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LABOUR RELATIONS - Layoffs - Employee status

Tuesday, November 12, 2019 @ 8:39 AM  


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Application by the Attorney General for judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board finding that the respondent was an employee under the Federal Public Sector Labour Relations Act and the Public Service Employment Act. The respondent was thus entitled to grieve the decision of the Canada Border Services Agency to exclude her from a hiring process and the Board therefore had jurisdiction over the grievance. The respondent worked at Industry Canada. She became a surplus employee and held surplus priority status for one year. She did not obtain a position in the public service during that year. Effective October 24, 2013, she was laid off under the Public Service Employment Act and ceased to be an employee under the Act. She was entitled to a further 12 months of lay-off priority status. While she held lay-off priority status, but after she ceased to be an employee under s. 64(4) of the Act, the respondent applied for a position at the Canada Border Services Agency. The Agency excluded her from the hiring process. The respondent grieved the decision, alleging discrimination in the staffing process based on her disability. The Board held that the material facts giving rise to the grievance occurred before the respondent lost her status as an employee and while she was still an employee.

HELD: Application allowed. The Board’s decision was unreasonable. Section 64(4) was a clear expression of Parliament’s intention with respect to whether a person with lay-off priority status was an employee. Parliament decided that a person who was laid off under s. 64(1) of the Public Service Employment Act ceased to be an employee. The jurisprudence concerning the interpretation of “employee” under the Act required a nexus between the material facts which underlay the grievance and the grievor’s status as an employee. Any analysis of whether the respondent was an employee for the purpose of filing a grievance under s. 206(1) of the Act must necessarily include consideration of s. 64(4) as it fixed the boundaries within which most of the material facts must be found. As the Board’s decision did not discuss this provision nor did it articulate the material facts arising when the respondent was employed, it failed to meet the Dunsmuir criteria of reasonableness.

Santawirya v. Deputy Head (Canada Border Services Agency), [2019] F.C.J. No. 1128, Federal Court of Appeal, D.J. Rennie J.A., J.M. Woods A.C.J. and J.B. Laskin J.A., October 4, 2019. Digest No. TLD-November112019003