FPSLREB Decisions

[1]   The grievor, Edward Dean Foreman, had, prior to the filing of this grievance, worked for the Department of Indian and Northern Affairs Canada since 1991 as a seasonal indeterminate employee. During that time, he had held various positions on a term, acting or rotational basis. At the time of the grievance, his substantive position with the Department was as a seasonal indeterminate Towerperson at the GS-PRC-02 level.

[2]   In 1998, as a result of a closed competition in his department, Mr. Foreman placed fourth on an eligibility list for a term Assistant Resource Management Officer (ARMO) position. The eligibility list (Appendix E to the parties' Agreed Statement of Facts) was signed by the Human Resources Manager, Ms. Joanne Dennis, on May 4, 1998, and was valid for appointments until July 31, 1998. This list was extended periodically until almost the end of March 1999. From the eligibility list, Mr. Foreman was offered and accepted an acting assignment at the GT-04 level from July 27, 1998, to March 31, 1999, in Ross River, Yukon Territory. The letter of offer (Appendix F to the parties' Agreed Statement of Facts) noted that when the grievor was first appointed within the department, he was informed that employees were required to comply with the provisions of the Conflict of Interest and Standards of Professional Conduct for the Public Service. In late November of 1998, the employer's staffing officer, Ms. Saira Sahid, verbally offered the grievor indeterminate status for the Ross River ARMO position, which offer was verbally accepted by the grievor. No written offer of employment was proffered to the grievor at this time and he was simply advised that the formal letter of offer would follow in due course. The position in question was to become indeterminate effective April 1999.

[3]   On December 17, 1998, the grievor was advised in writing by Mr. Paul Butra, the A/Regional Manager, Field Operations, that the department would be conducting an administrative investigation into allegations of unprofessional conduct on his part (Appendix B to the parties' Agreed Statement of Facts). The grievor was further advised that if the allegations proved to be true, his personal suitability for the position he currently held on an acting basis would be called into question and he could be subject to disciplinary action. As a result, the letter advised the grievor that the indeterminate offer of the ARMO position would not be made, pending the results of the investigation. Mr. Foreman was verbally informed by departmental staff that the eligibility list and his status as ARMO would remain unchanged until such time as the internal investigation was completed and any resulting actions were taken. This verbal commitment was confirmed in writing by Diane McPhee, Staff Relations Advisor, in an email dated February 9, 1999 (Appendix H to the parties' Agreed Statement of Facts).

[4]   On March 25, 1999, Mr. Mark Zrum, A/Director Renewable Resources, informed Mr. Foreman by letter that his acting position would expire on March 31, 1999, as stated in the letter of offer (Appendix A to the parties' Agreed Statement of Facts). That same day, Mr. Paul Butra informed the grievor, in writing, that the closed eligibility list would expire on March 31, 1999 (Appendix C to the parties' Agreed Statement of Facts). Both letters were written prior to Mr. Foreman's receiving a copy of the investigation report. While the report had been completed as of March 16, 1999, the grievor had not yet received a copy for his consideration and input. As a result, Mr. Foreman reverted back to his substantive position of Towerperson and was placed on seasonal lay-off.

[5]   The grievor filed a grievance on March 29, 1999, which reads as follows:

I grieve the letter to me signed by Mark Zrum dated March 25, 1999 as a disguised disciplinary action resulting in a financial penalty. This action was taken following a verbal offer of indeterminate employment and prior to the Administrative Investigation, referenced in a letter dated December 17, 1998 signed by Paul Butra, was fully completed.

I further grieve the letter dated March 25, 1999 signed by Paul Butra as a disguised disciplinary action resulting in a financial penalty and a breach of the commitment made by Human Resources to extend the said eligibility list until the Administrative Investigation referred to in the letter dated December 17, 1998 was fully completed.

In addition said actions are a breach of Treasury Board Policy and Departmental Directives.

