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

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166-2-26613
Thibault and Treasury Board (Solicitor General Canada - Correctional Service)

Before: M.-M. Galipeau
Appearances: A. La Bissonnière, for the Grievor; M.-C. Couture, for the Employer
Decision rendered: September 9, 1996

Acting pay - Jurisdiction - Pecuniary penalty - Administrative measure - Admissible evidence - employer terminated grievor's acting position on strength of statements to the effect that grievor was consuming alcohol on the job - grievor filed a grievance alleging harassment and seeking, among other things, reinstatement in his position and reimbursement of his acting pay - firstly, employer filed an objection to adjudicator's jurisdiction to hear the grievance on grounds that grievor's removal from his acting position constituted an administrative action pursuant to the Public Service Employment Act and related regulations - grievance could therefore not be referred to adjudication pursuant to s. 92 of the Public Service Staff Relations Act - secondly, employer filed an objection on grounds that the harassment policy invoked by grievor was not an integral part of collective agreement and therefore could not be the subject of a referral pursuant to s. 92 - thirdly, employer filed an objection to adjudicator's jurisdiction based on Burchill case on grounds that grievor made no claim in his grievance that the action constituted "disciplinary action resulting in a pecuniary penalty" - grievor filed an objection to the admission in evidence of testimony of persons summoned to appear by the employer on grounds that their testimony constituted hearsay - adjudicator adjourned for further consideration of all objections - regarding employer's first objection, she ruled that employer had argued that the action was administrative in order to deny grievor recourse against the imposed action because there was no evidence against him - action was therefore disciplinary - as for employer's second and third objections, adjudicator found that employer had not been caught off-guard - on the main issue, adjudicator found there was no evidence of any wrongdoing by grievor - given the lack of evidence that the acting position would have been extended beyond period of grievor's incumbency, adjudicator did not reinstate him in his acting position, but instead awarded him the pay and benefits to which he would have been entitled had he completed the acting period.

Grievance allowed.

Case cited: Burchill v. Attorney General of Canada, [1981] 1 C.F. 109.