Date: 20210929

File: 566-02-38676

 

Citation: 2021 FPSLREB 111

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Hassan Dayfallah

Grievor

 

and

 

Deputy Head

(Department of Transport)

 

Respondent

Indexed as

Dayfallah v. Deputy Head (Department of Transport)

In the matter of an individual grievance referred to adjudication

Before: Bryan R. Gray, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Nigel McKechnie, counsel

For the Respondent: Karl Chemsi, counsel

Decided on the basis of written submissions,
filed October 7 and December 13 and 20, 2019, and January 21, 2020.

REASONS FOR DECISION

I. Summary

[1] Hassan Dayfallah (“the grievor”) joined the public service in 2007 and was employed by the Department of Fisheries and Oceans when he sought career advancement and applied for a senior planning analyst (EC-5) position at the Department of Transport (“Transport Canada”) in 2015. He was found qualified for the position and was appointed to it.

[2] The Public Service Commission (PSC) later investigated the fact that he sought help from another person to complete a web-based exam that was part of the appointment process. This was contrary to the rules and the PSC concluded that the grievor had committed fraud by seeking such help, and the PSC exercised its authority under s. 69 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA) to order his appointment revoked. The PSC also decided that it would not exercise its authority under s. 73 of the PSEA to appoint him to another position.

[3] Several aspects of the investigation, declaration of fraud, and revocation of his appointment were challenged unsuccessfully before the Federal Court. The grievor now seeks to refer a grievance to the Federal Public Sector Labour Relations and Employment Board (“the Board”), in which he maintains the Deputy Head (Department of Transport) (“the respondent”) terminated his employment by disciplinary action and that the decision was unfounded, unjustified, arbitrary, discriminatory, excessive and made in bad faith.

[4] The respondent has made a motion to dismiss the grievance for lack of jurisdiction on the grounds that the cessation of the grievor’s employment was not the exercise of the respondent’s discretion and was accordingly not disciplinary.

[5] For the following reasons, I find that the Board lacks jurisdiction to accept the referral of the grievance.

II. The grievor’s submissions

[6] The motion to dismiss for lack of jurisdiction must fail, and the Federal Public Sector Labour Relations and Employment Board (“the Board”) should accept the referral of the grievance and convene a hearing of it.

[7] The only issue is whether s. 211(a) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA), which states that individual grievances with respect to terminations of employment under the PSEA cannot be referred to adjudication, deprives the Board of jurisdiction to hear this matter. It does not.

[8] This is a termination grievance. The PSC investigated the grievor for fraud committed during an online exam. The PSC revoked his appointment after making a finding against him. It also determined that his employment would cease.

[9] It would be fundamentally unjust for the grievor’s career to end due to the PSC’s jurisdictional overstep and the respondent’s implementation of it.

[10] After an investigation, the grievor was found to have committed fraud in the appointment process. The PSC revoked his appointment. But the PSC also went a step further. It decided that his employment would cease, even though it did not have that power. Without questioning the PSC’s jurisdiction, the respondent implemented the PSC’s “order” to terminate the grievor’s employment when the respondent was required to engage a disciplinary process.

[11] On the judicial review application, the PSC reversed course, distancing itself from its order terminating the grievor’s employment. The respondent now seeks to rely upon that order to justify the grievor’s termination.

[12] The PSC and the respondent have created a narrow but important jurisdictional issue, which goes beyond the grievor’s case. While it is tempting to focus on the grievor’s objectionable behaviour, this is an opportunity for the Board to delineate between a revocation of appointment and a termination of employment.

[13] The grievor could not have been terminated under s. 69 of the PSEA. In a case of fraud in an appointment process as the PSEA does not confer such authority.

[14] Section 69 of the PSEA states:

Fraud

69 If it has reason to believe that fraud may have occurred in an appointment process, the Commission may investigate the appointment process and, if it is satisfied that fraud has occurred, the Commission may

(a) revoke the appointment or not make the appointment, as the case may be; and

(b) take any corrective action that it considers appropriate.

[Emphasis added]

 

[15] At most, s. 69 of the PSEA allows the PSC to revoke an appointment and to pass on to the respondent any relevant information collected in the course of its investigation. Once it receives that information, the respondent can take disciplinary action against the grievor, and if it sees fit, possibly end his employment.

[16] The Board has jurisdiction because the termination ought to have been made for disciplinary reasons, which would have triggered the disciplinary process. The respondent decided to skip that process entirely and now must live with the consequences.

[17] In this case, the PSC passed on the information to the respondent and determined without colour of right that the grievor’s employment would cease. It then sought to implement that decision. To do it, the respondent then, as a matter of law, had to take disciplinary action against the grievor to dismiss him from his employment.

[18] Thus, the Board has jurisdiction to receive the matter under s. 209(1)(b) of the FPSLRA. The grievor seeks a remedy for the disciplinary termination of his employment, not for the revocation of his appointment.

[19] In support of his submissions, counsel for the grievor submits as follows that in Seck v. Canada (Attorney General), 2012 FCA 314, the Federal Court of Appeal stated that administrative measures intended to ensure the integrity of the appointment process in the federal public service are available to the PSC but that disciplinary measures are not available to it:

...

