Larsen

Parties/Partis: The Queen v. Christian Larsen

Court # Cour: A-334-80

Judgment/Jugement Date: 1980-10-31

PRATTE, J.:

Applicant is asking that a decision made pursuant to subsection 31(3) of the Public Service Employment Act, R.S.C. 1970, c. P-32 by an Appeal Board established by the Public Service Commission be set aside. (see note 1 below)

[note 1: Section 31 of the Public Service Employment Act reads as follows:

31. (1) Where an employee, in the opinion of the deputy head, is incompetent in performing the duties of the position in he occupies or is incapable of performing those duties and should

(a) be appointed to a position at a lower maximum rate of pay, or

(b) be released, the deputy head may recommend to the Commission that the employee be so appointed or released, as the case may be.

(2) The deputy head shall give notice in writing to an employee of a recommendation that the employee be appointed to a position at a lower maximum rate of pay or be released.

(3) Within such period after receiving the notice in writing mentioned in subsection (2) as the Commission prescribes, the employee may appeal against the recommendation of the deputy head to a board established by the Commission to conduct an inquiry at which the employee and the deputy head concerned, or their representatives, are given an opportunity of being heard, and upon being notified of the board's decision on the inquiry the Commission shall,

(a) notify the deputy head concerned that his recommendation will not be acted upon, or

(b) appoint the employee to a position at a lower maximum rate of pay, or release the employee, accordingly as the decision of the board requires.

(4) If no appeal is made against a recommendation of the deputy head, the Commission may take such action with regard to the recommendation as the Commission sees fit.

(5) The Commission may release an employee pursuant to a recommendation under this section and the employee there upon ceases to be an employee.]

Respondent was employed by the Department of Regional Economic Expansion when he was notified that the Deputy Head of the Department had recommended his release for incompetence, pursuant to subsection 31(1) of the Public Service Employment Act. Relying on his right to appeal under subsection 31(3), respondent appealed from this recommendation to a Board established by the Public Service Commission. At the conclusion of its inquiry, this Board expressed its findings in a lengthy decision rendered on May 9, 1980. The essence of these findings may be summarized as follows:

(1) The Deputy Head of the Department was justified in stating that respondent was incompetent in performing the duties of his position.

(2) Respondent was, however, capable of performing other duties; the Deputy Head nevertheless recommended his release rather than a transfer solely because at that time there were no vacant positions within the Department that respondent was competent to fill.

(3) In these circumstances, rather than releasing respondent the Commission should appoint him to another position.

It is this decision that applicant now wishes to have set aside on the ground that the Board exceeded its authority in ordering that respondent appointed to another position.

The sole issue to be decided is accordingly whether a board hearing an appeal from a recommendation for release has the authority under 31 to order that the incompetent employee be appointed to another position.

The last phrase of subsection 31(3) refers indirectly to the decisions that an appeal board authorized to make:

...upon being notified of the board's decision on the inquiry the Commission shall,

(a) notify the deputy head concerned that his recommendation will not be acted upon, or

(b) appoint the employee to a position at a lower maximum rate of pay, or release the employee,

accordingly as the decision of the board requires.

In the case at bar the maker of the decision a quo interpreted this as conferring on it the authority to render one of three decisions:

1. to order that the recommendation not be acted upon,

2. to order that the employee be appointed to another position, or

3. to order that the employee be released.

This interpretation should not, in my opinion, be upheld. The last phrase in subsection 31(3) does not describe the decisions a board may render; rather it sets forth what must be done by the following a decision of the board. It may either allow the appeal or dismiss it. These are two possibilities to which paragraphs 31(3)(a) and (b) refer. If the board allows the appeal, the Commission must, according to paragraph (a), "notify the deputy head concerned that his recommendation will not be acted upon"; if the board dismisses the appeal, the Commission must then, as stated in paragraph (b), act upon the recommendation made by the deputy head, either by releasing the employee, or by appointing him to a lower position, depending on the nature of the recommendation.

Furthermore, the interpretation given to subsection 31(3) in the decision a quo leads to consequences that appear absurd to me. First, this interpretation would enable an appeal board to make orders that would in many cases be impossible to implement. In effect, the Commission can make an appointment (and accordingly can transfer an employee) only where there is a vacant position that the authorities in the department concerned are asking it to fill. The Act does not provide that the Commission may create new positions or fill those that are vacant as it pleases and of its own initiative. A further consequence of this interpretation would be that where the board ordered that an incompetent employee be transferred rather than released, this employee would, despite his incompetence, retain his position as long as no other position had been found for him.

For these reasons I would grant the application, quash the decision a quo and refer the matter back to the Board for decision on the basis that, under section 31 of the Public Service Employment Act, a board hearing an appeal from a recommendation for release does not have the authority to order that the employee concerned be appointed to another position.

RYAN J.: I concur.

LE DAIN J.: I concur.