Federal Board Has Jurisdiction Over Termination Grievance Despite Suspension Becoming Moot

Date: 20260216 File : 568-02-54098 XR: 566-02-48690 and 52580 Citation: 2026 FPSLREB 15 [NAME] and Employment Board Act and [NAME] Act Before a panel of the [NAME] and Employment Board [NAME] Applicant and [NAME] ( [NAME] ) Respondent Indexed as [NAME] v. [NAME] ([NAME]) In the matter of an application for an extension of time referred to in section 61(b) of the [NAME] Before: [NAME], a panel of the [NAME] and Employment Board For the Applicant : [redacted] For the Respondent : [redacted] ADVANCE \y 657 Decided on the basis of written submissions, filed December 19, 2023, January 22 and February 5, 2024, and April 10 and 16 and June 19, 23, 25, and 26, 2025 .

REASONS FOR

DECISION I. Introduction [ 1 ] This decision addresses preliminary objections to the [NAME] and Employment Board’s (“the Board”) jurisdiction to hear two grievances. The first grievance relates to a suspension without pay pending an investigation. The second grievance concerns a subsequent termination, which was applied retroactively to the date of the suspension. [ 2 ] The objections are granted in part. Since the termination was applied retroactively to the date of the suspension, the suspension became moot, as does the objection attached to it. However, making the termination retroactive to the beginning of the suspension merged what were initially two distinct measures into a single measure. As such, given that the suspension was properly before the Board, the termination of employment resulting from the suspension’s conversion into the termination falls within the Board’s jurisdiction. [ 3 ] At the relevant time, the grievor, [NAME], was employed by the [NAME] (“the employer”). He was the subject of complaints based on allegations of sexual assault that allegedly occurred outside the workplace. On May 18, 2023, the employer suspended him without pay, pending an investigation. On May 14, 2024, when the investigation concluded, the employer terminated his employment, retroactive to the date of the suspension. [ 4 ] Both the suspension and the termination grievances were referred to adjudication under s. 209(1)(b) of the [NAME] Act (S.C. 2003, c. 22, s. 2; “ FPSLRA ”) as “… a disciplinary action resulting in termination, demotion, suspension or financial penalty …”. However, while the suspension grievance was filed as part of the grievance process within the prescribed time limits, the termination grievance was filed late and was referred to adjudication beyond the required deadlines. [ 5 ] The employer raised the following objections to the Board’s jurisdiction. · The Board lacks jurisdiction to hear the suspension grievance because the suspension was administrative and not disciplinary. · The suspension grievance is moot because the termination was backdated to the first date of the suspension. · The termination grievance, since it was filed and referred to adjudication outside the time limits, is barred and cannot be heard. In addition, as the suspension is moot, no live issues remain before the Board.

II. Objections against the suspension grievance [ 6 ] The employer’s objections to the suspension grievance are twofold. First, it argued that the suspension was an administrative measure and that it did not constitute a matter that could be heard under s. 209(1)(b) of the FPSLRA . Second, it maintained that that grievance is moot because the termination was applied retroactively to the first day of the suspension. [ 7 ] The employer cited a number of decisions, including [NAME] v. Deputy Head ([NAME]) , 2015 PSLREB 16, [NAME] v. Deputy Head ([NAME]) , 2011 PSLRB 45, Canada (Attorney General) v. [NAME] , 2007 FC 1176, and Canada (Attorney General) v. [NAME] , 2008 FC 606, stating that when a suspension is administrative rather than disciplinary, the Board is without jurisdiction. It further argued that the fact that the suspension was without pay is not, on its own, sufficient to conclude that it was disciplinary. [ 8 ] The grievor disputed it, arguing that the suspension without pay was disguised discipline. He contended that the employer’s intent was to punish his alleged behaviour. [COMPANY]. v. [NAME] ., 1989 CanLII 9391 (ON LA), the grievor submitted that a decision that deprives an employee of income is itself punitive and therefore disciplinary unless it is reasonable on the employer’s part. [ 9 ] In addition, the grievor submitted that because the suspension without pay resulted in a denial of wages and so had a punitive effect, it had to have been imposed in accordance with the [NAME] criteria (see [NAME] v. [NAME] (Solicitor General Canada - Correctional Service) , 2002 PSSRB 9). He argued that the [NAME] criteria were not assessed and that if they were, the employer continued to deny him the procedural fairness to see and respond to them. [ 10 ] Further, the grievor rejected the employer’s argument that because the termination was backdated to the beginning of the suspension, the suspension grievance became moot. He argued that the termination was a distinct disciplinary action, with separate legal consequences and potential remedies. He took the position that the termination must be independently reviewed and that it cannot be rendered moot by procedural overlap.

