particular:
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of the Honourable Judge
Decision Page 22 “That is why the Court finds that the behaviour of the University towards Dennis Charland and his behaviour towards the University show that there existed a business relationship, regardless of the form of the contract. The Court concludes that these term contracts, taken together, constitute a single contract of indefinite term, and that Denis Chartrand was an employee of the University.
21. We submit that the last contract entered into between Mrs. Beaulieu and the Department of Justice, as stated so clearly by counsel for the Employer, was accepted only on 2 June 1995 by the grievor, while her preceding contract had expired on 31 March 1995;
22. Moreover, we refer to the Directives from the Deputy Minister of Justice, Mr. Thomson:
25 January 1995, Tab C, 23. The Deputy Minister, Mr. Thomson, in a spirit of fairness, noted in the final paragraph of page 3:
“Employees hired for a specified term are not protected by the Directive on Workforce Adjustment. Nevertheless, when their term expires, the Department will attempt to appoint them to other, vacant positions”...
And on page 4, paragraphs 7 and 8: “As long as future reductions are not handled in an appropriate manner, area managers must approve all staffing requests...”
“Recruitment from outside the Department will only be contemplated in exceptional circumstances, and will require my personal approval.”
“Area managers will have to demonstrate to me in writing that it is imperative to fill the position...”
23. We respectfully submit that in the Agreement between FORD-Q and the Department of Justice, signed by the Deputy Minister of Justice and the Assistant Deputy Minister of FORD-Q, it is stated in the last lines on page, first paragraph:
“Any planned reduction of resources must be notified in writing to the Department of Justice, six months in advance, so as to give the Department time to re- assign any staff that may be affected.”
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Decision Page 23 24. During the hearing, Mr. Piché gave his responses to the questions that counsel for the grievor had presented in writing, and which are submitted under P-13;
25. We note with respect to the first question: Question: “Since the appointment of Mrs. Hélène Beaulieu on 22 November 1992, how many legal advisers have been hired and are still employed by the Department as lawyers?
Resp.: Since 21 November 1992: 187 LA-01 and LA-022 hired in Montreal or Ottawa:
91 LA have been made permanent 20 LA are no longer employed
And on page 4: Question: Legal advisers hired in 1996 after the departure of Mrs. Beaulieu:
Resp: (a) LA-01 1 April 1996 to 1 Sept. 96: - one (1) in Montreal; - eleven (11) in Ottawa;
1 September until today: - four (4) in Montreal; LA-02 1 April 1996 to 1 Sept. 96: - four (4) in Montreal, - two (2) in Ottawa
1 September until today: - four (4) in Montreal; 26. We submit that, despite the many vicissitudes that Mrs. Beaulieu has suffered since her entry into the Department of Justice, her performance has consistently been rated:
“Very good “ by Mrs. Lewis, general counsel, for her work with the Superintendent of Bankruptcy;
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Decision Page 24 “Very good “ by Mr. Pépin during her tour of duty at the Federal Office of Regional Development - Quebec.
This point was confirmed by Mr. Pépin during the hearing;
27. The Deputy Minister, Mr. Thomson, in his Directive on Staffing Control, dated 25 January 1995, was careful to state that even term personnel were to be given special attention by the Department, which would attempt to appoint them to other, vacant positions, page 3, para. 4, Tab C:
28. Exhibit P-13 shows that several persons were hired after Mrs. Beaulieu’s departure, and for the same duties, thus in effect flouting the orders of the Deputy Minister, Mr. Thomson;
30. The ruling found at Tab B, concerning term and indefinite employment, states that a term contract can become a contract of indefinite duration according to the nature of the case, as determined by the Honourable Judges Auclair, Girouard ;
31. On April 1, 1996, pursuant to the Staffing Directives of the Department of Justice, [Mrs. Beaulieu] should have been promoted to the position of LA-02. The same was true for all LA-01 employees who had 4 years of legal experience at that time, and who were hired before the staffing freeze of 1 January 1993. Under the circumstances, she lost a substantial amount of income, since her salary would have been raised automatically to a minimum of $64,000 (LA-02 salary scale), as of 1 April 1996;
32. In the budgetary forecasts submitted during the hearing by Mr. Pépin for 1994-1995, dated 20 February 1995, we find:
Salary of Mrs. Hélène Beaulieu $55,000 This salary was in fact never paid to her, despite the fact that it was shown in the budget signed by the Deputy Minister of FORD ( ), Mr. Caron, and despite the statement in the Agreement signed between the Minister of Justice and the Deputy Minister of FORD-Q, page 2, para. 1, to the effect that:
“This agreement applies to services provided by a legal adviser or counsel (at level LA 01) $42,400 - $60,200”
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Decision Page 25 Given that Mrs. Hélène Beaulieu was earning $46,400, it is clear that there were steps in the salary range and consequently she should have been given the $55,000;
FOR THESE REASONS, WE MAINTAIN THAT MRS. HÉLÈNE BEAULIEU HAS BEEN SUBJECTED TO:
DISGUISED DISMISSAL: − the Department hired external staff when it had personnel available, notwithstanding the Directive of the Deputy Minister, Mr. Thomson ;
− Mrs. Hélène Beaulieu was always given a “Very Good” performance rating;
− Her contract was renewed only on 1 June 1995, and consequently there was no interruption between 1994-1995 and 1995-1996;
− Mr. Pépin had no authority to sign the document informing her of the end of her term and the non- renewal of her contract, and consequently that document is null and void.
