FPSLREB Decisions

Files: 166-2-27473 149-2-162

Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN BRIAN A. CATLOS Grievor and TREASURY BOARD (Statistics Canada)

Employer

Before: J. Barry Turner, Board Member For the Grievor: Darren Hogan, Student-at-law For the Employer: Robert Jaworski, Counsel Heard at Toronto, Ontario, January 20, 1998

Decision Page 1 DECISION Brian Catlos, a former Census Commissioner, Statistics Canada, Toronto, Ontario, is grieving the termination of his employment. His grievance dated July 14, 1996 reads: IN BRIEF: I WAS DISMISSED FROM MY POSITION AS CENSUS COMMISSIONER ON 16 APRIL 1996 WITHOUT DUE CAUSE, WITHOUT ANY PREVIOUS WRITTEN NOTICE OF ANY INFRACTION, AND DESPITE MY COMMITMENT TO PERFORM MY DUTIES AS MY SUPERVISORS REQUESTED.

PLEASE SEE ATTACHED ADDENDA SHEET FOR DETAILS. The employer’s letter of termination dated April 16, 1996 by Douglas Newson, Director, Statistics Canada - Census, Ontario Region reads: Statistics Canada requires that Census Commissioners work on a full time basis to complete their assignment accurately and within the prescribed schedules as directed by their supervisor. Census Commissioner job requirements were covered with you at the time of hiring and agreed to, by you, in signing the Terms and Conditions of Employment on February 29, 1996.

Your inappropriate behaviour, poor judgment and difficulty in following your supervisor’s directions have contravened the Terms and Conditions of your Employment. As a result, I have authorized your dismissal effective today, April 16, 1996.

All of the maps, manuals, training materials, identification card and supplies which you were issued must be returned immediately. Any monies owing will be authorized for payment once all materials have been recovered.

Thank you in advance for your co-operation. Mr. Catlos is requesting the following corrective action: I SEEK PAYMENT OF THE BALANCE OF MY CONTRACT (INCLUDING RENTAL OF OFFICE) OF $5893.75. I ALSO SEEK A LETTER ADMITTING I WAS DISMISSED WITHOUT DUE CAUSE AND PROCESS, AND THAT THIS BE NOTED IN MY PERSONNEL FILE.

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Decision Page 2 Mr. Catlos is also requesting the Public Service Staff Relations Board (PSSRB) to extend the time allowed to submit a grievance as may be permitted under section 63 of the PSSRB Regulations and Rules of Procedure, 1993. Section 63 reads: 63. Notwithstanding anything in this Part, the times prescribed by this Part or provided for in a grievance procedure contained in a collective agreement or in an arbitral award for the doing of any act, the presentation of a grievance at any level or the providing or filing of any notice, reply or document may be extended, either before or after the expiration of those times

(a) by agreement between the parties; or (b) by the Board, on the application of an employer, an employee or a bargaining agent, on such terms and conditions as the Board considers advisable.

I am being asked to decide three issues: whether I have jurisdiction to hear the merits of the grievance; whether or not the grievance is timely; and lastly, based on the merits, should the grievor’s requested corrective action be granted. I agreed to first hear arguments on jurisdiction and timeliness.

The hearing lasted one-half day with no witnesses testifying and four exhibits submitted into evidence on consent of the parties.

Argument on Jurisdiction for the Employer Mr. Jaworski argued the grievor was employed by the Minister responsible for Statistics Canada to work on the 1996 Census of Canada as a Census Commissioner under the Statistics Act and under certain Terms and Conditions of Employment (Exhibit E-2) that the grievor signed. The following are relevant extracts from that document: APPLICATION You are employed by the Minister responsible for Statistics Canada for the 1996 Census of Canada under subsection 5(1) of the Statistics Act, R.S.C. 1985, c. S19. For the purpose of these terms and conditions of employment, any reference to “employee” means an employee hired under the provisions of Section 5(1) of the Statistics Act.

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Decision Page 3 . . . MANAGERIAL RESPONSIBILITIES Supervisors and managers from Statistics Canada shall not be restricted by these terms and conditions from exercising control over the quality and quantity of work being performed for Statistics Canada during the 1996 Census of Canada.

AVAILABILITY FOR WORK An employee is required to work the necessary hours to complete the assignment accurately and within the prescribed schedules as outlined by the supervisor. Working evenings and Saturdays is frequently necessary.

. . . SUPPLEMENTARY ACTIVITIES An employee shall not engage in any supplementary activities, such as selling or soliciting, during any periods for which he/she is employed by Statistics Canada, unless otherwise agreed to by Statistics Canada.

