FPSLREB Decisions
Decision Information
The complainant occupied a procurement manager position – over the years, she had regularly acted for periods of less than four months in a senior procurement officer position – she began another acting appointment of less than four months but went on leave due to a work-related injury – when she returned to work before the end of the acting period, her supervisor told her that she was to return to her substantive position – the complainant made a complaint under s. 74 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA), alleging that the acting appointment was revoked due to discrimination based on disability – the respondent made a motion to dismiss the complaint on the grounds that no revocation occurred because no appointment as contemplated by the PSEA was made – the complainant argued that the primacy of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA) overrides the exclusion of acting appointments of less than four months under the Public Service Employment Regulations (SOR/2005-334; PSER) – she was denied the opportunity to complete the acting appointment based on disability, which was contrary to ss. 3 and 7 of the CHRA – the Board found that it cannot act outside the jurisdiction it is given by statute – Parliament granted the Board the authority to apply and interpret the CHRA under the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA), when it is seized with a grievance, or under ss. 65(7) and 80 of the PSEA, when it is seized with a complaint under ss. 65 or 77 – according to the complainant, the Board’s decision in Haynes v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 85, establishes its jurisdiction over complaints involving acting appointments of less than four months when discrimination is the basis for the complaint, and accordingly, the Board can consider terms and conditions of employment – the Board found that it has jurisdiction to consider terms and conditions of employment under the FPSLRA but not under the PSEA – the Board found that s. 14(1) of the PSER excludes acting appointments of less than four months from the application of s. 30 of the PSEA, which confirms that no appointment as contemplated by the PSEA occurred that could have been revoked – another condition for a revocation is that an investigation must take place before an appointment can be revoked – no such investigation occurred in this case – the motion to dismiss the complaint was allowed.
Complaint dismissed.
Decision Content
Date: 20230314
File: 771-02-45429
Citation: 2023 FPSLREB 25
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Between
Gina Mar
Complainant
and
Deputy Head
(Department of National Defence)
Indexed as
Mar v. Deputy Head (Department of National Defence)
Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Chris Finding, Professional Institute of the Public Service of Canada
For the Respondent: Barbara Williams and Lisa Bambrick
For the Public Service Commission: Alain Jutras
REASONS FOR DECISION
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I. Complaint before the Board
[1] According to the facts on file, Gina Mar (“the complainant”) occupies a procurement manager (classified PG-03) position with the Department of National Defence (“the respondent”) at the Canadian Forces Base (CFB) Esquimalt. Over seven years, she regularly acted for periods of less than four months in a senior procurement officer position (classified PG-04). On May 2, 2022, she began another acting period of less than four months that was originally scheduled to end on August 31, 2022. She was told that she would rotate in the position with a co-worker (four months on, and four months off) until it was permanently filled via an appointment process.
[2] During the acting period, the complainant left the workplace on leave due to a work-related injury (violence in the workplace). When she returned to work on August 3, 2022, her supervisor told that her she was returning to her substantive (PG-03) position.
[3] On August 18, 2022, the complainant made a complaint under s. 74 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “PSEA”) with the Federal Public Sector Labour Relations and Employment Board (“the Board”). She alleged that her appointment was revoked either because she filed a “Notice of Occurrence” or due to discrimination based on her disability.
[4] On September 11, 2022, pursuant to s. 20(1) of the Public Service Staffing Complaints Regulations (SOR/2006-6), the complainant filed a “Notice to the Canadian Human Rights Commission”, repeating the same discrimination allegation.
II. Motion to dismiss the complaint
[5] On September 13, 2022, the respondent made a motion to dismiss the complaint on the grounds that no appointment was revoked.
[6] According to the respondent, no revocation could have occurred because no appointment was made. Pursuant to s. 14 of the Public Service Employment Regulations (SOR/2005-334; “PSER”), an acting appointment of less than four months is excluded from the application of s. 77 of the PSEA and does not constitute an appointment within the meaning of the PSEA.
