Zhang v. Treasury Board (Privy Council Office)
2009 PSLRB 22
- Before: Marie-Josée Bédard
- Decision Rendered: 2009-02-16
- Original Language: English
Termination – Jurisdiction of an adjudicator – Alteration of grounds – Timeliness of preliminary objection – Whether employer waived preliminary objection – Whether grievances should be subject of joinder – Estoppel – Whether grievance was moot
The grievor filed two grievances, one contesting the termination of her employment and the other challenging the cancellation of her reliability status – these grievances are linked with another grievance, which she filed in 2003, challenging the termination of her employment from the Privy Council Office (PCO) – a security assessment for a Top Secret security clearance identified adverse information about her loyalty to Canada –she was denied a Top Secret security clearance, and her secret clearance was revoked – a secret clearance was a requirement for employment at the PCO, and her employment was therefore terminated – the grievance contesting her termination was decided by adjudicator Mackenzie, who concluded that the employer had an obligation to search for an alternate position for the grievor outside the PCO and that it had not fulfilled that obligation – he held that pending completion of a diligent two-month search, the grievor should be reinstated to leave with pay status, which status would end once the employer had completed its search – he retained jurisdiction solely to deal with any matters relating to the implementation of the part of the order concerning her reinstatement to leave with pay status – at the end of the two-month search, the grievor was terminated once again and, since she was no longer considered an employee, her reliability status was administratively cancelled – subsequent to her termination, the grievor obtained a permanent position with Service Canada through a competition open to the public – she therefore claimed only a monetary remedy for her grievance against the termination of her employment – the grievor filed the grievances that are the subjects of this decision – the employer objected to the jurisdiction of an adjudicator to hear the termination grievance and to the joinder of the two grievances – the adjudicator held that in seeking compensation rather than reinstatement, the grievor had not changed the nature of her grievance – the adjudicator considered that compensation could constitute a remedy encompassed by the grievance – she held that the employer had not waived its right to raise the preliminary objection and that such objections could be raised at any time – the adjudicator rejected the employer’s argument that she had no jurisdiction because the termination was done in the application of adjudicator Mackenzie’s decision – his order did not imply that the grievor had to be terminated after the search period or that the reinstatement was restricted only to the search period – therefore, the employer’s decision to terminate was not the implementation of adjudicator Mackenzie’s decision – it was distinct from the original termination and was therefore adjudicable under section 209 of the Public Service Labour Relations Act (“the Act”) – estoppel did not apply as the issues raised in the grievance were not identical to the issues raised before adjudicator Mackenzie – even had the previous decision entailed the grievor’s termination in the event that the job search was unsuccessful, an obligation to conduct a diligent search was required – in the event that both an adjudicator and the Federal Court have jurisdiction over a labour relations dispute, adjudication is preferred – the issues raised in the grievances are encompassed by the dispute resolution regime in the Act, over which an adjudicator has jurisdiction – adjudicator Mackenzie did not remain seized of the issue of the sufficiency of the search and is functus officio with respect to the issues of which he did not remain seized – the adjudicator held that it was appropriate to hear the two grievances together – the grievor’s subsequent appointment to a position at Service Canada did not render moot her grievance against the cancellation of her reliability status.