An employee shall not enter into any discussions about politics or other controversial topics with respondents/members of the public, or involve themselves in debates with the media about the work.

RESIGNATIONS When an employee resigns before completing the assignment, the employee will be paid for the work performed, and for approved expenses incurred up to the date of resignation.

DISMISSALS In consultation with their manager, a supervisor may dismiss an employee for failure to perform duties or misconduct in the performance of duties. The employee will be paid for work performed, and for approved expenses up to the date of dismissal.

. . . RATE OF PAY Census commissioners will be paid $8,000 less applicable deductions for the performance of duties in the 1996 Census

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Decision Page 4 of Canada. This rate of pay is subject to Treasury Board approval.

. . . PERIOD OF EMPLOYMENT AND AVAILABILITY FOR WORK

Census commissioners are required to: − begin work on a full time basis on the 1996 Census of Canada immediately after completing the first training session and remain involved with the census until the completion of duties, which should terminate on or about June 28, 1996; and − work evenings and Saturdays, as necessary. DUTIES AND REQUIREMENTS The Minister has prescribed the following duties and requirements for a census commissioner: − to attend census commissioner training sessions given by Statistics Canada; − to gain a thorough knowledge of the Census Commissioner District including a detailed description of the boundaries of each enumeration area by reviewing the maps provided and by travelling and becoming familiar with the actual communities and towns; − to receive, check and distribute supplies; − to take reasonable care of all documents, maps and supplies furnished by Statistics Canada and to return them immediately upon request; − to distribute local publicity material designed to encourage goodwill and co-operation from the public; − to recruit census representative candidates, test their abilities and recommend the most competent as census representatives in accordance with the guidelines provided; − to conduct prescribed training courses to instruct census representatives in the performance of their duties; − to check if Address Register procedures have been followed correctly; − to recruit, test and train an administrative assistant; − to establish contact with hotels, motels, institutions as well as some apartment building administration in preparation for the census; − to supervise each census representative to ensure that the work is being done accurately and completely; − to follow up cases of late mail returns (no questionnaire received), and non-cooperation (refusals) on the part of the public;

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Decision Page 5 − to follow up on cases where the respondent does not wish to mail his/her questionnaire to the address on the mail return envelope; − to submit reports to the Census Area Manager on scheduled dates; − the check the assignment returned by each census representative to ensure that it is completed and accurate; − to ensure that assignments which are rejected by the Census Commissioner’s Quality Check or by Quality Control are followed up, complete and accurate; − to send completed materials as authorized to the Regional Census Office of Statistics Canada; − to have the full time use of a motor vehicle and a valid driver’s license; − to have reached the provincial or territorial age of majority or older prior to signing Terms and Conditions of Employment - Census Commissioner (Form 24B) and the start of duties; − to fulfil the requirements of the job to its completion; and − to perform other related duties. Mr. Catlos signed an Oath or Affirmation of Office and Secrecy also in conformity with the Statistics Act on February 29, 1996 (Exhibit E-1). The grievor accepted a position of Census Commissioner for Rosedale Electoral District on March 5, 1996 (Exhibit E-3), even though his first day of work was actually March 4, 1996.

Mr. Jaworski argued that there is no reference to the Public Service Commission (PSC), to the Public Service Employment Act (PSEA), to the Public Service Staff Relations Act (PSSRA), or to a classification level in the Public Service in any of the documents before me; Mr. Catlos was simply not an employee of the Public Service, and by definition under the law has no recourse before the PSSRB.

He concluded that the grievor was hired by the Minister responsible for Statistics Canada under the Statistics Act to do a specific job for a short period of time. The position was to have lasted approximately four months but was terminated after approximately one and one-half months.

Mr. Jaworski referred me to the following definitions in the interpretation section 2 of the PSSRA: "employee" means a person employed in the Public Service, other than

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Decision Page 6 (a) a person appointed by the Governor in Council under an Act of Parliament to a statutory position described in that Act,

(b) a person locally engaged outside Canada, (c) a person whose compensation for the performance of the regular duties of the position or office of the person consists of fees of office, or is related to the revenue of the office in which the person is employed,

(d) a person not ordinarily required to work more than one third of the normal period for persons doing similar work,

(e) a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that Force under terms and conditions substantially the same as those of a member thereof,

(f) a person employed in the Canadian Security Intelligence Service who does not perform duties of a clerical or secretarial nature,

