Marinos and Treasury Board (Solicitor General Canada - Correctional Service)

166-2-27446

  • Before: M. Korngold Wexler
  • Appearances: R. Letendre, for the Grievor; H. Newman, for the Employer
  • Decision Rendered: 1997-12-24

An application for judicial review before the Federal Court has been dismissed (Court file: T-167-98).

Subject terms:

Termination (disciplinary) – Prison guard – Term employee – Remedy – in an earlier decision, adjudicator had concluded that she had jurisdiction to entertain the grievor's grievance against the termination of her employment for disciplinary reasons as the grievor was an employee as defined in section 2 of the Public Service Staff Relations Act: (1997) 31 PSSRB Decisions 33 – as the employer adduced no evidence to justify the decision to terminate the grievor's employment, the only remaining issue was the remedy – evidence established that grievor had been appointed under section 21.2 of the Public Service Employment Act (PSEA)which prohibited the appointment of a person thereunder to work in any particular department for more than 125 days in any year – grievor had worked 115 days at the time of the discharge – grievor sought reinstatement in her position alleging that she had been an indeterminate employee at the time of her discharge – she maintained that her appointment under section 21.2 of the PSEA had been artificial as there was a continuing need for her services – she also sought damages for mental distress – adjudicator concluded that in light of section 21.2 of the PSEA the grievor was not an indeterminate employee and therefore was not entitled to reinstatement – rather she was only entitled to compensation for an additional 10 days – furthermore the adjudicator ruled that, even if she had jurisdiction to award aggravated damages in a proper case, grievor had failed to establish a separately actionable course of conduct which was the foundation for such an award.

Grievance allowed in part.

Cases cited: Laird (166-2-19981); Canada (Attorney General) v. Lussier (Court file A-1235-91) (F.C.A.); Canada (Attorney General) v. Hester, [1997] 2 F.C. 706; Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085; Jack Wallace v. United Grain Growers Limited (Court file 24986) (S.C.C.).