Moreover, even if the Adjudicator should conclude that he [Mr. Pépin] had the authority, notwithstanding the precedents and documents submitted for the record, he should award the grievor the salary for which Mr. Pépin signed on 1 February 1995, in the budget approved by FORD-Q,; the employer cannot have it both ways: either Mr. Pépin had signing authority, or he did not!
THIRD PART: CONCLUSIONS SOUGHT FOR THESE REASONS, MAY IT PLEASE THE ADJUDICATOR:
TO ACCEPT the grievor’s grievances; TO DECLARE that he has the jurisdiction to hear these grievances;
TO REJECT the Employer’s requests; MONTREAL, this day of November 1996 Public Service Staff Relations Board
Decision Page 26 The Employer’s reply In light of the representations made by the grievor, the Employer would merely like to add the following concerning the merits of her grievance;
1. The employer reiterates that Mr. Serge Pépin took no decision in informing the grievor that her employment would terminate on the date specified in her letter of offer of employment;
2. Furthermore, since that letter conveyed no decision, it follows that there was no question of its coming from a person who lacked the authority to lay off the grievor, as she claims;
3. Moreover, since the grievor has never been laid off, that argument is even less well-founded;
4. In any case, in the matter before us, any question concerning the delegation of authority relates to the internal organization of the Department of Justice, and the grievor has no grounds to complain that a particular person had no authority to do what he did;
5. Moreover, the adjudicator has no jurisdiction to rule on a violation of delegation of authority;
6. On this point, we refer to the Valmont Gauthier decisions relating to the adjudicator’s jurisdiction, and the decision in Ahmad v. the Public Service, [1974] 2 F.C. 644 which states, on pages 651 and 652:
“The extent to which public servants may or must act thus in a particular case is a question that pertains to internal organization, and third parties have no standing to contest the authority of a public servant in a particular case.”
7. In any case, since the final response to this grievance emanates from the Deputy Minister of Justice, this response has in a sense made good any violation of an instrument of delegation, because it is the Deputy Minister of Justice who establishes the instruments of delegation, and he has confirmed that Mr. Serge Pépin had the authority to transmit the letter in question to the grievor;
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Decision Page 27 Reasons for the decision on the preliminary objection The jurisdiction of an adjudicator within the context of the Public Service Staff Relations Act derives from Section 92 of the text of that Act: Adjudication of Grievances Reference to Adjudication 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; or
(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 (4),
(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 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.
(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.
(3) Nothing in subsection (1) shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act.
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Decision Page 28 (4) The Governor in Council may, by order, designate for the purposes of paragraph (1)(b), any portion of the public service of Canada specified in Part II of Schedule I.
The grievance of Mrs. Beaulieu relates to the cessation of her term employment at the Department of Justice. This cessation of employment was occasioned automatically pursuant to execution of the terms and conditions of her employment contract. As I stated in the Hanna case (Board file 166-2-26983), this is not a question of termination pursuant to a decision of the employer.
The Federal Court of Appeal arrived at the same conclusion in the case of Dansereau v The National Film Board [1979] 1 F.C. 100, which dealt with the cessation of employment for a term employee. In that case, the employee claimed that non- renewal of her contract constituted being laid off. The Court concluded that the employee was not laid off, since the term of her employment had expired. Her employment ceased by virtue of the terms of her employment contract. I believe that the Dansereau decision applies to the present case as well.
I must conclude therefore that I do not have the necessary jurisdiction to hear the grievance of Mrs. Beaulieu.
Yvon Tarte, Chairperson.
OTTAWA, 10 January 1997. Certified true translation Serge Lareau
Public Service Staff Relations Board