Chadwick v. Canadian Food Inspection Agency

166-32-31227 (2003 PSSRB 38)

  • Before: I. Mackenzie
  • Appearances: S. Eadie, for the Grievor; R. Jaworski, for the Employer
  • Decision Rendered: 2003-05-09

An application for judicial review before the Federal Court has been allowed (Court file: 2004-FC-503.

Subject terms:

Jurisdiction – Acting pay – Exclusion of witnesses – Time limit – the grievor was a veterinarian, classified at the VM-01 level, employed at the St. Thomas office – her supervisor was the District Veterinarian, classified at the VM-02 level, also at the St. Thomas office – when he retired on March 31, 1998, the employer eliminated his position and thereafter the grievor reported to the District Veterinarian at the London office – the St. Thomas office was transformed into a satellite office – however, the employer's expectations were that the level of service provided at the St. Thomas office would remain unchanged – as a result, the grievor took on many, but not all, of the duties formerly performed by the District Veterinarian at the St. Thomas office – on August 20, 2001, the grievor submitted a grievance seeking acting pay at the VM-02 level – the employer objected for the first time at adjudication to the timeliness of the grievance – the adjudicator dismissed this objection on the basis that the employer, by failing to raise its objection to timeliness during the grievance procedure, had waived its right to object – the employer objected to the grievor's request for the exclusion of witnesses on the basis that, as credibility was not at issue, the exclusion of witnesses was not required – the grievor alleged that issues of credibility would arise relating to the performance of duties – the adjudicator granted the exclusion order because one party alleged that issues of credibility would arise in the course of the hearing – the employer also objected to the adjudicator's jurisdiction to hear and determine the grievance because in reality it related to classification – the adjudicator noted that section 7 of the Public Service Staff Relations Act (PSSRA) excludes an adjudicator's jurisdiction over the organization of the Public Service and the classification of positions, in the absence of a provision in the collective agreement dealing with these matters – the adjudicator concluded that the effect of granting the remedy sought by the grievor, assuming that the evidence showed substantial performance by the grievor of the duties at the higher level, would be to reverse the employer's decision to reorganize the St. Thomas office – the adjudicator was of the opinion that, if he were to find that the grievor was substantially performing the duties of a VM-02, he would, in effect, be undoing the reorganization by recreating the VM-02 position that was eliminated in the St. Thomas office, contrary to section 7 of the PSSRA – no jurisdiction.

Grievance denied.

Cases cited:Afzal (166-2-19422); Stagg v. Canada, [1993] F.C.J. No. 1393; Charpentier (166-2-26197 and 26198).