Date: 20010601
Docket: T-982-00
Neutral citation: 2001 FCT 577
BETWEEN:
SUKHWINDER SINGH
Applicant
- and -
ATTORNEY GENERAL OF CANADA
(PUBLIC WORKS AND GOVERNMENT SERVICES CANADA)
Respondent
[1] This application is for judicial review of a decision, dated May 4, 2000, of adjudicator Joseph W. Potter, Deputy Chairperson of the Public Service Staff Relations Board ("the adjudicator") following a reference of a grievance launched by the applicant under subparagraph 92(1)(b)(ii) of the Public Service Staff Relations Act[1], ("the PSSRA").
1. Facts
[2] The applicant began her career in the Federal Public Service in 1991 with the office of the Superintendent of Financial Institutions. On April 1, 1998, she was offered a position with the Aerospace, Marine and Electronic Systems Sector ("AMES") within the Public Works and Government Services Canada ("PWGSC"). She had been seconded to AMES on a part-time basis since December 15, 1997. When the applicant had arrived at AMES, she was told that all employees on the floor had a "secret" clearance and that she should apply for one. She already possessed an "enhanced reliability" clearance, which is one level below "secret". On that day, she filled out a screening request seeking a "secret" security clearance.
[3] In order to appoint the applicant to the PG-03 position, it was necessary for PWGSC to lower the security requirements from "secret" to "enhanced reliability", as the results of the screening had not come through. Nowhere in her letter of offer is there any mention of the security requirements of the position. The Canadian Security Intelligence Service ("CSIS") reviewed her request and recommended to the Deputy Minister that her request be denied. The latter accepted the recommendation and informed her that she was being denied a "secret" security clearance and advised that she could appeal to the Security Intelligence Review Committee ("SIRC"), which she did.
[4] However, on October 18, 1999, her employer PWGSC reclassified the applicant's position back to its original "secret" security level and terminated the applicant's employment on the ground of the applicant's incapacity pursuant to subsection 11(2)(g) of the Financial Administration Act[2] ("the FAA").
[5] She then filed a grievance which was rejected by the adjudicator.
2. The Adjudicator's Decision
[6] First, the adjudicator denied the applicant's request to delay the issuance of his decision until a final decision was rendered by SIRC on the ground that, in any event, the Deputy Minister has the final authority to grant or deny a security clearance. He noted that the requirements of the position the applicant was offered included a "secret" security clearance. Since she was denied that "secret" security clearance, she did not meet one of the requirements for the position. Thus, her employer was well within its rights to deny her continuity of employment in that position. In the adjudicator's view, it would be inappropriate for him to reinstate her into the position. Consequently, he found that the employer was entitled to take the action it did and that he, in his capacity as adjudicator, had "no authority to overturn this action, nor do I have jurisdiction to reinstate her elsewhere in the Department. For this reason, the grievance must be denied". But, he added as follows:
[93] However, in my view, this is a situation that begs for review. The undisputed evidence indicated Ms. Singh was a good performer and there were no difficulties with any aspect of her work whatsoever. In fact, the opposite is true. She was sought after because of her expertise and experience in working with the individuals in AMES. They approached her to make the change, not the other way around.
[94] I believe that, if the Department had left Ms. Singh in her original position pending disposition of the security clearance, there would be no basis to terminate her employment once the secret security clearance had been denied. The reason for this is because she met all the conditions of her original position. The Department would simply have denied her the promotion.
[95] Therefore, it was only because the Department needed to expedite matters to resolve a staffing shortage issue that the situation of termination presented itself.
[96] One of the options open to the Department was to find alternate employment within the Department. Mr. Kereliuk testified he restricted his search for alternate employment to within the Branch. This, effectively, eliminated most positions from consideration, as virtually all Branch positions needed a secret security clearance.
[97] On the basis of the facts presented to me, it is my view that this is a situation where it is simply unfair not to review all positions within the Department, which correspond to Ms. Singh's area of expertise to determine if she could be placed elsewhere. As I stated above, I have no jurisdiction to order such placement, but fairness and equity here should lead the Department to offer such a review.
(my emphasis)
3. Analysis
[7] I wholeheartedly agree with the adjudicator that this is a situation that begs for review. Clearly, under the circumstances, it was simply unfair on the part of the employer not to review all positions within the Department so as to make an honest effort to replace the applicant in a position similar to the one she occupied before the employer offered her another employment that she could not secure. By restricting its search for alternate employment within a branch where "secret" security clearance was essential, the employer's canvass for an alternate position was merely a perfunctory exercise.
[8] Consequently, the decision under judicial review is whether the adjudicator had the necessary jurisdiction to order the employer to produce an alternate employment for the applicant, or at least to make an exhaustive search for one. To every wrong there must be a remedy.
4. Law and jurisprudence
[9] Subparagraph 92(1)(b)(ii) of the PSSRA reads as follows:
92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
...
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
...
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
[10] And paragraph 11(2)(g) of FAA reads as follows:
11. (2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10,
...
(g) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, for reasons other then breaches of discipline or misconduct, of persons employed in the public service, and establishing the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;
[11] Thus, adjudicators have jurisdiction to hear grievances concerning the termination of employment under paragraph 11(2)(g) of the FAA which are referred to adjudication pursuant to subparagraph 92(1)(b)(ii) of the PSSRA. The standard of review applicable to an arbitral award concerning the termination of an employee is that of a "patently unreasonable" decision[3]. The patently unreasonable test sets a high standard of review[4]. My colleague Muldoon J., in the McCormick v. Canada (Treasury Board)[5], stated that "issues relating to the termination of an employee's employment fall within the very heartland of the adjudicator's jurisdiction. Thus, considerable curial deference applies".