[48] In cases of fraud in the appointment process, the Commission may (a) “revoke the appointment or not make the appointment”, or (b) “take any corrective action that it considers appropriate”. These are administrative measures intended to ensure the integrity of the appointment process in the federal public service, not disciplinary measures per se. This distinction is important, both for the purpose of delimiting the action that the Commission may take under the section in issue and for the purpose of defining the Commission’s duty to deal fairly with the people it investigates.

...

 

[20] He also notes the Federal Court’s decision in MacAdam v. Canada (Attorney General), 2014 FC 443, in support of this submission, as follows:

...

[109] Although Seck, FCA above, at paragraphs 48-51, dealt with corrective action under s 69 of the PSEA, I am of the view that the principles set out by the Federal Court of Appeal are equally applicable in reviewing corrective action under s 66 of the PSEA. Both sections of the PSEA give the Commission the same powers of action where it finds that appointment processes have been tainted by fraud, in the case of s 69, or improper conduct, amongst other things, in the case of s 66. Those powers of action are: (a) “revoke the appointment or not make the appointment”, or (b) “take any corrective action that it considers appropriate”.

[110] In Seck FCA, above, at para 48, the Federal Court of Appeal held that these corrective measures are:

48 [...] administrative measures intended to ensure the integrity of the appointment process in the federal public service, not disciplinary measures per se. This distinction is important, both for the purpose of delimiting the action that the Commission may take under the section in issue and for the purpose of defining the Commission’s duty to deal fairly with the people it investigates.

...

 

[21] He also cites Seck for the proposition that the PSC cannot discipline public servants under s. 69 of the PSEA but that it can investigate matters and pass relevant information to the respondent, which can then choose to initiative disciplinary action:

...

[49] The employers of public servants are responsible for the disciplinary action taken against them, and disciplinary action is governed by the Public Service Labour Relations Act. The Commission therefore may not take disciplinary action under section 69 of the Act. At most, it may, as it did in the appellant’s case, pass on to the employer any relevant information collected in the course of its investigation. It will be up to the employer to take disciplinary action, if it sees fit to do so. The Commission’s role and mandate have to do with the integrity of the appointment process in the public service rather than disciplining delinquent employees.

...

 

[22] Counsel also relies upon Seck for his submission that the PSC cannot take disciplinary action but that it may take corrective action, which he then concedes cannot be grieved:

...

[52] Similarly, the corrective action contemplated in section 69 does not include imposing criminal penalties on wrong-doing employees. That falls instead to the courts of law acting under section 133 of the Act. However, nothing prevents the Commission from disclosing the conclusions of its investigation to police authorities so that they may decide whether they should conduct their own investigation and, if appropriate, lay charges under section 133, having regard to the Canada Evidence Act, R.S.C. 1985, c. C-5; section 13 of the Canadian Charter of Rights and Freedoms; and the criminal law burden of proof of beyond a reasonable doubt.

...

 

[23] And finally, counsel submits that the PSEA contains a finite list of authorities as to when a termination may occur, namely, under ss. 62, 63, 119, and 128 as related to probationary employees, resignation, political activity, or when a public-office holder ceases to hold office.

[24] Counsel submits that none of these circumstances arose in the matter before me, which deprived the PSC of authority to revoke the appointment and dismiss the grievor. Thus, this leaves the matter necessarily as a disciplinary action by the respondent fitting within s. 209(1)(b) of the FPSLRA and the Board’s jurisdiction.

III. The respondent’s motion to dismiss

[25] Counsel for the respondent submitted the following.

[26] Mr. Dayfallah referred a grievance to adjudication pursuant to s. 209(1)(b) of the FPSLRA, claiming that he was subject to disciplinary action resulting in termination.

[27] The Board does not have jurisdiction to entertain this grievance as the grievor ceased to be employed in the federal public service by the operation of s. 69 of the PSEA and not as a result of disciplinary action. In fact, the PSC conducted an investigation and determined that he committed fraud during an appointment process with the respondent, Transport Canada.

[28] The PSC revoked his appointment pursuant to its authority under the PSEA and ordered the respondent to implement the revocation. The respondent was not involved in the revocation process under the PSEA. It accepted the PSC’s conclusion but was not part of the decision-making process. The cessation of the grievor’s employment was not the result of an exercise of discretion by the respondent and, a fortiori, was not a disciplinary action. Therefore, this matter should be dismissed for lack of jurisdiction.

[29] The Board does not have jurisdiction over this grievance. Section 209(1)(b) of the FPSLRA gives it jurisdiction to hear a grievance relating to a disciplinary action resulting in a termination, demotion, suspension, or financial penalty. The grievor ceased to be employed in the public service as a result of the revocation of his appointment by the PSC pursuant to s. 69 of the PSEA, which is not grievable.

[30] As a result of its investigation, the PSC concluded that the grievor committed fraud and ordered his appointment revoked. Again, Transport Canada was not involved in the determination that fraud occurred.

