Canada Employment and Immigration Union -
January 27, 2011

Federal Court of Appeal backs member on staffing case

Since the introduction of new legislation in 2005, members have not had much success challenging staffing decisions, but CEIU member Robert Kane recently won an important case at the Federal Court of Appeal.

Kane’s original complaint of abuse of authority to the Public Service Staffing Tribunal (PSST) was turned down. His position had been reclassified and then advertised and given to another employee. The employer argued that the position was in fact “new” and not “reclassified”, and took this into account in its decision to advertise the job. The PSST concluded that even if the employer had misinterpreted the guidelines around new and reclassified positions, there was no basis for finding that there had been an abuse of authority.

The PSAC first appealed the PSST decision to the Federal Court. There, the court upheld the decision of the PSST.

Fortunately, the Federal Court of Appeal saw things differently. It allowed the appeal and ordered the PSST to examine whether the position was new or reclassified. If the PSST finds that the job was reclassified, it could, after considering all circumstances, conclude that the decision to fill the position on the basis of an advertised appointment process was an abuse of authority.

This court decision will be important not only to cases involving reclassification. Essentially, it will be useful in all cases where complainants are trying to establish a broad interpretation of “abuse of authority” and where we are attempting to have the employer respect its own staffing guidelines. Members with questions about the significance of this decision to staffing issues they face are asked to speak with the CEIU National Union Representative responsible for their local.

CEIU National Union Representative Brian Richey represented Robert Kane before the Public Service Staffing Tribunal.


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