FPSLREB Decisions

Jurisdiction - Lay-off - Subsection 92(3) of the Public Service Staff Relations Act - Termination (disciplinary) - Reinstatement - Remedy - grievor, a Financial Officer, had been employed in the federal Public Service since 1972 and had joined the Treasury Board Secretariat (TBS) in 1977 - although she had applied for positions at higher levels, she had never been promoted during her period of employment with TBS - she had on several occasions been successful in challenging the employer's staffing practices and, as a result, was considered by management to be a problem employee - nonetheless her performance appraisals had been fully satisfactory or above, apart from the 1989 appraisal which was satisfactory - the grievor had repeatedly requested French language training which had been denied to her on the ground that she was in a unilingual position - in 1991, her position was changed to bilingual but she continued to be denied full-time language training - only after complaining to senior management in 1996 was she offered full-time French language training at Asticou to enable her to achieve level B proficiency - in October and November 1996 the learning environment at Asticou was extremely positive - this changed in January 1997 when both teachers were changed - the whole class, including the grievor, wrote letters complaining about the teaching methods which deprived the class of the opportunity to practice French - as a result, the Acting Director of Administration at Asticou wrote two letters of complaint about the grievor to the employer dated March 20 and 25, 1997 - in one of these letters, it was indicated that the grievor would not pass the oral interaction test - this was said notwithstanding the fact that the grievor had done quite well on a similar test recently - the employer conducted no independent inquiry into the complaints made against the grievor by the Acting Director - however, at the hearing two students who were at Asticou with the grievor confirmed her version of the events - arising out of the complaints the employer terminated the grievor's French language training and her position was declared surplus to requirements on March 27, 1997 - ultimately she accepted the Early Retirement Incentive under protest as she wished to continue working - employer alleged that the legal basis for the grievor's surplus declaration was section 29 of the Public Service Employment Act and therefore theadjudicator lacked jurisdiction to entertain this grievance in light of subsection 92(3) of the Public Service Staff Relations Act - adjudicator concluded that this was in reality a disciplinary discharge and therefore he had jurisdiction to entertain the grievance - as the employer did not attempt to establish that it had grounds for the discharge, the adjudicator ordered the employer to reinstate the grievor in a position similar to the one she occupied at the date of her discharge with full back pay and benefits and to return her to French language training - the grievor was directed to reimburse the employer for all moneys she had received arising out of the declaration of surplus status - adjudicator found that he lacked jurisdiction to award grievor compensation for her legal costs and that the necessary legal foundation had not been laid to justify an award of aggravated damages - however, adjudicator recommended that senior management provide the grievor with a written letter of apology as well as some monetary compensation for her mental distress arising out of the employer's wrongful actions. Grievance allowed. Cases cited: Canada (Attorney General) v. Hester, [1997] 2 F.C. 706; Avey (166-18-27611); McMorrow (166-2-23967); Lavigne (166-2-16452); Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085; Wallace v. United Grain Growers Limited, [1997] 3 S.C.R. 1; Marinos (166-2-27446).