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166-34-32035 (2004 PSSRB 33)
Kreway v. Canada Customs and Revenue Agency
Before: J. Potter
Appearances: D. Seaboyer, for the Grievor; R. Armstrong, for the Employer
Decision rendered: April 30, 2004
Grievance procedure - Third party notice - Workforce Adjustment - Jurisdiction - the grievor alleged that the employer had willfully contravened the Workforce Adjustment Appendix of his collective agreement - it became apparent that the grievor wished to be appointed to a position that he did not occupy and which was encumbered by another individual - this individual had not been advised of his or her right to attend the hearing and be represented - the adjudicator raised this issue with the parties and also raised the issue of his jurisdiction to appoint the grievor to a position already encumbered by someone else - the parties requested that they make written submissions on the jurisdictional question only - the adjudicator decided that he did not, at this juncture, need to decide the issue of whether or not he had the jurisdiction to order the remedy requested by the grievor, i.e. appointment to the encumbered position - instead, he found that the central question to be answered in deciding this grievance was whether or not there had been a contravention of Appendix E (Workforce Adjustment) of the collective agreement - he found that he did have the jurisdiction to answer this question - while the requested corrective action might be something that he was barred from ordering, this did not prevent him from hearing the reference to adjudication - however, if the grievor was going to argue that the employer had violated the collective agreement and ask him to appoint the grievor to an encumbered position, then the other employee must receive notice in advance of the hearing and standing at the hearing in the event that the parties indicated an intention to participate in a hearing de novo.
Cases cited: Public Service Alliance of Canada v. Treasury Board (Solicitor General Canada - Correctional Service), 2001 PSSRB 44.