[7] Moreover, the respondent’s action of ending the complainant’s acting appointment did not correspond to a revocation under the PSEA, which requires an investigation to determine if a person was improperly appointed. There was no investigation.
[8] The respondent submitted that since there was no revocation, there was no right to complain to the Board.
[9] On September 16, 2022, the complainant responded to the motion to dismiss.
[10] She argued that she had been denied the opportunity to complete her acting assignment and the possibility of further acting assignments because of a perceived disability, which was contrary to the no-discrimination clause in her collective agreement and contrary to ss. 3 and 7 of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; “CHRA”).
[11] According to the complainant, the motion to dismiss focuses too narrowly on the exclusion of an acting appointment of less than four months and misinterprets the Board’s jurisdiction to consider the merits of the complaint. Under s. 80 of the PSEA, the Board has jurisdiction to hear discrimination matters under the CHRA.
[12] The complainant submits the following:
...
The primacy of human rights law in Canada means that the FPSLREB’s jurisdiction to consider complaints based on discrimination overrides the exclusion set out in Section 14 of PSER. In addition, the FPSLREB [sic] decision Haynes [Haynes v. Treasury Board (Canada Border Services Agency), 2013 PSLRB 85] establishes its jurisdiction on complaints involving acting positions of less than four months where discrimination is the basis for the complaint.
...
[13] Also on September 16, 2022, the Public Service Commission (PSC), which is always a party to staffing complaints, responded to the motion to dismiss. It stated that based on the information available, no appointment was investigated, which is required for a revocation. Consequently, no revocation was made, and the complainant could not make a complaint to the Board under s. 74.
[14] On September 28, 2022, the Board offered the parties a further opportunity to expand their legal arguments. They all made more submissions.
III. Issues
[15] The issues that the parties raised in their submissions can be formulated as follows: 1) whether the primacy of human rights law overrides the exclusion of acting appointments of less than four months under the PSER, 2) whether the Haynes decision applies in this case, and 3) whether a revocation occurred.
IV. Additional arguments
A. Whether the primacy of human rights law overrides the exclusion of an acting appointments of less than four months under the PSER
1. For the respondent
[16] According to the respondent, a complaint cannot be heard solely on the basis of an allegation of a human rights violation. Had Parliament intended the Board to have jurisdiction over human rights, it would have stated so clearly. Rather, the Board can apply and interpret the CHRA when it hears grievances under the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “FPSLRA”) or complaints under ss. 65 (lay-off) or 77 (appointment process) of the PSEA. Since Parliament has specified the Board’s jurisdiction, it cannot be extended.
2. For the complainant
[17] The complainant argues that a revocation occurred under the delegated authority set out in ss. 15(1) and 67(1) and (2) of the PSEA. However, she concedes that given the Board’s specific jurisdiction to apply the CHRA to a grievance under the FPSLRA and to a complaint under s 77 of the PSEA, there is no jurisdiction for the Board to apply human rights law to a revocation complaint under s. 74.
3. For the PSC
[18] The PSC agrees with the respondent that there is no authority under the PSEA for the Board to apply and interpret the CHRA in the context of a complaint under s. 74 and no authority under any other statute.
B. Whether the Haynes decision applies in this case
1. For the complainant
[19] The complainant did not present a further argument on this issue.
2. For the respondent
[20] The Haynes decision does not give the Board jurisdiction to apply the CHRA to a complaint under s. 74 of the PSEA. Rather, it stands for the proposition that the Board can hear a grievance under the FPSLRA that involves the no-discrimination clause in the relevant collective agreement, even if the grievance’s subject matter deals with a staffing issue.
[21] Consequently, according to the respondent, the proper recourse for the complainant would be either a grievance or a complaint to the Canadian Human Rights Commission.
3. For the PSC
[22] The PSC agrees with the respondent that Haynes was decided in the context of labour relations under the FPSLRA and not in the context of a staffing complaint under the PSEA. It cannot serve to give the Board jurisdiction.
C. Whether a revocation occurred
1. For the PSC
[23] The PSC repeated its position that no revocation occurred, thus depriving the Board of its jurisdiction in this matter.