Corrective Action Requested

I be made whole including an indeterminate appointment to an ARMO position at a mutually agreed upon location, and full wages & benefits at the ARMO level effective April 01, 1999 until such appointment is made. I request a hearing at each level of the grievance procedure.

[6]   The grievor, in addition to the present grievance, also filed a complaint before the Public Service Commission of Canada, alleging that he had been improperly denied an indeterminate appointment and that he was treated improperly under the Treasury Board Policy on Harassment in the Workplace. His grievance before this Board was, at his request, placed in abeyance pending a determination on the complaint. The PSC concluded, in a report issued on April 29, 2002 (Appendix G of the parties' Agreed Statement of Facts), that the allegations were unfounded and closed the file.

[7]   The employer, by letter dated May 15, 2003, objected to the jurisdiction of the Board to hear the grievance. Pursuant to an agreement between the parties, it was agreed that the issue of the Board's jurisdiction was to be determined by way of written submissions. The parties therefore submitted to the Board an Agreed Statement of Facts along with each of their submissions.

Employer's arguments

[8]   The grievance, as written, contests the non-renewal of the grievor's acting assignment as well as the non-renewal of the eligibility list. He requests that he be made whole, including an indeterminate appointment to an ARMO position, as well as full wages and benefits from April 1, 1999. According to the grievance wording, such actions constitute a disguised disciplinary action resulting in a financial penalty. On July 18, 2000, the Public Service Alliance of Canada, in a letter to the Board, states that the grievance concerns a termination of employment.

[9]   It is the employer's position that the Board lacks jurisdiction to hear this grievance since it does not relate to the interpretation of a collective agreement or arbitral award, pursuant to paragraph 92(1)(a) of the Public Service Staff Relations Act (PSSRA), nor does it relate to a suspension, financial penalty or disciplinary action leading to a discharge, suspension or financial penalty under the terms of paragraphs 11(2) (f) and (g) of the Financial Administration Act, pursuant to paragraph 92(b) of the PSSRA. In support of its arguments on this issue the Employer submitted the following cases: Dansereau v. National Film Board v. Pierre-André Lachapelle, [1979] 1 F.C. 100; Hanna v. Treasury Board (Citizenship and Immigration)(Board file 166-2-26983); Blackman v. Treasury Board (National Defence) (Board file 166-2-27134 & 27139); Lecompte v. Treasury Board (Health Canada) (Board file 166-2-28452) and Beaulieu v. Treasury Board (Justice Canada) (Board file 166-2-27313). The Employer maintains that the grievor's employment as an acting ARMO was not terminated for any disciplinary reason but was occasioned automatically pursuant to the execution of the terms and conditions of his employment contract. It argues that the appropriate administrative body for contesting this type of staffing issue is the Public Service Commission and, since the Commission had already determined his complaint to be unfounded, the present grievance would constitute an abuse of process if allowed to proceed: Lawson v. Treasury Board (Revenue Canada- Taxation) (Board file 166-2-25530), Mark v. Treasury Board (Transport Canada) (Board file 166-2-21451 to 21455), Marinos v. Canada (Treasury Board) (1998), 157 F.T.R. 70. Finally, the employer argues that since the authority to appoint falls under the provisions of the Public Service Employment Act (PSEA), an adjudicator would have no jurisdiction to grant the remedy claimed by the grievor. As the Board lacks jurisdiction on both the subject matter of the grievance as well as the remedy requested, the employer argued that the grievance should be dismissed without a hearing.