(g) a person employed on a casual basis, (h) a person employed on a term basis, unless the term of employment is for a period of three months or more or the person has been so employed for a period of three months or more,

(i) a person employed by or under the Board, (j) a person who occupies a managerial or confidential position, or

(k) a person who is employed in a portion of the public service of Canada specified in Part I of Schedule I under a program designated by the Treasury Board as a student employment program,

and, for the purposes of this definition, a person does not cease to be employed in the Public Service by reason only that the person ceases to work as a result of a strike or by reason only of the termination of employment of that person contrary to this Act or any other Act of Parliament;

“Public Service” means the several positions in or under any department or other portion of the public service of Canada specified in Schedule I,

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Decision Page 7 “grievance” means a complaint in writing presented in accordance with this Act by an employee on his own behalf or on behalf of the employee and one or more other employees, except that

(a) for the purposes of any of the provisions of this Act respecting grievances, a reference to an "employee" includes a person who would be an employee but for the fact that the person is a person described in paragraph (f) or (j) of the definition "employee", and

(b) for the purposes of any of the provisions of this Act respecting grievances with respect to termination of employment pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act or disciplinary action resulting in suspension, a reference to an "employee" includes a former employee or a person who would be a former employee but for the fact that at the time of the termination of employment or suspension of that person the person was a person described in paragraph (f) or (j) of the definition "employee";

Schedule I, Part I of the PSSRA lists Statistics Canada as a department in respect of which Her Majesty as represented by the Treasury Board is the employer.

In support of his argument, Mr. Jaworski referred me to the decision of the Supreme Court of Canada in Canada (Attorney-General) v. Public Service Alliance of Canada (1991), 80 D.L.R. (4th) 520 (“Econosult”) wherein Sopinka J. for the majority stated at page 530: ... I have come to the conclusion that Parliament did not intend to confer jurisdiction on the Board (PSSRB) with respect to the labour relations of employees who are not members of the public service.

Mr. Jaworski pointed out that Sopinka J. went on to say at page 532: ... The positions in the public service are determined by the Treasury Board and appointments to the public service are within the exclusive right and authority of the Public Service Commission. Exceptions are carefully spelled out in the Employment Act

... In the scheme of labour relations which I have outlined above there is just no place for a species of de facto public servant who is neither fish nor fowl. The introduction of this

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Decision Page 8 special breed of public servant would cause a number of problems which leads to the conclusion that creation of this third category is not in keeping with the purpose of the legislation when viewed from the perspective of a pragmatic and functional approach.

Counsel concluded this argument by referring again to Sopinka J. at page 533: ... In short, the situation is aptly summed up by Marceau J.A. speaking for the majority of the Federal Court of Appeal when he states (at p. 643):

There is quite simply no place in this legal structure for a public servant (that is, an employee of Her Majesty, a member of the Public Service) without a position created by the Treasury Board and without an appointment made by the Public Service Commission.

He argued Mr. Catlos was not appointed by the Public Service Commission, but was appointed under subsection 5(1) of the Statistics Act which states: 5. (1) The Minister may employ, in the manner authorized by law, such commissioners, enumerators, agents or other persons as are necessary to collect for Statistics Canada such statistics and information as the Minister deems useful and in the public interest relating to such commercial, industrial, financial, social, economic and other activities as the Minister may determine, and the duties of the commissioners, enumerators, agents or other persons shall be those duties prescribed by the Minister.

(2) The Minister may, for such periods as the Minister may determine, use the services of any employee of the public service of Canada in the exercise or performance of any duty, power or function of Statistics Canada or an officer of Statistics Canada under this Act or any other Act, and any person whose services are so used shall, for the purposes of this Act, be deemed to be a person employed under this Act.

(3) Any persons retained under contract to perform special services for the Minister pursuant to this Act and the employees and agents of those persons shall, for the purposes of this Act, be deemed to be persons employed under this Act while performing those services.

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Decision Page 9 He argued subsection 5 (2) allows for the use of public servants for statistics work, and thereby clearly differentiates between members of the Public Service and persons employed under subsection 5 (1) who are not appointed to the Public Service.

Mr. Jaworski concluded that Mr. Catlos is not an employee of the Public Service and therefore does not have access to the grievance procedure under the PSSRA.

