Worker not an employee under public service board's jurisdiction; can't file grievance
A worker for a federal agency not considered in the public service cannot bring a grievance under the Federal Public Sector Labour Relations Act, the Federal Public Sector Labour Relations Board has ruled.
The worker was employed with the National Battlefields Commission (NBC), a federal government agency in charge of conserving historical battlefields in the Quebec City area. The NBC operates under the portfolio of the federal Minister of Canadian Heritage.
On Oct. 21, 2022, the NBC terminated the worker’s employment. There was no grievance process at the NBC, so on Nov. 18, the worker sent a grievance regarding his termination to the board under the Federal Public Sector Labour Relations Act (FPSLRA).
The NBC objected to the grievance, arguing that it was not part of the public service and the worker was not an employee who could seek recourse under the FPSLRA. It pointed out that the act defines “employer” as a department named in Schedule I of the federal Financial Administration Act (FAA), a portion of the federal public administration in Schedule IV of the FAA, or a separate agency under Schedule V of the FAA. The FAA also defines “public service” as positions under entities named in those three schedules.
Not a public service
The NBC does not appear in any of those schedules, but rather appears in Schedule II, which lists federal agencies not considered public service. The FPSLRA is clear that only people employed in the public service can file an individual grievance to the board, said the NBC.
The worker argued that the NBC is a federal government agency that is part of the Department of Canadian Heritage and is funded by the Department of Finance. As a result, his position fell at least indirectly under Schedule I of the FAA, he said.
The worker also provided a legal opinion stating that he had no recourse under the Canada Labour Code - which restricts “any departmental corporation” under Schedule II of the FAA - and the NBC was part of the “federal government apparatus.” The legal opinion went on to say that the exclusion of the worker went against the purpose of the FPSLRA, which states that it is meant to assist in the “fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment…”
The worker also said that NBC employees are represented by the Public Service Alliance of Canada, a union that represents many federal employees.
Definition of ‘employee’
The board agreed with the worker that the NBC was part of the Canadian federal government apparatus, but this didn’t automatically mean that the FPSLRA allowed him to file a grievance with it. However, the FPLSRA’s definition of “employee” didn’t include NBC employees or the NBC itself within the public service, the board said.
The board also noted that the FPSLRA requires following a grievance process before a referral to the board can happen. Since there was no grievance process at the NBC, the worker could not meet the prerequisite for the board to hear his complaint, said the board.
The board found that placing the NBC specifically in Schedule II of the FAA was not an oversight, as other agencies under the Department of Canadian Heritage such as the National Film Board and the Library and Archives of Canada appeared in more than one schedule in the FAA. In addition, the NBC was similar to national museums – part of the Department of Canadian Heritage’s portfolio and funded by the Department of Finance, but not part of the public service.
Represented by public sector union
The board also found that the fact that NBC employees are represented by federal public sector employees’ union wasn’t a deciding issue. The Public Service Alliance of Canada was certified as the bargaining agent for NBC employees by the Canada Industrial Relations Board, not this board, it said.
The board determined that the worker was not an employee within the meaning of the FPSLRA and therefore could not bring a grievance under the FPSLRA. The worker’s proper recourse would be to go to court, said the board in dismissing the grievance for lack of jurisdiction. See Laquerre v. The National Battlefields Commission, 2023 FPSLREB 84.
