Foster v. Canada ( Treasury Board )
T-1323-95
Joyal J.
20/8/96
10 pp.
Application for judicial review of Adjudicator's decision without jurisdiction to consider applicant's grievance on ground grievance extended beyond confines of Public Service Staff Relations Act-Applicant public servant with Department of National Defence for over 28 years-Convicted of two separate indictable offences and sentenced to five years and thirty days in correctional institution-Subsequently, employment terminated retroactively pursuant to Criminal Code, s. 748-Adjudicator held s. 748 resulted in automatic termination of employment, therefore without jurisdiction to hear grievance-Application dismissed-Applicant's employment as public servant automatically teminated-Applicant should not be able to hold open position by way of extended leave of absence, pending his release from prison-Contrary to intent of Criminal Code provision and patently unfair for replacement employee-Both employer and adjudicator left without discretion in matter, since established mechanism for dismissal in Federal Public Service not engaged, no termination action having been taken by respondent-Criminal Code, R.S.C., 1985, c. C-46, s. 748 (as am. by S.C. 1992, c. 22, s. 12; 1995, c. 22, s. 6)-Public Service Staff Relations Act, R.S.C., 1985, c. P-35.