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Matthews and Canadian Security Intelligence Service
Before: B. Turner
Appearances: S. Minnis, for the Grievor; G. Normand, for the Employer
Decision rendered: February 18, 1999
Termination (disciplinary) – Remedy – Compensation in lieu of reinstatement – Quantum – Subsection 97(4) of the Public Service Staff Relations Act (PSSRA) – in an earlier decision, adjudicator had determined that the lay-off of the grievor effective April 1, 1996, constituted a disguised disciplinary discharge which was not justified in light of all the circumstances: (1997) 31 PSSRB Decisions 29 – however, adjudicator awarded $70,000 compensation in lieu of reinstatement – upon the grievors application for judicial review, the adjudicators decision was set aside by the Federal Court, Trial Division insofar as it related to quantum: Court file T-623-97 – the Court directed the adjudicator to redetermine the quantum of damages after providing the parties with an opportunity to make submissions and give evidence on this issue – accordingly, the adjudicator convened a hearing and received additional evidence and submissions from the parties – among other things, the grievor sought compensation for being deprived of the opportunity to apply for the Early Retirement Incentive (ERI) program – he also sought interest on the amount owing to him as well as compensation for the legal costs he had incurred as an unrepresented employee – the grievor submitted that subsection 97(4) of the Public Service Staff Relations Act (PSSRA) gives an adjudicator the authority to award such damages – he attempted to rely as well on subsection 98(1) of the PSSRA – in the adjudicators opinion, the possibility of the grievors being in a position to take advantage of the ERI program if his employment had not been wrongfully terminated was entirely too speculative to justify an award of damages – the adjudicator also pointed out that the concept of "reasonable notice" only applies to terminations of employment governed by the common law and not to terminations of employment of employees governed by the PSSRA – when an employee is awarded compensation in lieu of reinstatement under the PSSRA, adjudicators look only by analogy to the common law decisions for guidance regarding the appropriate amount – adjudicator concluded that in the absence of a provision in the PSSRA which authorized him to do so he had no authority to award the grievor interest or compensation for his legal costs – neither subsections 97(4) nor 98(1) of the PSSRA gives an adjudicator such authority – indeed, subsection 98(1) refers solely to exempting an unrepresented employee from the possibility of being required to pay a portion of the Boards costs as envisaged by subsection 98(2) – in light of all the evidence adduced and the submissions of the parties, the adjudicator awarded the grievor an amount of $95,000 as compensation in lieu of reinstatement – this amount was to be in addition to any severance pay and other benefits which he received from the employer upon the termination of his employment – however, the adjudicator refused to order the employer to provide the grievor with a letter of reference or to recommend that the employer apologize to the grievor.
|Cases cited:||Alberta Wheat Pool v. Konevsky (unreported, Federal Court of Appeal, File No. A-96-89, dated September 11, 1990); Wolf Lake First Nation v. Young, (1997) 130 F.T.R. 115; Re Ogilvie and Treasury Board (1984), 15 L.A.C. (3d) 405; Puxley (166-2-22284); Hallé v. Bell Canada (1989), 99 N.R. 149; Bardall v. Globe & Mail Ltd (1960), 24 D.L.R. (2d) 140 (Ont. H.C.); Kilpatrick v. Peterborough Civic Hospital (1988), 38 O.R. (3d) 298.|