A-82-80
The Queen (Applicant)
v.
John H. Boyachok (Respondent)
Court of Appeal, Heald and Urie JJ. and Kerr
D.J.—Ottawa, June 10, 1980.
Judicial review — Labour relations — Collective agreement
provided for an employee being able "to work a compressed
work week in a period other than in a 7 day period" with "the
concurrence of his employer" — Employer agreed to arrange
ment at first, but later withdrew that concurrence — Whether
Adjudicator erred in questioning validity of reasons given by
employer for revoking its concurrence — Section 28 applica
tion allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Public Service Staff Relations Act, R.S.C. 1970, c.
P-35, s. 91.
APPLICATION for judicial review.
COUNSEL:
W. L. Nisbet, Q.C. for applicant.
M. Wexler for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Professional Institute of the Public Service of
Canada for respondent and on its own behalf.
Public Service Staff Relations Board on its
own behalf.
The following are the reasons for judgment of
the Court delivered orally in English by
HEALD J.: In our view, the decision of the
Adjudicator cannot be allowed to stand. The
respondent's grievance requested the following
relief: "That I be allowed to work a compressed
work week in a period other than in a 7 day
period." (See Case, page 1.) This grievance was
refused at all levels by the employer and then
proceeded to adjudication pursuant to section 91
of the Public Service Staff Relations Act, R.S.C.
1970, c. P-35. In our view, all that was required of
the Adjudicator for a determination of this griev
ance was the application of article 17.04 of the
relevant collective agreement to the facts in this
case. That article provided for an employee in the
position of this respondent being able "to work a
compressed work week in a period other than in a
7 day period" but only with "the concurrence of
his employer". In this case, it is common ground
that the employer, while at first agreeing to this
arrangement on a trial basis, later withdrew that
concurrence.
In our view the Adjudicator erred in questioning
the validity of the reasons given by the employer at
all levels for subsequently revoking its concur
rence. Once it was established that the employer
no longer concurred, then the employee became
disentitled to the relief asked for by him. This was
the only issue requiring the Adjudicator's decision
and the matter should have been disposed of by
him on this basis.
In view of this conclusion, it is unnecessary for
us to consider the validity of the views expressed
by the Adjudicator with respect to his interpreta
tion of the collective agreement. We should say,
however, that we have grave doubts as to the
correctness of those views. For all of the above
reasons the section 28 application is allowed and
the Adjudicator's decision dated February 4, 1980
is set aside.
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