2. For the complainant and the respondent
[24] The complainant and the respondent did not submit any further arguments on whether a revocation occurred.
V. Analysis
[25] It is trite law that an administrative tribunal can act only within the limits of its enabling statute. When deciding a matter under the PSEA, the Board is limited by the terms of that statute.
A. Whether the primacy of human rights law overrides the exclusion of acting appointments of less than four months under the PSER
[26] As the respondent stated, Parliament has granted the Board the authority to apply and interpret the CHRA in limited circumstances, which are under the FPSLRA, when it is seized with a grievance, or under s. 65(7) and 80 the PSEA, when it is seized with a complaint under ss. 65 or 77. This does not deprive the complainant of a remedy. It means that the remedy must be sought elsewhere. The issue is not the primacy of human rights; rather, it is the forum in which to claim those rights.
[27] Again, the Board cannot act outside the jurisdiction it has been given by statute.
B. Whether the Haynes decision applies in this case
[28] In her initial response to the motion to dismiss her complaint, the complainant stated that the Board could consider terms and conditions of employment, and therefore, the discrimination aspect. The Board does have jurisdiction to consider terms and conditions of employment, but not under the PSEA. Employees can, under s. 208 of the FPSLRA, grieve any occurrence or matter affecting their terms and conditions of employment. The matter may, if certain conditions are met, be referred to adjudication before the Board.
[29] The Haynes decision, which the complainant relied upon, illustrates this well. The Board took jurisdiction over a grievance that was related to staffing matters because it was a grievance filed under the relevant collective agreement that related to a specific clause of that agreement, the no-discrimination clause.
[30] In this case, the complainant made a complaint under the PSEA. The Board’s jurisdiction under that statute is not the same and is limited by its terms.
C. Whether a revocation occurred
[31] The complainant contests the revocation of her acting appointment.
[32] The respondent argues that the Board has no jurisdiction because no revocation occurred, and therefore, no complaint could have been made under s. 74 of the PSEA.
[33] Section 74 of the PSEA reads as follows:
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[34] As stated in Pugh v. Deputy Minister of Environment Canada, 2007 PSST 3, and in Comeau v. Deputy Head of Service Canada, 2007 PSST 47, the right to complain provided in s. 74 is conditional on a prior appointment and on that appointment being subsequently revoked.
[35] In this case, there was no appointment as defined by the PSEA.
[36] Section 14(1) of the PSER reads as follows:
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[37] The exclusion of acting appointments of four months and a day from the application of s. 30 confirms the respondent’s viewpoint that no appointment occurred than could have been revoked. Section 30 of the PSEA provides in part as follows:
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[38] An appointment must be made on the basis of merit pursuant to s. 30(1) of the PSEA. Given that acting appointments of four months less a day are excluded from that requirement pursuant to s. 14 of the PSER, it means that they cannot be considered appointments as contemplated by the PSEA. Consequently, they cannot be revoked.
[39] Sections 67(1), 15(3), and 67(2) of the PSEA, referred to as the possible revocation actions under s. 74, are all based on a revocation being made after an appointment or proposed appointment is made. Since acting appointments of four months less a day are not appointments as intended by the PSEA (with the application of merit criteria), they do not apply to this situation.
[40] Another condition for a revocation is that an investigation must take place before an appointment can be revoked. No such investigation occurred in this case (again, because no appointment as contemplated by the PSEA was made).
D. Conclusion
[41] The Board does not have jurisdiction under s. 74 of PSEA because no appointment was revoked. Consequently, it cannot hear the matter. Moreover, even if there had been a revocation, the Board would still not have jurisdiction to interpret and apply the CHRA to this complaint since its CHRA jurisdiction is limited under the PSEA to complaints made under ss. 65 or 77.
[42] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VI. Order
[43] The motion to dismiss the complaint is allowed.
[44] The complaint is dismissed for lack of jurisdiction.
Marie-Claire Perrault,
a panel of the Federal Public Sector
Labour Relations and Employment Board