FPSLREB Decisions

Termination (non-disciplinary) - Incapacity - Denial of a security clearance - Stay of proceedings - Jurisdiction - employer offered the grievor to join another sector of the department - she was told her duties would not change significantly and she accepted - she reported to her new position and was told that all employees in the sector had a"secret" security clearance and that she should apply for one - the grievor so applied - three and one half months later, the employer offered the grievor a promotion in the sector - nowhere in the letter of offer was there a mention that the position required a"secret" security clearance - grievor accepted the offer - in order to appoint the grievor to the position, the employer lowered the security requirement until the grievor received her security clearance - eleven months later, the grievor had still not received a response regarding her security clearance and she inquired into the matter - employer checked and was told by the Canadian Security Intelligence Service (CSIS) that a report would be available at the end of the month - report arrived, indicating that the CSIS had serious concerns about the grievor - grievor was not informed of this - four months later, the grievor further inquired in relation to her security clearance - one and one half months later, the employer informed her that CSIS had recommended that her security clearance be denied - grievor was then informed that the deputy minister would meet with her before deciding whether to follow CSIS' recommendation - that meeting did not occur, the deputy minister denied the security clearance and terminated the grievor's employment - grievor grieved that decision - she requested that her grievance be held in abeyance until the conclusion of the Security Intelligence Review Committee's review of the decision to deny her security clearance - adjudicator denied the request - employer argued that the only issue before the adjudicator was whether the grievor was incapable of performing the duties of the position she occupied at the time of termination - employer added that the grievor's position required a security clearance, which the grievor was unable to obtain - grievor replied that she had never been informed that her employment could be terminated were she unable to obtain the security clearance - she added that the employer's policy in these circumstances was to try to find alternate employment and that the employer did not make any real effort in this regard - adjudicator found that the grievor did not meet the requirement of her position - he however commented that, had the employer waited for the grievor to obtain a security clearance before offering her to move within the department, the grievor's employment would not have been terminated - it is only because the employer needed to expedite matters to resolve a staffing shortage issue that the situation of termination presented itself - adjudicator invited the employer to review its decision to terminate the grievor's employment and to try to find her alternate employment in the department. Grievance denied. Cases cited: Thompson v. Canada (Deputy Minister of Agriculture) (1992), 89 D.L.R. (4th) 219 (S.C.C.).