Burchill

Parties/Partis: Burchill, James Francis v. The Attorney General of Canada

Court # Cour: A-592-79

Judgment/Jugement Date: 1980-05-20

THURLOW, C.J.:

We do not need to hear you, Mr. Nisbet.

The question dealt with by the Adjudicator was whether he had jurisdiction to consider the applicant's grievance. He dealt with the matter by considering the applicant's assertion that his being laid off was disciplinary action resulting in discharge within the meaning of subsection 91(1) of the Public Service Staff Relations Act, R.S.C 1970, c. P-35, and, after a hearing that lasted some six days, concluded that the action was not disciplinary.

As presented, the applicant's grievance asserted only the contention that his acceptance of a term position at the Anti-Inflation Board did not affect his indeterminate employee status, that he was therefore entitled to the special provisions made by the Treasury Board for indeterminate employees and that termination of his employment at the Anti-Inflation Board without such rights provided by the Treasury Board for the protection of indeterminate employees therefore constituted wrongful dismissal. He asked for application of his alleged rights.

The only question thus submitted for determination in the grievance procedure was whether the applicant still had indeterminate status or tenure notwithstanding his acceptance of a term position. That question was determinable at the grievance level but was not referable to adjudication under subsection 91(1).

In our view, it was not open to the applicant, after losing at the final level of the grievance procedure the only grievance presented, either to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance complaining of disciplinary action leading to discharge within the meaning of subsection 91(1). Under that provision it is only a grievance that has been presented and dealt with under section 90 and that falls within the limits of paragraph 91(1)(a) or (b) that may be referred to adjudication. In our view the applicant having failed to set out in his grievance the complaint upon which he sought to rely before the Adjudicator, namely, that his being laid off was really a camouflaged disciplinary action, the foundation for clothing the Adjudicator with jurisdiction under sub-section 91(1) was not laid. Consequently, he had no such jurisdiction.

We add, however, that we have not been persuaded, as the learned Adjudicator was not persuaded, that the action of the Anti-Inflation Board in terminating the applicant's employment was a disguised disciplinary action. Nor do we thing that the Adjudicator's conclusion on the facts before him, that he was without jurisdiction, was erroneous.

The application, therefore, fails and it will be dismissed.

A.L. Thurlow, C.J.