[31] In fact, the grievor filed an application for the judicial review of the PSC’s decision. The Federal Court dismissed the application and found that the PSC’s decision was procedurally fair and reasonable. The Court also confirmed that the action that the PSC took under s. 69 of the PSEA was not disciplinary and that it could not be grieved under the FPSLRA. The Court stated as follows: “I accept the Respondent’s submission that revocation of an appointment is not about disciplining or punishing an appointee, but rather aims to reinforce the integrity of the appointment process.” (See Dayfallah v. Canada (Attorney General), 2018 FC 1120; “Dayfallah”.)

[32] After the PSC made its decision to revoke the grievor’s appointment, the respondent was ordered to implement it. The respondent did not have any discretion over the cessation of the employment and conveyed the revocation decision to the grievor by letter dated January 15, 2018.

[33] Based upon the conclusion of its investigation, the PSC ordered Transport Canada to revoke the grievor’s appointment. The respondent had to follow the PSC’s order issued through its authority under s. 69 of the PSEA.

[34] The only action that the respondent took was to advise the grievor that by direct order of the PSC, his appointment was revoked and that he ceased to be employed in the public service. The respondent did not have any discretion with respect to following the PSC’s order. In other words, the action that led to the cessation of the grievor’s employment did not originate with the respondent.

IV. Analysis

[35] Counsel for the respondent notes that the question of the authority to revoke an appointment that arose from a fraud committed against an appointment process is well canvassed.

[36] The grievor need only look to the outcome of his challenge to the PSC’s actions as the Federal Court’s decision cites Federal Court of Appeal authority for the ability to revoke his appointment.

[37] In Seck (noted with approval in Dayfallah, at para. 107), the Federal Court of Appeal explicitly noted the result of this revocation, which was the loss of his employment as set out below:

...

[48] In cases of fraud in the appointment process, the Commission may (a) “revoke the appointment or not make the appointment”, or (b) “take any corrective action that it considers appropriate”. These are administrative measures intended to ensure the integrity of the appointment process in the federal public service, not disciplinary measures per se. This distinction is important, both for the purpose of delimiting the action that the Commission may take under the section in issue and for the purpose of defining the Commission’s duty to deal fairly with the people it investigates.

[49] The employers of public servants are responsible for the disciplinary action taken against them, and disciplinary action is governed by the Public Service Labour Relations Act. The Commission therefore may not take disciplinary action under section 69 of the Act. At most, it may, as it did in the appellant’s case, pass on to the employer any relevant information collected in the course of its investigation. It will be up to the employer to take disciplinary action, if it sees fit to do so. The Commission’s role and mandate have to do with the integrity of the appointment process in the public service rather than disciplining delinquent employees.

[50] When the Commission revokes an appointment under section 69, it is not taking disciplinary action, as such an appointment is void ab initio. This is not a dismissal or a lay-off that may be grieved. Nor are the other corrective measures that the Commission may take subject to grievance.

[51] If the Commission cannot take disciplinary action under section 69, the corrective action that it takes under that section cannot be grieved under the Public Service Labour Relations Act. The appropriate remedy is, rather, an application for judicial review before the Federal Court. Thus, labour law principles, such as proportionality and progressive discipline, do not apply to corrective action under section 69. Such corrective action must instead be reviewed using the principles of administrative law, that is, it must be within the jurisdiction of the Commission and be reasonable.

...

[Emphasis added]

 

[38] The grievor’s reliance on the passages from paragraphs 48 and 49 of Seck fails to take into account the context of that case. In Seck, the employee had never been appointed to the position. The PSC conducted its investigation while the appointment process was ongoing and concluded that she had committed a fraud within the meaning of s. 69 of the PSEA. Having not been appointed yet, revoking an appointment was not an option for the PSC as a corrective measure.

[39] Counsel for the grievor submits that the PSC does not have legislative authority to both revoke an appointment and dismiss a member of the public service from employment.

[40] This argument does not survive a plain reading of the Federal Court of Appeal’s examination of this exact question, as follows:

...

[50] When the Commission revokes an appointment under section 69, it is not taking disciplinary action, as such an appointment is void ab initio. This is not a dismissal or a lay-off that may be grieved. Nor are the other corrective measures that the Commission may take subject to grievance.

...

[Emphasis added]

 

[41] The PSC undoubtedly has the right to revoke an appointment. But does the revocation constitute a “termination” under the FPSLRA, as the grievor alleges?

[42] This is relevant because pursuant to s. 209(1)(b), in the present context, only a grievance related to “a disciplinary action resulting in termination, demotion, suspension or financial penalty” can be referred to the Board for adjudication.

[43] If the grievor’s appointment is void ab initio (meaning “from the start”), he is considered, as a function of law, to have never been appointed to the position. If he was never appointed, he did not occupy a position from which he could be terminated from. As such, given the grievor could not be terminated, there was no termination within the meaning of the s. 209(1)(b) of the FPSLRA.

[44] For all the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[45] The grievance is dismissed for want of jurisdiction.

September 29, 2021.

Bryan R. Gray,

a panel of the Federal Public Sector Labour Relations and Employment Board