Grievor's arguments

[10]   The bargaining agent, on behalf of the grievor, submitted that the actions taken by the Employer to end the grievor's acting assignment and to allow the closed competition to expire constitute disguised discipline that resulted in a financial penalty: Whyte v. Treasury Board (Human resources Development Canada) (Board file 166-2-28658); Owens v. Treasury Board (Royal Canadian Mounted Police) (Board files 166-2-31372 & 31373). It pointed to the actions of the employer as proof of the employer's bad faith towards the grievor. The two letters dated March 25, 1999, directly contravened the employer's commitment to the grievor to allow him to remain an ARMO until the investigation was complete. Also, Mr. Butra's letter dated December 17, 1998, advised the grievor that he would be afforded all the rights as outlined in the Departmental Administrative Investigation Policy but once again, the employer's actions were in direct contradiction to their statements in that the employer took disciplinary action against the grievor prior to the conclusion of the investigation. Also, the letter signed by Ms. Jennifer Guscott and dated May 19, 2000, was submitted as further proof that the actions taken by the employer were disciplinary in nature. The letter states, in part, "I have tempered my decision in this matter giving consideration to the events that may have contributed to your situation and will not be taking any further action." The bargaining agent submitted that the use of the word "further" indicates that some action had been taken prior to the writing of the letter and that that action was disciplinary in nature. The bargaining agent also noted that the letter of Ms. Guscott was written more than 14 months after the employer took action against the grievor, thereby denying him natural justice by virtue of the lengthy delay in coming to a decision in this matter. The grievor was also denied natural justice since he was provided with a copy of the draft investigation report only after the employer had taken action against him. It therefore argued that the Board has jurisdiction over the grievance since it does in fact relate to disciplinary action leading to a financial penalty under the terms of paragraphs 11(2)(f) and 11(2)(g) of the Financial Administration Act, pursuant to paragraph 92(b) of the PSSRA: Valdares v. Treasury Board (Health Canada) (Board files 166-2-19596 & 19597); MacLean v. Treasury Board (Revenue Canada-Customs and Excise) (Board file 166-2-22580). The bargaining agent further submitted that the PSC does not have jurisdiction over the discipline in issue in this case and that the grievance was rightly before an adjudicator.

[11]   The bargaining agent argued that Dansereau (supra) was not applicable to the case at hand. In that case, the Federal Court found that there was no cause and effect relationship between the hiring of the free lancers by the employer and the fact that the grievor's employment was terminated. In the case at hand, it argues, there is a cause and effect relationship between the ending of the grievor's assignment and the investigation that was underway. In the Hanna (supra) case, the adjudicator found that the grievor's employment came to an end as the result of the operation of her contract of employment and not as a result of a decision of the employer independent of the terms of the contract. The bargaining agent argued that in the case at hand, the termination of the grievor's acting assignment was independent of his contract of employment. As for the Blackman (supra) case, the union argued that it was not applicable to the case at hand since it suffered from the same problems as the Hanna (supra) case and since it was found that the grievor had changed the nature of the grievance by introducing the disciplinary allegation only at the adjudication stage. This was not the case here since the grievance filed by Mr. Foreman clearly alleged "disguised discipline" on its face. Turning to the Lecompte (supra) decision, the bargaining agent distinguished it on the basis that it was not convinced that bad faith against the employer had been proven. In this case, the bargaining agent argued, there was such evidence. Finally, it argued that in neither the Lawson (supra) nor the Mark (supra) case was any allegation of discipline made.

[12]   On the issue of remedy, the bargaining agent agreed that the adjudicator does not have the jurisdiction to appoint a grievor to a position and it therefore requested compensation in lieu for the applicable period of time.

[13]   The bargaining agent therefore submitted that an adjudicator assigned to hear a reference to adjudication under section 92 of the PSSRA has jurisdiction in this matter and that the subject matter of the grievance, disguised discipline, falls squarely within the jurisdiction of an adjudicator appointed by the Public Service Staff Relations Board (PSSRB). It therefore requested that the grievance be heard by an adjudicator.

Employer's reply

[14]   In reply, the employer reiterated its contention that the Dansereau and Hanna line of cases applied and its argument that given that the PSC had jurisdiction over the subject matter in issue, the present grievance was an abuse of process. It also argued that given that the adjudicator was without jurisdiction to grant the grievor appointment to a position, it was not possible for this same adjudicator to order compensation in lieu.