III. Objections against the termination grievance [ 11 ] The employer raised three procedural objections to the termination grievance. [ 12 ] First, it maintained that the termination grievance was presented beyond the 25 days required by the relevant collective agreement. Second, it contended that the grievance was also referred to adjudication outside the 40 days required by the [NAME] (SOR/2005-79; “the Regulations ”). Third, it argued that because the termination grievance was filed and referred to adjudication outside the required time, it cannot be heard, and since the suspension grievance is already moot, then there are no live issues before the Board. [ 13 ] In response, the grievor argued that any delay was minimal and justifiable, particularly given the employer’s retroactive application of the termination date, which created ambiguity as to when the cause of action arose. The grievor maintained that the grievance was filed promptly upon receiving clear notice of the termination. [ 14 ] In his response, the grievor applied for an extension of the prescribed time limits, relying on the [NAME] v. [NAME] (Public Works and Government Services Canada) , 2004 PSSRB 1. [ 15 ] Section 61(b) of the Regulations provides that the Board may extend the time prescribed in a collective agreement for the presentation of a grievance at any level of the grievance process or the referral of a grievance to adjudication, on the application of a party, in the interest of fairness. [ 16 ] In the alternative, the grievor asserted that the limitation period should have begun on the date on which the termination was clearly communicated, not the retroactive date that the employer applied. Referring to [COMPANY] v. [COMPANY] of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada Local 552 , 2012 ONCA 482, the grievor submitted that the Court of Appeal for Ontario observed that strict adherence to grievance timelines is required unless the relevant collective agreement or legislation provides discretion to extend them. He argued that ambiguity in the employer’s communication delayed triggering the limitation period, a factor that has been considered in other cases involving procedural fairness.

IV. Reasons [ 17 ] Upon a review of the materials on the record, I am satisfied that I can render a decision on the preliminary objections without holding an oral hearing (see s. 22 of the [NAME] and Employment Board Act (S.C. 2013, c. 40, s. 365)). [ 18 ] The Board has examined the concept of retroactive termination several times, and its decisions have consistently affirmed that an employer can use the start date of a suspension as the effective date of a termination, if it can establish that the facts upon which the termination was based existed as of the date chosen to give effect to the termination (see [NAME] v. Deputy Head (Department of Health) , 2022 FPSLREB 74 at para. 155; [NAME] v. Deputy Head (Department of Justice) , 2014 PSLRB 61 (upheld in [NAME] v. Canada (Attorney General) , 2015 FC 1175; and Canada (Attorney General) v. [NAME] , 2018 FCA 230 at para. 50). [ 19 ] The employer argued that the retroactive termination nullified the suspension as a standalone measure, rendering it moot. That argument is consistent with the case law cited above, and I see no reason to reach a different conclusion in this case. [ 20 ] However, the employer went further and argued that since the suspension became moot and the termination grievance was filed and referred to adjudication in an untimely way, the grievance has also been finalized. That argument must fail. There is still a live issue between the parties, which is properly before the Board. [ 21 ] By backdating the termination to the first day of the suspension, the employer consolidated the suspension and the termination into a unique and single disciplinary measure (see [NAME] ). The employer cannot have it both ways. If it chose to combine the suspension and the termination of employment into one decision that took effect on the first day of the suspension, then how could it at the same time argue that the termination grievance is untimely? [ 22 ] In this case, the termination and the suspension have become one sole decision that is deemed to have taken effect on May 18, 2023. The date on which the termination was formally communicated, namely, May 14, 2024, is no longer relevant. In addition, given that the suspension was properly before the Board, the termination that replaced the suspension falls within the Board’s jurisdiction for adjudication. [ 23 ] As I have decided that the Board has jurisdiction to hear the termination grievance, it is not necessary to consider the grievor’s extension-of-time application. For completeness, I note that I would also have granted the extension based on the criteria established in [NAME] . (from [NAME] v. [NAME] (Public Works and Government Services Canada ), 2004 PSSRB 1). [ 24 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

V. Order [ 25 ] The employer’ objections are granted in part. [ 26 ] The employer’s request to dismiss the grievance without a hearing is dismissed. [ 27 ] The employer’s objection alleging that the suspension grievance is moot is granted. [ 28 ] The employer’s objection alleging untimeliness in the termination grievance and asserting that no live issue remains before the Board is dismissed. [ 29 ] The matter will be scheduled for a hearing. The parties will be informed of the hearing date once it is determined. February 16, 202 6. [NAME], a panel of the [NAME] and Employment Board