Altwasser v. Canada
A-258-92
Robertson J.A.
25/5/93
6 pp.
Application for judicial review of adjudicator's dismissal of grievances for lack of jurisdiction -- Early in 1989 applicants signing letters of offer to participate in 7 1/2 month air traffic control training program, during which time not considered Public Service employees -- Upon successful completion would be offered appointment as air traffic control trainees, becoming employees upon reporting to unit/school for qualification phase -- Understood during qualification phase would have to undergo Visual Flight rule training -- Late in 1989 training program revised such that trainees required to undergo Instrument Flight Rule (IFR) training -- After commencement of qualification phase applicants signing agreements would be on probation and would be released if failed IFR training -- After commencement of IFR training again signing similar agreements -- Applicants failing IFR segment and rejected on probation -- Arguing initial offer only requiring completion of trainee phase and subsequent modifications unenforceable -- Adjudicator finding original agreement between grievors and employer independent contract not subject to provisions of Public Service Employment Act -- As aware would be on probation, and terms thereof prior to appointments, subject to probationary period as provided in Public Service Employment Act, s. 28(3) -- Also as employer acted in good faith in rejecting applicants for failing IFR training segment, adjudicator holding lacked jurisdiction to hear grievances -- Applicants arguing at time of appointments not probationary employees pursuant to terms of contract entered into with employer prior thereto -- Probationary requirement set out in s. 28(3) not displaced by contractual agreement between employer and person not employee of Public Service -- S. 28 speaking in mandatory terms as to appointments being on probationary basis -- Waiver permitted only in case of appointments from within Public Service -- Public Service Staff Relations Act, s. 57(2)(b) prohibiting agreement to waive any term or condition of employment established pursuant to any Act -- If union and employer so restrained from contracting out of mandatory term of employment, private contractual arrangement between employer and person outside Public Service without legal effect -- Application dismissed -- Public Service Employment Act, R.S.C., 1985, c. P-33, s. 28 -- Public Service Employment Regulations, C.R.C., c. 1337, s. 28 -- Public Service Staff Relations Act, R.S.C., 1985, c P-35, s. 57.