Decision

[15]   As stated above, the issue in this decision is limited to whether or not an adjudicator of the PSSRB has the jurisdiction to hear the grievance filed by Mr. Foreman.

[16]   Under section 92 of the PSSRA, the jurisdiction of an adjudicator is fairly limited and cannot be expanded, even with the consent of the parties. In accordance with section 92, the jurisdiction of an adjudicator is limited to the interpretation or application of a collective agreement on one hand, and termination of employment and certain disciplinary actions on the other hand. The bargaining agent has not alleged any violation of the collective agreement applicable to the grievor. Rather, it has alleged that the actions taken by the employer (i.e. it's failure to renew the grievor's acting assignment and it's decision to allow the eligibility list to expire) constitute disguised discipline resulting in a financial penalty and termination.

[17]   In my view, the actions (or inactions) of the employer do not constitute "termination" or "disciplinary action" under section 92 of the PSSRA. With regard to his claim regarding the non-renewal of his acting assignment, Mr. Foreman's appointment was for a specified term and that term came to an end. Pursuant to section 25 of the PSEA, the grievor ceased to be an employee upon the expiration of that term. There is ample legal precedent for maintaining that the termination of a term appointment does not constitute dismissal. The PSSRB's jurisprudence deals with terminations of employment at the expiration of a term in Marinos (Board file 166-2-27446), Hanna (Board file 166-2-26983), Blackman (Board file 166-2-27134), Lecompte (Board file 166-2-28452) and Dansereau v. National Film Board and Pierre-André Lachapelle, [1979] 1 F.C. 100 (F.C.A.). In Dansereau, the Federal Court of Appeal, at pages 101 and 102 held 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.

[18]   I believe that this decision applies to the present case as well.

[19]   With regard to the eligibility list and the fact that he was not appointed to the indeterminate ARMO position, the grievor's recourse lies with the Public Service Commission and a challenge under the PSEA. Indeed, Mr. Foreman acknowledged this fact by first pursuing a complaint to the PSC on the issue of the employer's failure to appoint him to the indeterminate position from the eligibility list. The PSC had the proper jurisdiction to deal with the matter and did so. If the grievor wishes to challenge that decision, it can only be by way of a proceeding before the Federal Court of Canada. The matter has been properly considered by the body legally empowered to do so and it was dismissed. It cannot now be the subject of a grievance under section 92 of the PSSRA. In the instant case, I believe that the grievor is attempting to have a re-hearing of the same issues that formed the basis of the investigation and report by Mr. Greg Larocque, an investigator in the PSC's Recourse Branch in Vancouver.

[20]   The bargaining agent has attempted to prove the employer's bad faith in the instant case, but I am not persuaded that such bad faith indeed existed. The mere fact that the employer had concerns regarding the grievor's suitability to continue to act in the ARMO position is not, in and of itself, proof of bad faith. In Attorney General of Canada v. Judith L. Penner, [1989] 3 F.C. 429, Mr. Justice Marceau of the Federal Court of Appeal analyzes the Supreme Court decision in Roland Jacmain and Attorney General of Canada and Public Service Staff Relations Board, [1978] 2 S.C.R. 15 and explains, at page 440, the nature of the review that an adjudicator seized with a grievance such as the one in this case must conduct to determine if the decision was made in good faith and to ensure that the actions of the employer were in fact what they seemed to be and not a disguised disciplinary action.

(.)That would be an application of the principle that form should not take precedence over substance. A camouflage to deprive a person of a protection given by statute is hardly tolerable. In fact, we there approach the most fundamental legal requirement for any form of activity to be defended at law, which is good faith.

[21]   In order to prove bad faith on the employer's part, the grievor must prove that the actions of the employer were a ruse used to disguise an unlawful termination. I find that the evidence before me does not support such a conclusion.

