A-498-79
Patricia Nelson (Applicant)
v.
Attorney General of Canada (Respondent)
and
Appeal Board established by the Public Service
Commission (Tribunal)
Court of Appeal, Heald and Urie JJ. and MacKay
D.J.—Toronto, January 8 and 9, 1980.
Judicial review -- Public Service — Applicant released on
Deputy Head's recommendation as applicant was considered
to be incapable of carrying out her duties — Application to
review and set aside dismissal by Public Service Commission
Appeal Board of applicant's appeal from release — Whether
or not Board was correct in holding that Article 24.01 of the
Postal Operations Group Collective Agreement could not oper
ate to fetter the right provided to Deputy Head by s. 31 of the
Public Service Employment Act to recommend release of
applicant — Public Service Employment Act, R.S.C. 1970, c.
P-32, s. 31 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28.
This section 28 application is to review and set aside the
decision of a Public Service Commission Appeal Board to
dismiss applicant's appeal from the recommendation of the
Deputy Head that applicant be released as she was incapable of
carrying out the duties of her position. Applicant had been and
would continue to be unable to perform the duties of her
position because of a permanent disability, the result of injury
on duty. The sole issue is whether or not the Board was correct
in holding that Article 24.01 of the Postal Operations Group
Collective Agreement could not operate to fetter the right
provided to the Deputy Head by section 31 of the Public
Service Employment Act to recommend the release of the
applicant.
Held, the application is dismissed. The Court is in agreement
with the Board's decision. In its reasons, the Board found that
it could be reasonably inferred from section 31 of the Act that
capability of performing the duties of one's position was a
condition of employment and consequently it could not be
argued that Article 24.01 of the collective agreement supersed
ed section 31 of the Act. The Board rejected the argument that
the collective agreement had statutory authority; the legislation
(Bill C-8) dealt only with the settlement of a dispute. There is
an additional reason, however, for reaching the same conclu
sion. Article 24.01 is to ensure that a person who has been
rendered unable to perform his duties for a temporary period of
time, for any of the reasons referred to therein, will not be
discharged or released from his employment by reason of such
disability. The language of the Article clearly points to the
temporary rather than permanent nature of the absence from
employment contemplated by the Article. The employer was
justified in concluding that applicant was incapable ever again
of performing the duties of her position.
APPLICATION for judicial review.
COUNSEL:
P. J. J. Cavalluzzo for applicant.
B. Segal for respondent and Tribunal.
SOLICITORS:
Golden, Levinson, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent and Tribunal.
The following are the reasons for judgment
rendered in English by
URIE J.: This section 28 application is brought
to review and set aside the decision of an Appeal
Board appointed under section 31(3) of the Public
Service Employment Act, R.S.C. 1970, c. P-32,
whereby the applicant's appeal from the recom
mendation of the Deputy Head of the Department
which employed her that she be released on the
ground that she was incapable of carrying out the
duties of her position, was dismissed.
The applicant was employed by the Post Office
in Hamilton, Ontario as a P.O. 4 commencing on
January 14, 1975. She suffered injuries to her
right ankle and right knee respectively as a result
of separate accidents on December 23, 1975 and
April 11, 1976. Subsequent to the accidents the
applicant suffered repeated recurrences of prob
lems from the injuries which prevented her from
reporting to work on a regular basis, for a period
of three years. During that period she received
"injury-on-duty" leave as indicated below:
Fiscal Year Injury on Duty Leave
1975/76 15 days
1976/77 139 1 / 2 days
1977/78 110 days
1978/79 251 days
The applicant had been on such leave since
October 27, 1977 at the time the Deputy Head
recommended her release. Medical reports
received by the Post Office Department indicated
that the disability of the applicant was permanent
and was of such a nature that she would continue
to be incapable of performing the duties of her
position. As a result, pursuant to section 31(1) of
the Public Service Employment Act, the Deputy
Head recommended her release from her employ
ment and her appeal from that recommendation to
an Appeal Board established by the Public Service
Commission was dismissed. It is from that dismis
sal that this section 28 application is brought.
The sole issue, it would appear, is whether the
Board was correct in holding that Article 24.01 of
the Postal Operations Group Collective Agreement
could not operate to fetter the right provided to the
Deputy Head by section 31 of the Act to recom
mend the release of the applicant.
Subsections 31(1) and (2) of the Act read as
follows:
Incompetence and Incapacity
31. (1) Where an employee, in the opinion of the deputy
head, is incompetent in performing the duties of the position he
occupies or is incapable of performing those duties and should
(a) be appointed to a position at a lower maximum rate of
pay, or
(b) be released,
the deputy head may recommend to the Commission that the
employee be so appointed or released, as the case may be.
(2) The deputy head shall give notice in writing to an
employee of a recommendation that the employee be appointed
to a position at a lower maximum rate of pay or be released.
(3) Within such period after receiving the notice in writing
mentioned in subsection (2) as the Commission prescribes, the
employee may appeal against the recommendation of the
deputy head to a board established by the Commission to
conduct an inquiry at which the employee and the deputy head
concerned, or their representatives, are given an opportunity of
being heard, and upon being notified of the board's decision on
the inquiry the Commission shall,
(a) notify the deputy head concerned that his recommenda
tion will not be acted upon, or
(b) appoint the employee to a position at a lower maximum
rate of pay, or release the employee,
accordingly as the decision of the board requires.
