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A-913-80
The Queen (Applicant)
v.
Barbara J. Robb (Respondent)
Court of Appeal, Pratte and Ryan JJ. and Kerr D.J.—Ottawa, September 16, 1981.
Judicial review — Public Service — Respondent was required to pay for a shortage of cash resulting from the performance of her duties pursuant to the terms of her employment — No allegation of fault or negligence — Respondent filed a grievance disputing her obligation to make up the shortage — Whether grievance relates to a disciplinary action — Whether grievance could be referred to adjudication under s. 91(1) of the Public Service Staff Relations Act — Application allowed — Public Service Staff Relations Act, R.S.C. 1970, c. P-35, s. 91(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
Walter Nisbet, Q.C. and Harvey A. Newman
for applicant.
John B. West for respondent.
John E. McCormick for Public Service Staff
Relations Board.
SOLICITORS:
Deputy Attorney General of Canada for applicant.
Perley-Robertson, Panet, Hill & McDougall, Ottawa, for respondent.
The following are the reasons for judgment delivered orally in English by
PRArrE J.: The sole problem raised by this section 28 application is whether the respondent's grievance could be referred to adjudication under subsection 91(1) of the Public Service Staff Rela tions Act, R.S.C. 1970, c. P-35.
The respondent's grievance clearly does not relate to the application or interpretation of a collective agreement or an arbitral award. The question, therefore, is whether it relates to discipli nary action resulting in discharge, suspension or a financial penalty.
The facts on record may be easily summarized. The respondent was employed by the Post Office Department as a wicket clerk in a post office. At the end of a day of work, she sustained a shortage of cash in the amount of $300. The employer later requested her to pay that amount, not because of any fault or negligence on her part but on the sole ground that under the terms of her employment she had the obligation to make up any shortage of money resulting from the performance of her duties. The respondent took the position that, in the circumstances, she had no such obligation. However, in the end, she nevertheless paid the amount of $300 and filed a grievance claiming its reimbursement.
In my view, the sole issue raised by the respond ent's grievance is whether, in the circumstances, she had the obligation to compensate her employ er. As I see it, the grievance does not relate to a disciplinary action since it is clear that the employ er never took any steps to punish or blame the respondent and never even suggested that she had acted negligently or improperly. That grievance, in my opinion, merely relates to an action taken by the employer to incite the respondent to perform what the employer perceived as her obligation under her employment; it could not, therefore, be referred to adjudication.
I would, for these reasons, grant the application
and set aside the decision under attack.
* * *
RYAN J. concurred.
* * *
KERR D.J. concurred.
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