[22]   The union also pointed to the fact that the employer had contravened the terms of its own Administrative Investigation Policy and its written promise to the grievor as evidence of bad faith. The policy, at paragraphs 5.8 and 6.1 says the following:

5.8   Principal witness: The departmental employee who is accused or suspected of engaging in misconduct.

6.1   

Policy Statements:

3. The principal witness has the right to be presumed innocent of the misconduct until proven guilty and therefore has the right to know the details of the case, to respond to and to rebut the case and to be made aware of the consequences of an adverse decision.

[23]   Mr. Foreman argues that the employer's actions violate this policy in that the employer found him guilty of the offences as alleged prior to the issuance of the investigative report. The fact that the employer might have breached one paragraph in its policy is not, in and of itself, evidence of bad faith. In addition to this, I am not at all convinced that the employer did in fact breach its policy. The employer was entitled to conduct a disciplinary investigation to look into certain allegations against Mr. Foreman. While one might infer from paragraph 6.1(c) that the employer is prohibited from taking disciplinary action against the grievor prior to the termination of the investigation, it was nonetheless entitled to, and even required to, examine whether or not Mr. Foreman's acting assignment should be extended once again. The policy did not require the employer to extend Mr. Foreman's term assignment until such time as the investigation was complete. The investigation, and any disciplinary action arising as a result of its findings, is a separate matter from the acting assignment. Also, I find that the employer did in fact follow the terms of paragraph (c) in that the grievor was made aware of the allegations against him and was advised that disciplinary action might be taken against him. The grievor did not present evidence before me that he was in any way prevented from rebutting the case against him. I find that the employer did not in fact violate its policy and therefore cannot impute bad faith based on this allegation.

[24]   The bargaining agent also drew my attention to the letter of Ms. Guscott dated May 19, 2000. This document was appended to the written submissions of the bargaining agent and referred to as Appendix J. Since the employer has not objected to the filing of this document, I have accepted it as part of the evidence. It points to the use of the word "further" as proof that the employer acknowledges having taken disciplinary action against the grievor. I do not agree. It is my belief that this wording is equally consistent with an interpretation that the employer had decided not to take any action at all.

[25]   The bargaining agent also argued that the grievor had been denied natural justice for two reasons. Firstly, he was denied natural justice by virtue of the lengthy delay between the moment that the employer took action against the grievor and the letter of Ms. Guscott (Appendix J). The bargaining agent's reference to the action taken by the employer refers to the events that occurred in March of 1999 (the removal of the grievor from the ARMO position and the expiration of the eligibility list). This argument might have some merit if the case before me was a grievance against a disciplinary action. In other words, this argument presupposes that the issue in question is a disciplinary one, which I find is not the case. The grievor also argued that he was denied natural justice since he was provided with a copy of the draft investigation report only once the employer had "taken action against him". Again, I come to the same conclusion. This argument presumes a grievance against a disciplinary process when the existence or non-existence of discipline is the very issue which is before me.

[26]   With respect to the corrective action requested on the grievance form, the bargaining agent acknowledged that this Board does not have the authority to grant such a request. Instead, it requested compensation in lieu of reinstatement be awarded to the grievor. Section 8 of the PSEA provides that the Public Service Commission has the exclusive right and authority to make appointments to or from within the Public Service. If I am without jurisdiction to order reinstatement, surely I cannot award compensation in lieu thereof. In any event, I need not determine this issue given the fact that there is no breach which needs to be remedied.

[27]   Lastly, I find that I am unable to grant any compensation to the grievor since he worked until the end of his term. In keeping with the Board's decision in Laird (Board file 166-2-19981), I find that I am without the jurisdiction to award any compensation past March 31, 1999, since doing so would be tantamount to making an appointment.

[28]   For all of the reasons noted above, this grievance is dismissed for want of jurisdiction.

Yvon Tarte,
Chairperson

OTTAWA, August 29, 2003.