Date: 19980112
Docket: T-223-97
BETWEEN:
ROXZANNE T. HILTON,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
(Expanded and edited version of Reasons delivered from the Bench
at Edmonton, Alberta on January 9, 1998.)
REED, J.:
[1] The applicant sought an order of prohibition to prevent a Board of Inquiry, established pursuant to subsection 6(3) and section 42 of the Public Service Employment Act, from enquiring into whether she was qualified for the PM-04 position with the Department of Indian and Northern Affairs to which she had been appointed. The inquiry is also to determine whether she had been involved in any
fraudulent practice during the selection process that led to her appointment to that position.
[2] The applicant was appointed to the PM-04 position on July 6, 1992. She performed the job exceedingly well. Her performance appraisals show excellent performance and even recommend her for promotion. Sometime during the summer of 1995 it became known, by those in the management hierarchy above her, that she did not have the academic qualifications that she had claimed to have when she applied for the PM-04 position, which qualifications had been identified as necessary for that position.
[3] Discussions ensued at which the applicant was accompanied by her union representative. These culminated in meetings of August 21 and 22, 1995. At those meetings it was agreed that the applicant would be demoted to a PM-03 classification, that she would be moved into a PM-03 position in another directorate within the Department of Indian and Northern Affairs, and that she would serve a five day suspension. She signified her acceptance of the demotion by letter dated August 23, 1995. Her five day suspension commenced by letter dated that same day.
[4] Under the relevant legislation (e.g. the Public Service Employment Act, the Financial Administration Act and the Public Service Staff Relations Act), which I do
not find it necessary to describe in detail, the management hierarchy of the Department had authority to terminate her employment and to impose disciplinary sanctions, such as imposing a suspension. Only the Public Service Commission, however, has the
authority to revoke or make appointments. Thus, management could only recommend the revocation of her PM-04 appointment and reappointment to a PM-03 position. Nothing turns on this, however, because there is no reason to think that the Public Service Commission was not prepared to adopt the recommendations that were made.
[5] Sometime after the August 23, 1995 date but before the demotion had been effected, the applicant decided that she did not agree that demotion was an appropriate consequence of the misconduct that had occurred. As a result of the withdrawal of her consent, the Public Service Commission established the Board of Inquiry, the jurisdiction of which is challenged in this application.
[6] Counsel for the applicant, in his written submissions, made two arguments: (1) the issues which the Board has been established to consider are now moot since the applicant is now working in a PM-03 position; (2) discipline for the misconduct has now been served, viz. the five day suspension, and additional disciplinary action cannot now be taken.
[7] The mootness argument was not pursued orally at the hearing because affidavit evidence, filed by the respondent, shows that while the applicant is working at a
PM-03 job, this is by way of assignment only. She still holds a PM-04 level position.
[8] With respect to the argument that discipline for misconduct has been imposed and the employer cannot resile from that position, argument centred upon the extent to which private employment law rules apply to public servants. It is argued that private law rules apply, and that they preclude any penalty in addition to the five day suspension that has already been served. The authorities cited were: Brown and Beatty, Canadian Labour Arbitration (December 1995), pp. 7-163 - 7-164; Re United Electrical, Radio and Machine Workers, Local 520 v. Tolman Barnes Co. Ltd. (1957), 7 L.A.C. 253 (Arbitrator); Re Calgary Cooperative Association Ltd. v. Calco Club (1991), 23 L.A.C. (4th) 142 at pp. 147, 149 (Arbitrator).
[9] There is no real dispute concerning when private law employment rules apply to a public service employee. Both counsel agree that this occurs when the particular aspect of the contract of service is not governed by statute. When there is a gap in the legislative code (statute, regulations and directives issued thereunder) it will be appropriate to apply what have been referred to by counsel for the applicant as private law rules.
[10] As I indicated, I do not think the issue in this case is whether or not private law rules (common law rules) apply. This is because, even if an analogy is drawn to
the private employment situation, the present case is not one in which an employer has imposed a disciplinary sanction and then seeks to impose a more stringent one. The present situation is one in which an employer and employee have agreed to the consequences that will follow upon a finding of misconduct and, then, the employee decides that what he or she has agreed to is too severe. I was referred to no authority that establishes that in the private employment context, in those circumstances, partial compliance with the agreement prevents the implementation of the rest of the agreement or the invocation of a contemplated dispute resolution procedure.
[11] If an employer can not resile from an agreement, as the authorities cited by counsel for the applicant demonstrates, maybe, in general, an employee also can not resile. In any event, as noted, the respondent accepted the applicant's withdrawal of consent to the demotion and put in place the procedure provided by statute for resolution of the dispute. This is not dissimilar to the procedure followed in a private sector employment situation. That is, the difference of opinion would be resolved, in a private employment situation,by the means provided for under the relevant employment contract, e.g. the relevant collective agreement if one existed. The employee's withdrawal of consent does not prevent further action by the employer.
[12] The applicant and her senior management reached an agreement. She later felt she had made a too hasty decision. The relevant statutory provisions that govern the applicant's employment provide for the establishment of a Board of Inquiry when
questions are raised concerning a person's qualifications or fraudulent behaviour in a selection process. Thus, whether or not her appointment should be revoked has been referred to a Board of Inquiry. The Board (Mr. Rosenbaum) has authority to recommend that her appointment be revoked. He also has authority to recommend that she be reappointed to a position for which she has the qualifications (e.g. a PM-03 position). There is nothing in the facts adduced that undermines the Board's jurisdiction.
[13] It is alleged that the applicant misrepresented her academic qualifications when she applied for the PM-04 position. If this is so, it is very serious misconduct. Misrepresentation is the type of conduct that breaks the trust relationship that is essential to an employee/employer relationship. I must repeat however a comment I made orally at the hearing. Sometimes job qualifications are established by reference to academic qualifications (paper qualifications) and there are people who are better at doing the particular job, who do not have the paper qualifications, than people who do have such qualifications. This may very well have been the applicant's situation. It does not however excuse the misconduct or alter the applicable legal rules.
[14] For the reasons given the application for an order of prohibition was dismissed.
"B. Reed"
Judge
Toronto, Ontario
January 12, 1998
FEDERAL COURT OF CANADA
Date: 19980112
Docket: T-223-97
BETWEEN:
ROXZANNE T. HILTON,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-223-97
STYLE OF CAUSE: ROXZANNE T. HILTON
- and -
| ATTORNEY GENERAL OF CANADA |
DATE OF HEARING: JANUARY 9, 1998
PLACE OF HEARING: EDMONTON, ALBERTA
| REASONS FOR ORDER BY: REED, J. |
DATED: JANUARY 12, 1998
APPEARANCES: Mr. Bruce King
For the Applicant
Ms. Ursula Tauscher
For the Respondent
SOLICITORS OF RECORD:
Mr. Bruce King
CRUICKSHANK KARVELLAS
Barristers and Solicitors
3400 10180 101 St.
Edmonton, Alberta
T5J 4W9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent