Date: 20220323

File: 771-02-43739

 

Citation: 2022 FPSLREB 18

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

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

Between

 

Terry Omer

Complainant

 

and

 

DEPUTY HEAD

(Office of the Chief Electoral Officer)

 

Respondent

and

OTHER PARTIES

Indexed as

Omer v. Deputy Head (Office of the Chief Electoral Officer)

In the matter of a complaint of unreasonable revocation - section 74 of the Public Service Employment Act

Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Himself

For the Respondent: Caroline Laurin

For the Public Service Commission: Louise Bard

Decided on the basis of written submissions,
filed January 26 and February 1 and 7, 2022.

REASONS FOR DECISION

I. Complaint before the Board

[1] On November 10, 2021, Terry Omer (“the complainant”) made a complaint with the Federal Public Sector Labour Relations and Employment Board (“the Board”) against the Deputy Head of the Office of the Chief Electoral Officer (“the respondent” or “Elections Canada”). The subject of his complaint was a revocation of appointment under s. 74 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA).

[2] On January 26, 2022, the respondent made a motion with the Board to dismiss the complaint, arguing that s. 74 of the PSEA does not apply since no appointment was made within the meaning of the PSEA.

[3] The Public Service Commission (PSC), which is a party to all staffing complaints before the Board, submitted that s. 74 does not apply, since its conditions have not been met.

[4] For the reasons that follow, the motion to dismiss the complaint is allowed, and the complaint is dismissed.

II. Background

[5] The complainant worked as an election officer for the respondent during the last federal election, in September 2021. The official polling day was September 20, 2021, but the electoral process started before then, with voter registration and advance polling. From the complainant’s submissions, which the respondent did not contest, it seems that he worked for Elections Canada starting in late August 2021 and for several days in September, including at advance polling stations from September 10 to 13, 2021.

[6] The complainant was appointed as an election officer by Martine Bélanger, the returning officer for his riding, Brossard-Saint-Lambert, by a series of appointments covering the dates noted earlier in this decision. There is also an appointment document for September 20, 2021, the polling day, but Ms. Bélanger cancelled it.

[7] It seems that in the course of his exchanges with some members of Elections Canada’s staff, the relationship between the complainant and some staff members became more and more conflictual. On September 16, 2021, Ms. Bélanger informed him that his services were no longer required.

[8] In addition to making this complaint, the complainant also grieved what he termed was a termination, alleging racial and ethnic discrimination. His grievance is the subject of a separate decision.

III. Summary of the arguments on the motion to dismiss the complaint

A. For the respondent

[9] The respondent submitted that the Board has no jurisdiction since no appointment or revocation of appointment was made under the PSEA. The following extract from its submissions reflects its reasoning:

…

This complaint pertains to an appointment made pursuant to section 22 of the Canada Elections Act, SC 2000, c 9 (CEA). The complainant was hired to work at the polling site of Brossard — Saint-Lambert on September 10, 11, 12, 13 and 20, 2021 (see Appendix A). Poll workers appointed under the CEA are not employees of the public service or employees of Elections Canada. They are hired and managed by the Returning Officer in the electoral district where they will work and their appointments can be terminated at the discretion of the Returning Officer. Poll workers under the CEA are paid pursuant to the Federal Election Fees Tariff (SOR/2021-22). They hold office for a limited time period during an election and their appointments are governed by the CEA.

Section 74 of the PSEA states that “A person whose appointment is revoked by the Commission under subsection 67(1) or by the deputy head under subsection 15(3) or 67(2) may, in the manner and within the period provided by the Board’s regulations, make a complaint to the Board that the revocation was unreasonable.”

In Pugh [2007] PSST 0003 and Comeau [2007] PSST 0047, the former Tribunal indicated that in order to have jurisdiction to hear the complaint, it must be shown that first, an appointment was made pursuant to the PSEA and secondly, that the appointment was subsequently revoked.

In this case, since no appointment was made pursuant to the PSEA and no investigation was conducted under subsections 67(1), 67(2) or 15(3), there can be no revocation of appointment pursuant to section 74.

…

 

B. For the complainant

[10] The complainant argues that he has worked for Elections Canada since 2011 and that his employment is more than casual. Moreover, if there is no recourse before the Board, then he is left without a remedy to an unjust situation.

C. For the Public Service Commission

[11] To make a complaint under s. 74 of the PSEA, a revocation of appointment must have taken place under s. 67(1), 67(2), or 15(3). Nothing in the documentation submitted suggests that such a revocation took place. Consequently, the complainant has no recourse before this Board under s. 74 of the PSEA.

IV. Analysis

[12] The Canada Elections Act (S.C. 2000, c. 9) provides as follows on the appointment of election officers:

32 (1) Subject to subsections (2) and (3) and 33(2) and (3), a returning officer shall, after the issue of the writ, appoint in accordance with the Chief Electoral Officer’s instructions the election officers that the returning officer considers necessary for exercising election officers’ powers and performing election officers’ duties under this Act in the returning officer’s electoral district.

(2) A returning officer may, in accordance with the Chief Electoral Officer’s instructions, appoint election officers before the issue of the writ if the returning officer considers that it is desirable to do so for the purpose of training and preparing them to exercise their powers and perform their duties under this Act after the issue of the writ.

…

 

[13] The complainant produced documents that according to him, show that he was appointed. They are solemn declarations that a temporary worker must sign to certify that he or she is qualified to work as an election official. The document also includes a section titled “Appointment” (Nomination in French), which states that the returning officer is appointing the person for the days stated on the declaration. The documents were produced for the following dates: September 10 to 13, 2021, and September 20, 2021.

[14] This was not an appointment within the meaning of the PSEA, since it is not an appointment made by the Public Service Commission or by the deputy head through delegated authority. Rather, it is an appointment under the Canada Elections Act made by the electoral district’s returning officer. Consequently, s. 74 of the PSEA cannot apply.

[15] Section 74 of the PSEA, under which this complaint was made, reads in part as follows:

74 A person whose appointment is revoked by the Commission under subsection 67(1) or by the deputy head under subsection 15(3) or 67(2) may, in the manner and within the period provided by the Board’s regulations, make a complaint to the Board...

 

[16] As the PSC points out, none of the conditions to apply s. 74 are met in this case. Section 15(3) reads as follows:

15 (3) Where the Commission authorizes a deputy head to make appointments pursuant to an internal appointment process, the authorization must include the power to revoke those appointments and to take corrective action whenever the deputy head, after investigation, is satisfied that an error, an omission or improper conduct affected the selection of a person for appointment.

 

[17] Subsections 67(1) and (2) deal with the investigation that might result in a revocation. An investigation also follows an internal appointment process and an appointment by the Public Service Commission or the deputy head.

[18] The appointment that the returning officer made for the days preceding the election and the day of the election was not made following an internal appointment process. It was an appointment made pursuant to s. 32 of the Canada Elections Act. Consequently, s. 74 cannot apply.

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

(The Order appears on the next page)

V. Order

[20] The respondent’s motion to dismiss is allowed.

[21] The complaint is dismissed.

March 23, 2022.

Marie-Claire Perrault,

a panel of the Federal Public Sector

Labour Relations and Employment Board