Union News - September 2017
The Heyser decision is a recent federal court ruling dealing with the matter of the employer revoking an employees’ security reliability status which ultimately results in termination of the employee.
The union’s position, both PSAC and UTE, is that in many cases the employer’s use of this practice is done to circumvent the use of the proper procedures when considering employee termination. What does this mean? Basically, while recognizing the employer’s right to potentially terminate employees it should be done in a manner that affords employees the right to the appropriate recourse to challenge these decisions.
When the employer revokes an employee’s security status, they no longer become employable within the CRA. The union’s belief is that often these actions are effectively disguised discipline. The employer tries to argue that these are administrative matters within their authority. Why does this matter? You might say at the end of the day the employee has been terminated, basically the same results regardless of the manner in which it’s done. This actually is the most important element of this whole issue. When the revocation process is used, the recourse available to the employee is to file a grievance on the revocation. The challenge with this is that the employer argues that it is that an administrative matter not subject to adjudication. While if the employer uses discipline to terminated employee, the employee also has a right to file a grievance, but this grievance includes automatically the right to be considered as a matter that could go to adjudication.
The outcomes depending on the path taken could be significantly different. Grievances that are considered non-adjudicable cannot be reviewed by an independent third party while grievances that can go to adjudication are afforded the possibility of being reviewed by an independent third party. Simply put without the ability to go to adjudication the decision of the employer is reviewed by no one but the employer and the likelihood of a positive outcome for the employee is almost Nil.
In June 2012, Cher Heyser an employee of HRDC filed a grievance on the revocation of her reliability status. This grievance was denied by her employer through all levels of the grievance process and was ultimately referred to adjudication. At the adjudication hearing that occurred in August 2015, the employer argued that this was an administrative matter not subject to the authority of the adjudicator. In this case the adjudicator ruled that he believed he had the authority to review the matter and ultimately ruled that the employee should be reinstated into her job. In the adjudicator’s ruling he stated that the matter should have been dealt with as discipline. And then ruled that as discipline termination would have been considered too harsh based on the circumstances of the case.
This is truly the most important factor in why these matters need to be dealt with at adjudication. It can be determined by an independent individual whether “the punishment fits the crime”. It is unfortunate to consider how many individuals may have been terminated through an “administrative process” while an adjudicator might have ruled less significant discipline would be warranted.
The employer and ultimately Treasury Board did not agree with this ruling as a stated above in the belief from the employer side was that these were administrative decisions not subject to adjudication. This case was then referred to the Federal Court of Appeal for a judicial review. Effectively what was being challenged was a right of the adjudicator to rule on this matter.
In September 2016, this matter was heard before a panel of three Federal Court Judges. Arguments were presented by both the Attorney General of Canada representing Treasury Board and lawyers representing the member and the Public Service Alliance of Canada.
The panel ultimately ruled unanimously in favour of the member stating that in certain circumstances adjudicators have the right to review these matters on the grounds that they are indeed disciplinary in nature and not simply administrative matters. Of interest, many times noted in the ruling the words used by the judges were “sham or camouflage” effectively suggesting that the use of security revocation was actually a way to circumvent the disciplinary process which as we as a union believes affords members rights that they would not otherwise have.
We only touched briefly on the details of this case, but it is safe to say this is a significant victory for public service employees who have their security reliability status revoked and as a result lose their employment. In many circumstances, the situations can now be subject to an independent review and places much more responsibility on employers to follow a more thorough and proper process.
For those interested, one can read the original PSLERB decision at:
http://www.pslreb-crtefp.gc.ca/decisions/summaries/2015-70_e.asp
or the entire decision on the Federal Court of Appeal at:
http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/231365/index.do