Vaughan and Treasury Board (Public Works and Government Services Canada)

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166-2-28296
Vaughan and Treasury Board (Public Works and Government Services Canada)

Before: C. Taylor
Appearances: S. Brosseau, for the Grievor; R. Fader, for the Employer
Decision rendered: March 18, 1999

Work Force Adjustment Directive (WFAD) – Separation benefit – Reserved jurisdiction to deal with matters arising out of the application of an earlier decision – Employer's failure to comply with an earlier decision – Whether the employer is entitled to raise new arguments at this stage – Theory of functus officio – Jurisdiction – Sections 23 and 97 of the Public Service Staff Relations Act (PSSRA) – in an earlier decision, the adjudicator had found that the grievor was entitled to the payment of a separation benefit pursuant to provision 7.3.1. of the WFAD: (1998) 34 PSSRB Decisions 22 – the adjudicator had reserved jurisdiction to deal with any issue arising out of the implementation of his decision – the employer refused the grievor the payment of the separation benefit and the grievor applied for relief on the basis of the adjudicator's reserved jurisdiction – the employer objected to the application on three grounds: 1) that the employer had no authority to make the payment because provision 7.3.1. of the WFAD had been suspended from application during the period the grievor had been a surplus employee; 2) that the adjudicator was without jurisdiction to hear the application, on the basis of the theory of functus officio; and 3) that the jurisdiction to order the employer to comply with the adjudicator's earlier decision was vested in the Board, not the adjudicator – in relation to the first ground raised by the employer, the adjudicator found that no submission had been made by the employer during the hearing leading to the earlier decision as to its inability to make a payment pursuant to provision 7.3.1. of the WFAD – the adjudicator concluded that the employer was not allowed to re-argue its case and that it should have filed a judicial review application had it wished to do so – on the second ground raised by the employer, the adjudicator found that he had no authority to re-consider his earlier decision as to the grievor's entitlement to a separation benefit, as the earlier decision contained a final determination of that issue – on the third ground raised by the employer, the adjudicator concluded that, pursuant to subsections 23(1) and 97(6) of the PSSRA, the Board, and not he, had jurisdiction to deal with an allegation that the employer has failed to give effect to the decision of an adjudicator.

Application dismissed.