PUBLIC SERVICE |
Labour Relations |
Herzig v. Canada (Department of Industry)
T-1-00
2001 FCT 39, McKeown J.
7/2/01
10 pp.
Application for writ of mandamus ordering respondents to reclassify applicants' positions as members of Trade-marks Opposition Board from PM-06 to LA-02--Issue whether Deputy Head's nominee actually made decision with respect to whether applicants' positions should be reclassified as LA positions--In affirmative, would be appropriate for Court to issue writ of mandamus compelling nominee to officially render such decision--Applicants filed grievance pursuant to PSSRA, s. 91--Grievance committee unanimously recommended reclassification as LA, but also, citing expired policy bulletin, that matter be referred to Department of Justice for consultation--Nominee followed recommendation and referred matter to Justice--Justice recommended rejection of reclassification, and nominee notified applicants of rejection--Application dismissed--Actually, grievance committee made two findings: positions should be reclassified, but mistakenly stated reclassification could not be done until Department of Justice had been consulted on matter--When nominee approved recommendation, approval applied to both recommendations--Nominee appreciated that there was no decision on matter until Justice had been consulted--Nominee erred in following expired policy bulletin providing for consultation with Justice, but error cannot be ignored--Nominee not functus as no decision made at this time--Instead approved recommendation to forward matter to Justice for consultation--Applicants have not established necessary grounds for granting mandamus--Under Classification Grievance Procedure, nominee has discretion to accept or reject recommendation of grievance committee--However, if nominee decided to reject matter, new decision must be personally approved by deputy head--Applicants have not established right to have decision sought by them issued and issued in manner and by person sought to be coerced--Nominee made no decision on grievance committee's decision, did not exercise discretion--Public Service Staff Relations Act, R.S.C., 1985, c. P-35. s. 91.