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166-2-26927, 26928, 27383
Rinaldi and Treasury Board (Canadian Space Agency)
Before: M-M. Galipeau
Appearances: M. Lapointe, for the Grievor; R. Piché, for the Employer
Decision rendered: October 5, 1998
Jurisdiction - Reprimand - Reassignment - Abolition of position - Termination - Administrative or disciplinary measures - Subsection 92(3) of the Public Service Staff Relations Act (PSSRA) - the grievor filed four complaints against his supervisor, one of which was to the effect that the latter allegedly asked him to falsify documents - following the filing of these complaints, he received a written reprimand and was assigned to new duties for the duration of the employer's investigation - the employer eventually concluded that the complaints were without foundation - subsequently, the grievor's position was abolished and the grievor's employment was terminated - these latter events occurred while the grievor was on sick leave - in his first grievance, the grievor alleged that he had been unfairly reprimanded and reassigned to new duties, and that his position had been abolished - in his second grievance, he claimed that he had been dismissed - the employer raised preliminary objections to the effect that the first grievance had been filed late and to the effect that a reprimand, a reassignment to new duties, and an abolition of position were not measures within the adjudicator's jurisdiction - the employer also claimed that the grievor had not claimed in his grievances that he had been subject to disciplinary measures - as for the second grievance, the employer argued that the layoff was a measure taken under the Public Service Employment Act and that the adjudicator could not consider this question, since, under subsection 92(3) of the PSSRA, this type of termination of employment may not be sent to adjudication - in light of subsection 92(3) of the PSSRA, the grievor asked the adjudicator to rule on her jurisdiction to hear the evidence on the merits - he argued that the employer's actions were taken in bad faith - the adjudicator ruled that, if bad faith was proved before her, subsection 92(3) of the PSSRA would not prevent her from having jurisdiction - counsel for the employer made it known that he would ask the Federal Court to rule on the question of the adjudicator's jurisdiction - the adjudicator therefore adjourned the proceedings to allow the Court to rule on the question: (1996) 29 PSSRB Decisions 30 - the Federal Court confirmed the adjudicator's decision (Federal Court, File No. T-761-96) - when the hearing resumed, the grievor had referred a third grievance to adjudication - in this third grievance, he alleged that he had been dismissed while he was on sick leave - the grievor claimed that the termination of his employment was a disguised disciplinary measure and pointed out that there was a personality conflict between him and his supervisor - the grievor argued that the employer had acted in bad faith and that the investigation of the complaints he had made against his supervisor had not be conducted fairly - the employer argued that the grievor's position had been created to coordinate the move of the Canadian Space Agency (Agency) and that, once the move had been completed, there was no longer any reason for the position - the employer also argued that, prior to the creation of a new level of management within the Agency, to which the grievor's supervisor was appointed, the grievor had reported directly to the President of the Agency - the employer was of the view that the grievor took umbrage at the influence that his supervisor had within the Agency and never accepted the reduction of his own influence, caused by the creation of this new level of management and the arrival of his supervisor - the employer alleged that the grievor filed his complaints as a way to protect himself against the suspected future abolition of his position - the employer argued that the written reprimand given to the grievor stemmed from the grievor's refusal to discuss his complaints with his supervisor, as he had been asked to do by the President of the Agency, and from the fact that the grievor had questioned the ability of the President of the Agency to deal with these complaints ethically - the employer justified the grievor's reassignment during the investigation by the need to separate him from his supervisor during this period - the employer explained that the grievor's position was abolished because of a reorganization of the Agency, which was done prior to the filing of the grievor's complaints - the adjudicator found that the abolition of the grievor's position was not a disguised disciplinary action, but resulted directly from the Agency's restructuring, and that this position would have been abolished even if the grievor had not been the incumbent - the adjudicator also found that the employer had not acted in bad faith, but rather that it was the grievor who had acted, if not in bad faith, at least with a lack of good will - the adjudicator ruled that she did not have jurisdiction to hear the grievances.