Terms and Conditions of Employment of Federal Public Servants
| Author | Christopher Rootham |
| Pages | 377-487 |
377
Terms and Conditions of
Employment of Federal
PublicServants
A. INTRODUCTION
This chapter concerns some of the terms and conditions of employment
for employees in the federal public service. It is beyond the scope of
this book, or probably any book, to prepare a complete description of
all the terms and conditions of employment of federal public servants.
For one thing, many of these terms and conditions are contained in
collective agreements and so will obviously dier from bargaining unit
to bargaining unit. For another, there are simply too many terms and
conditions to list. As the Supreme Court of Canada has put it:
The terms and conditions of employment of the federal government’s
quarter of a million current workers are set out in statutes, collective
agreements, Treasury Board directives, regulations, ministerial orders,
and other documents that consume bookshelves of loose-leaf binders.
Human resources personnel are recruited into the system, spend a
career attempting to understand it and die out of it.1
Rather than devalue the eorts of human resource personnel, who
“spend a career” learning to understand the terms and conditions of
employment, by attempting to summarize these terms and conditions in
a single chapter, this book will focus on some of the service-wide condi-
tions, as well as those that are, if not unique, then at least particularly
relevant to the public service. This book will also mention, in summary
378 | LABOUR AND EMPLOYMENT LAW IN THE FEDERAL PUBLIC SERVICE
only, some of the most frequently litigated terms and conditions applic-
able in the core public administration.
B. LEGAL NATURE OF TERMS AND CONDITIONS FOR
UNREPRESENTED EMPLOYEES
Approximately 10 percent of employees in the federal public service
are not represented by a bargaining agent.2 For represented employees,
their terms and conditions of employment are set out in various collect-
ive agreements. Unrepresented employees obviously do not have their
terms and conditions set out in collective agreements and must have
those terms and conditions set out elsewhere.
As explained in Chapter 2 of this book, the legal status of public ser-
vants has been a matter of some dispute. The Supreme Court of Canada
in a 1980 decision stated that a junior non-unionized employee could
sue the Government of Quebec for an employment-related debt in small
claims court. In so doing, the Supreme Court stated that this casual
employee was a “contract employee” and that it did not see “anything
preventing application of the ordinary law of contract” to that case.3
Even after that case, the nature of the relationship between the Crown
and public servants was still in doubt as it was not clear whether the
decision in Attorney General of Quebec v Labrecque applied outside
of junior, casual employees.
This doubt was meant to be resolved by the Supreme Court of Can-
ada in a 1999 decision, Wells v Newfoundland.4 In that case, Mr. Wells
was dismissed from his position as a member of the Public Utilities
2 According to internal statistics, there were 262,696 employees in the federal pub-
lic service in 2017 (excluding a handful of separate agencies for whom statistics
were not available), of whom 237,580 were represented by a bargaining agent:
Treasury Board of Canada Secretariat, “Population of the Federal Public Service,”
online: www.canada.ca/en/treasury-board-secretariat/services/innovation/human-
resources-statistics/population-federal-public-service.html, and Federal Public
Sector Labour Relations and Employment Board, 2018–2019 Annual Report
(2019) at 35, online (pdf): https://pslreb-crtefp.gc.ca/en/about-us/annual-reports/
2018-2019/documents/FPSLREB-AR_2019.pdf. By way of comparison, the union
density rate for the public sector (including Crown corporations and government-
funded establishments such as schools, universities, and hospitals) is a little over
75percent (precisely 75.5 percent in 2017): Statistics Canada, “Union Status by
Industry,” online: www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=1410013201.
Terms and Conditions of Employment of Federal PublicServants | 379
Board when the Newfoundland legislature reconstituted the board
with fewer members. Mr. Wells was appointed to hold oce during
good behaviour until the age of seventy — in fact, he was dismissed
well before his seventieth birthday. Therefore, he claimed damages for
unjust dismissal. The Supreme Court of Canada upheld his claim for
damages and in so doing confirmed that senior public servants and
public oceholders have a contractual relationship with their employer.
The Court stated:
In my opinion, it is time to remove uncertainty and confirm that the
law regarding senior civil servants accords with the contemporary
understanding of the state’s role and obligations in its dealings with
employees. Employment in the civil service is not feudal servitude.
The respondent’s position was not a form of monarchical patronage.
He was employed to carry out an important function on behalf of the
citizens of Newfoundland. The government oered him the position,
terms were negotiated, and an agreement reached. It was a contract.
As Beetz J. clearly observed in Labrecque, supra, the common law
views mutually agreed employment relationships through the lens of
contract. This undeniably is the way virtually everyone dealing with
the Crown sees it. While the terms and conditions of the contract may
be dictated, in whole or in part, by statute, the employment relation-
ship remains a contract in substance and the general law of contract
will apply unless specifically superceded by explicit terms in the statute
or agreement.5
There are exceptions to this rule: judges, ministers of the Crown,
and other people who fill constitutionally defined state roles do not have
their terms and conditions dictated by contract but by “the terms and
conventions of the Constitution.”6 For example, the appointment of an
ambassador remains an appointment purely at pleasure and, therefore,
an ambassador has no claim for breach of contract when their term of
oce is terminated prematurely.7
The Supreme Court of Canada confirmed this result in its 2008
decision in Dunsmuir v New Brunswick.8 In that case, a public servant
was dismissed from his employment on a “without cause” basis as a
5 Ibid at paras 29–30.
6 Ibid at para 31.
7 Gagliano c Canada (Procureur général), 2009 QCCS 3001, a’d 2011 QCCA 894.
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