[12] The respondent submits that the adjudicator was not patently unreasonable but was in fact correct in concluding that the respondent was entitled to terminate the applicant's employment by reason of incapacity. It is uncontested that the Deputy Minister has the authority to establish the security level of the position and that the position occupied by the applicant required a "secret" security clearance which the applicant has not obtained.
[13] As to the reinstatement to another position, within the Public Service, the adjudicator found that he had no jurisdiction to order the respondent to place the applicant into a different position. The standard of review with reference to jurisdiction is merely "correctness" and I cannot find that he was not correct in his interpretation of the law and the jurisprudence in the matter with reference to ordering the respondent to appoint the applicant to a position[6]. An adjudicator of the Public Service Staff Relations Board can only exercise those powers granted under the PSSRA. The power to make appointments with the Public Service can only be exercised under section 8 of the Public Service Employment Act ("PSEA") which provides as follows:
8. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament.
[14] This matter was thoroughly canvassed in the Carty[7] decision where the Public Service Staff Relations Board wrote as follows:
It is true that the Public Service Commission, by virtue of section 8 of the Public Service Employment Act, is given the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament...Section 6 of the Public Service Employment Act empowers the Commission to delegate its authority to a deputy head, reserving to the Commission the right to revoke an appointment or direct that it not be made. Furthermore, subsection 6(5) of the Act gives the deputy head power to redelegate this authority to persons under his jurisdiction. Accordingly, an appointment may be made by the Commission or by the deputy head under delegated authority or by a person under the jurisdiction of the deputy head under re-delegated authority.
(my emphasis)
[15] That position was confirmed by the Supreme Court of Canada in Canada (A.G.) v. PSAC[8] wherein Mr. Justice Sopinka wrote very succinctly:
In short, the situation is aptly summed up by Marceau J.A. speaking for the majority of the Court of appeal when he states:
There is quite simply no place in this legal structure for a public servant (that is, an employee of Her Majesty, a member of the Public Service) without a position created by the Treasury Board and without an appointment made by the Public Service Commission.
[16] Consequently, I must find that the adjudicator could not order that the applicant be appointed to an alternate position. However, that is not to say that he had no jurisdiction to find that the employer could not limit its search for alternate employment to a branch where such a position could not possibly be available to the applicant because of the mandatory "secret" security clearance. In fact, the adjudicator opened the door himself in the last phrase of his judgment: "As I stated above, I have no jurisdiction to order such placement, but fairness and equity here should lead the Department to offer such a review".
[17] Such a position is also endorsed by Treasury Board in its own Treasury Board Manual on Personnel Security as follows under the heading of Revocation:
5. Revocation
In the event of a revocation, individuals must be informed of their rights of review or redress and prohibited from access to sensitive information and assets.
If the individual concerned is an employee, consideration must be given to reassignment or appointment to a less sensitive position to an equivalent level. Should no such position be available, appointment to a position at a lower level must be considered. Termination of employment may be considered only in exceptional circumstances and only when all other options have been exhausted.
(my emphasis)
[18] A similar practice is followed in the private sector labour jurisprudence where upon the non-culpable incapacitation of an employee, efforts are made to transfer the affected employee to another position. The latter may be allowed to exercise his seniority rights on another job for which he is capable of performing. This practice attempts to balance an employer's objective in maintaining productivity with an employee's interest in preserving his employment[9].
[19] In my view, subparagraph 92(1)(b)(ii) of the PSSRA in conjunction with paragraph 11(2)(g) of the FAA affords an adjudicator the jurisdiction to inquire as to whether the Treasury Board searched diligently for alternate positions. Termination of employment should be the option of last resort. Clearly, upon revocation of a security clearance, serious effort must be deployed by the respondent to re-assign or appoint the employee to an alternate position at the same level within the Department.
5. Disposition
[20] The application is granted, the decision of the adjudicator is set aside and the matter is remitted back to him or to another adjudicator of the Board to act in accordance with these reasons.
OTTAWA, Ontario
June 1, 2001
Judge
[1] R.S.C. 1985, c. P-35, as amended.
[2] R.S.C. 1985, c. F-11, as amended.
[3] Barry v. Treasury Board (1997), 221 N.R. 237 (F.C.A.); McCormick v. Attorney General of Canada (1998), 161 F.T.R. 82 (F.C.T.D.); Pushpanathan v. Canada (Minister of Citizenship and Immigration, [1998] 1 S.C.R. 982 and Attorney General of Canada v. Cleary (1998), 161 F.T.R. 238 (F.C.T.D.).
[4] Attorney General of Canada v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963-64.
[5] supra, at 3.
[6] Canada (Treasury Board) v. Carty, [1976] C.P.S.S.R.B. No. 13; Marinos v. Canada (Treasury Board), [1998] F.C.J. No. 1601 and Canada (A.G.) v. PSAC, [1991] 1 S.C.R. 614.
[7] ibid.
[8] supra, no. 6.
[9] United Brewery Workers, Local 173, And Koch Transport Ltd. (1970), 21 L.A.C. 439 (Brown); Penticton & District Retirement Service and Hospital Employees' Union, Local 180 (1978), 18 L.A.C. (2d) 107 (MacIntyre); Royal Inland Hospital and Registered Nurses' Association of British Columbia (1979), 25 L.A.C. (2d) 11 (MacIntyre); Paquette and the Senate, [1993] CPSSRB No. 38; DeHavilland Aircraft of Canada Ltd and U.A.W. (1964), 15 L.A.C. 284 (Laskin) and Shell Canada Ltd. and Oil, Chemical & Atomic Workers, Local 9-600 (1973), 3 L.A.C. (2d) 229 (Bellan).