Article 24.01 of the collective agreement for the
bargaining unit of which the applicant is a
member reads as follows:
24.01 Eligibility for Leave
(Oct. 18/77)
An employee shall be granted injury-on-duty leave with pay
for the period of time approved by a Provincial Workmen's
Compensation Board that he is unable to perform his duties
because of:
(a) personal injury accidentally received in the performance
of his duties and not caused by the employee's wilful
misconduct,
(b) sickness resulting from the nature of his employment, or
(c) over-exposure to radioactivity or other hazardous condi
tions in the course of his employment,
if the employee agrees to pay to the Receiver General of
Canada any amount received by him for loss of wages in
settlement of any claim he may have in respect of such injury,
sickness or exposure.
It was the applicant's contention that since her
leave had been approved by the Workmen's Com
pensation Board, the employer was obligated to
continue granting her "injury-on-duty" leave in
accordance with Article 24.01 notwithstanding
section 31 of the Act. The Appeal Board dealt
with this submission in the following fashion:
I do not accept the appellant's representative's argument that
the Department could not take release action since it was bound
to continue granting the appellant injury-on-duty leave in
accordance with Article 24.01 of the Postal Operations Group
collective agreement. I note that Section 56 of the Public
Service Staff Relations Act reads, in part, as follows:
56(2) No collective agreement shall provide directly or
indirectly, for the alteration or elimination of any existing
term or condition of employment or the establishment of any
new term or condition of employment,
(b) that has been or may be, as the case may be, established
to any Act specified in Schedule C.
The Public Service Employment Act is in Schedule C and
therefore no article in the Postal Operation Group collective
agreement can alter a term or condition of employment in that
Act. Section 31 of the Public Service Employment Act reads, in
part, as follows:-
31.(1) Where an employee, in the opinion of the deputy
head, is incompetent in performing the duties of the position
he occupies or is incapable of performing those duties and
should
(a) be appointed to a position at a lower maximum rate of
pay, or
(b) be released,
the deputy head may recommend to the Commission that the
employee be so appointment [sic] or released, as the case
may be.
In my view, it can reasonably be inferred from Section 31 that
capability of performing the duties of one's position is a condi
tion of employment and consequently it can not be argued that
Article 24.01 of the Postal Operations Group collective agree
ment supercedes [sic] Section 31 of the Public Service Employ
ment Act. I do not accept the appellant's representative's
contention that the Postal Operations Group collective agree
ment has statutory authority; Bill C-8 deals with the settlement
of a dispute and does not grant any particular statutory status
to the Postal Operations Group collective agreement.
I will not deal with the issue of whether or not the Depart
ment was entitled to require the appellant to be medicaly [sic]
examined as that is outside my jurisdiction. The only issues that
concern me are whether the appellant has, for reasons beyond
her control, been incapable of performing the duties of her
position and if so whether she is likely to remain incapable in
the foreseeable future. The appellant has been unable to report
for work on a regular basis for the last three years. The medical
reports received by the Department indicate that Ms. Nelson's
disability is permanent and the nature of the disability is such
that she will continue to be incapable of performing the duties
of her position.
Having reviewed all the evidence I do not consider that the
Department's recommendation that the appellant be released
on the grounds of incapacity was either unreasonable or unfair.
The appeal is accordingly dismissed.
With respect, I am fully in agreement with the
Board's conclusion and I do not feel that I can
usefully elaborate on what was said. However, I
am of the opinion that there is an additional
reason for reaching the same conclusion.
In my view the reason for the existence of
Article 24.01 is to ensure that a person who has for
any of the reasons referred to therein been ren
dered unable to perform his duties for a temporary
period of time, will not be discharged or released
from his employment by reason of such disability.
The language of the opening words of the Article
clearly points to the temporary rather than perma
nent nature of the absence from employment con
templated by the Article. The word "leave" clearly
connotes, in my view, a temporary absence from
duty. The same is true of the phrase "for a period
of time". Moreover, that phrase indicates, I
believe, that an indefinite or permanent absence
from the employee's duties was not within the
contemplation of the parties when the Article was
drafted. On the facts disclosed in the record of this
case it is I think clear that the Workmen's Com
pensation Board in its letter to the employer dated
February 8, 1979 implicitly, if not explicitly, was
of the view that the applicant could return only to
"modified employment where she avoids heavy
lifting, excessive walking, kneeling or squatting".
It is common ground that such restrictions were
not possible in the carrying out of the duties
required by the applicant's position. When to this
evidence is added that of the employer's physician
that the applicant "... has a medical condition
which will require the following restrictions on a
permanent basis: no continuous heavy lifting,
extensive walking, kneeling or squatting" the
employer was justified in concluding that the
applicant was incapable of ever again performing
the duties of her position. Thus Article 24.01 could
have no further application because it is referable,
as held earlier herein, only to temporary absences
from duty.
That being so the employer was entitled at that
juncture, to invoke section 31 on the basis that the
applicant could not fulfil one of the conditions of
her employment, namely, that she be capable of
performing the duties of the position which she
occupied.
For the foregoing reasons, I would dismiss the
section 28 application.
* * *
HEALD J.: I concur.
* * *
MACKAY D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.