Zhang v. Treasury Board (Privy Council Office)

2005 PSLRB 173

  • Before: I. Mackenzie
  • Decision Rendered: 2005-12-08
  • Original Language: English

An application for judicial review before the Federal Court has been dismissed (Court file: T-17-06) (2007 FC 235).

Subject terms:

Termination (non-disciplinary) -- Incapacity -- Revocation of Security Clearance -- Requirements of Just Cause

The grievor held an indeterminate position with Industry Canada as an IS-05 -- the grievor was offered and accepted the equivalent position at the Privy Council Office (PCO) and was advised that she would be put into an acting IS-06 position -- both the IS-05 and IS-06 positions at PCO required a secret clearance, which the grievor was granted upon her arrival there -- the grievor was later advised that a mistake had been made and the PCO had applied for a “top secret” clearance for her -- as a result of the Canadian Security Iintelligence Service investigation, the “top secret” clearance was denied and the grievor’s secret clearance was revoked -- the grievor was placed on leave without pay and subsequently terminated -- the Treasury Board’s Security Policy requires that, prior to termination, consideration be given to reassigning employees in such circumstances to other positions unless there are exceptional circumstances -- the employer argued at the hearing that exceptional circumstances existed as the grievor presented a threat to the security of the country due to concerns about her loyalty to Canada -- all positions at PCO required secret clearance as a minimum -- the PCO made no attempt to find positions for the grievor outside the department -- the employer argued that its obligation to search for other positions was limited to within the department, pursuant to the Federal Court’s decision in Singh -- the bargaining agent argued that the obligation to search for positions extended beyond the department -- the bargaining agent argued that, because the employer did not meet its obligation to search for other positions, it did not meet the standard required to establish just cause -- the adjudicator held that, under Singh, the obligation to search for alternate positions rested with the Treasury Board, not the deputy head of the department -- the adjudicator held that the employer did not produce any evidence of an “exceptional circumstance” -- a finding of concern regarding a person’s loyalty is not enough, otherwise “exceptional” would be devoid of any meaning -- the adjudicator held that because the obligation to search for positions beyond just the department was not met, the employer did not establish just cause -- the adjudicator ordered that the employer should conduct a diligent search for two months and that the grievor should be reinstated to her leave with pay status until the search is completed.

Grievance allowed in part.