With respect to PSSRB decision issued on May 1, 1985 (Board files 144-2-240 and 144-2-241) between the Public Service Alliance of Canada and Treasury Board, relating to an application for certification for senior interviewers and interviewers, Ministry of Supply and Services, Mr. Jaworski argued that even though the Board at the time found these persons were “employees” within the meaning of the PSSRA, the Econosult decision (supra) in 1991 held that the meaning of “employee” is a jurisdiction-conferring provision which has been set by Parliament at page 530: ... The express definition of employee, however, shows a clear intention by Parliament that it has decided the category of employee over which the Board is to have jurisdiction. It is restricted to persons employed in the public service and who are not covered by the Canada Labour Code. The Board’s function by the very words of s. 33 is not to determine who is an employee but rather whether employees who come within the definition provided, are included in a particular bargaining unit.

He reminded me that my authority to adjudicate a grievance under subsection 92 (1) of the PSSRA refers to “... where an employee has presented a grievance ...”, and argued that, in the matter before me, Mr. Catlos is not an employee and I have no jurisdiction in this matter.

Argument on Jurisdiction for the Grievor Mr. Hogan on the other hand argued Mr. Catlos is an employee under the PSSRA and that the Econosult decision (supra) is to be distinguished from the grievance before me since Econosult (supra) is a standard of review as to who is an employee, not whether or not the Board can decide who is an employee. He argued only Parts I, II and III of the PSEA applied in the Econosult decision (supra) but Mr. Catlos’ situation is under Part IV. He added that the reference by Sopinka J. to “the scheme of labour relations” is not relevant, since Econosult is a private sector company that hired

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Decision Page 10 teachers, whereas Mr. Catlos was hired by a government department, Statistics Canada. He entered a T4 - 1996 slip for the grievor (Exhibit G-1) that refers to the word employee, that is Mr. Catlos, and to employer, that is Statistics Canada.

He argued that in the Econosult decision (supra), Sopinka J. stated at page 524: The Board acknowledged at the outset that if it were to be limited by what it considered to be mere “form”, there would be no controversy that the teachers in question were employees of Econosult. ...

The Supreme Court of Canada found the teachers did not fit the definition of employee and that the Board was wrong in its determination since it cannot apply a broad definition of employee. He said Mr. Catlos is not like an employee; he is an employee and there is no legal definition that excludes him (emphasis mine).

Mr. Hogan argued that I must look at the definition of “employee” under the PSSRA, then the definition of “Public Service”, and then Schedule I, Part I, and deal with it all together to determine Mr. Catlos is indeed an employee.

He referred to Exhibit E-2, page 1, under Application, that refers to the words 'Statistics Canada' that are listed in Schedule 1, Part I of the PSSRA, and Rate of Pay on page 3 of Exhibit E-2 that refers to 'Treasury Board' also referred to in Schedule I, Part I of the PSSRA. He concluded Mr. Catlos must be considered an employee.

Mr. Hogan argued subsection 5 (2) of the Statistics Act merely makes it clear that persons already in the Public Service can assist the Minister if necessary. He argued paragraph 17 (1) (a) of the Statistics Act does not differentiate between a public servant referred to in subsection 5 (2), or a temporary employee described in subsection 5 (1) of the Statistics Act. Paragraph 17(1)(a) of the Statistics Act reads: 17. (1) Except for the purpose of communicating information in accordance with any conditions of an agreement made under section 11 or 12 and except for the purposes of a prosecution under this Act but subject to this section,

(a) no person, other than a person employed or deemed to be employed under this Act, and sworn under section 6, shall be permitted to examine any identifiable individual return made for the purposes of this Act;

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Decision Page 11 Mr. Hogan argued that in Econosult (supra), the Supreme Court said the PSSRA, the PSEA and the Financial Administration Act (FAA) all determine who is a public servant. Mr. Hogan argued subsection 2 (1) of the PSEA, the definition of Public Service, “has the same meaning as in the Public Service Staff Relations Act”, as does the FAA in subsection 11 (1), and schedule 1.1 of the FAA also refers to Statistics Canada.

Mr. Hogan referred me to section 8 of the PSEA that reads: 8. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament.

He argued the Econosult decision (supra) relied on section 8 in its reasoning, but said Mr. Catlos was indeed hired under another Act of Parliament, namely the Statistics Act, and I must look at his hiring under this Act and relate it to the PSSRA, where there is nothing to exclude Mr. Catlos from being an employee for our purposes.

He went on to say that, even though the application for certification for senior interviewers and interviewers employed by the Minister of Supply and Services at the time responsible for Statistics Canada, was not proceeded with (supra), the PSSRB’s conclusion at the time, that the persons referred to in this decision who were ultimately deemed by the PSSRB to be employees of Her Majesty in right of Canada as represented by the Treasury Board still stands, in spite of the Econosult decision (supra).