Reasonable Job Offer, Salary protection and Roles and Responsibilities

The employee grieved that he was not considered for an alternate "position" as defined by the Work Force Adjustment Directive (WFAD) which could have constituted a Reasonable Job Offer and that Salary Protection was not provide to him; he also grieved that he was the victim of a disciplinary demotion and victim of discrimination and harassment. The grievor sought the application of section 5.1 of the WFAD, namely salary protection; that no attempt be made as a result of the filing of this grievance to cancel his recent job offer or abolish his position; and that he suffer no detriment as a result of this grievance.

In fall 1993, management advised the employee verbally of its intention to abolish his position because of a reorganization of its format and a readjustment of its workforce. As of that time he was regarded as an affected employee and the regional office began marketing the employee within the region where he was located and with other departments for positions at the same level.

The employee had indicated that his mobility was limited but the region continued to inform him of positions outside his area in order to increase the possibility of his obtaining a position at his substantive level. In the meantime the employee was offered a secondment to the position of advisor and held this position until the office was closed on April 1, 1996.

In June 1996, as part of the reorganization of the Department, the regional strategy on classification and staffing of positions was published. Positions at a level equivalent to that of the employee were not part of this strategy and he was therefore not given priority consideration for one of the "expert" positions with salary protection.

On September 9, 1996 the employee received a letter from his director officially informing him of his status as an "affected" employee as of that date and management's intention to declare him "surplus" as of March 29, 1997. On September 25, 1996 the employee discussed his concerns with management. It mentioned that for the time being there was only one position for which he could be considered, but it was three levels lower. The employee indicated he would like to be considered for this position, despite the reduction in salary. Management undertook not to make the appointment before the date on which he would ordinarily have been declared surplus so as to allow the employee to continue being considered for a position at his level and to maintain his salary as long as possible. On October 22, 1996 the employee therefore accepted a transfer to this position and signed a letter of offer to this effect. He was therefore not declared surplus.

The Bargaining Agent representative explained to the Committee that the employee was informed that there were three vacant positions in cities A, B and C. Management offered to pay his expenses and those of his son to visit those locations. The employee confirmed his interest for the position in city "C". On October 20, 1993 the employee met with the director in city "C". The latter told him that most young people had left the area and those who remained were problem youth and since he had a 18 year old son, he should not accept the position. The representative explained to the Committee that on October 26, 1993 the employee informed management that he did not wish to be considered for the position in city "C". The employee was told by his manager that at that time there were vacant positions in his region, that he would not offer him those positions and he should not be concerned, as he would offer him something else in the region. The representative submitted to the Committee, if the employee did not have the skills for a position in his region why pay his expenses and those of his son for a similar position in city "C"? He added that the employee had indicated he was not available, but not that he was not qualified.

The Bargaining Agent noted that in the paper on the strategy for classification of positions, at page 4, it states: "Situations will arise that will require salary protection". He added that the letter of September 9, 1996 mentioned that the employee would be given surplus status as of March 29, 1997. The employee thus had to take this notification seriously. The job offer made to the employee mentioned that his appointment took effect on March 31, 1997, and thus after he had been declared surplus. The representative submitted that as there had never been any notice that his employer no longer intended to declare him surplus, he therefore had the status of a surplus employee at the time his appointment took effect and was entitled to salary protection.

The representative explained to the Committee that on page 3 of the strategy for classification that priority would be given to affected employees at the same level before proceeding to salary protection or offering promotions. The representative noted that the salary protection requested by the employee was no more unreasonable than keeping former employees at a higher level for a six-month period, when those positions had been abolished and it was not clear what they had done.

In short, the Bargaining Agent representative submitted that the employee was qualified for the position in city "C" but according to management not for another position in his region. He was interested in certain positions but the director always short-circuited his efforts. Since the arrival of the director the employee has always had problems keeping a position or obtaining one. The process of eliminating the employee's position began in fall 1992 and since that time attempts to relocate him in another position have been unsuccessful.

The Departmental representative maintained that management's decision not to consider the appointment of the employee to an expert position with salary protection was justifiable. The regional strategy for the classification and staffing of positions had laid down the order in which employees would be considered for those positions. Regional management had consulted the union and the Public Service Commission before implementing this local strategy. The employee did not meet the tests laid down for consideration for consultant positions.

The Departmental representative pointed out that management had acted reasonably in this matter. As the affected department, one of the region's concerns was to place its employees in positions at the same level so far as possible. She stated that management had also acted correctly in refusing to grant the employee salary protection. She pointed out that the primary reason was that when the employee accepted the relocation to the new position he was an "affected" employee only, not a surplus employee. Under section 5.1 of the Work Force Adjustment Directive, only surplus employees and laid-off persons are entitled to salary protection.

In her submission the Departmental representative went on to say that the purpose of offering the new position to the employee was to enable him to maintain his employment link with the department and avoid involuntary lay-off or being made a reasonable offer elsewhere than in his region when he was declared surplus. The employee signed the letter of offer offering him the position at a lower level. The letter clearly indicated his salary, the maximum in the scale. This letter constituted a contract of employment.

The Departmental representative submitted that management had acted in good faith in this matter. There was no evidence on the record that the employee had been subject to disciplinary demotion or been a victim of discrimination or harassment. On the contrary, the record indicated a situation in which management had done its best to ensure the employee would be informed about all possibilities of employment at his level.

In summary, the Departmental representative submitted that the record indicated the effort made by this department to find the employee a reasonable group and level. He was considered for nine positions without success. The employee showed no interest in six of those positions and did not show he had made any effort to find employment by himself. She stated that the department had complied with the Work Force Adjustment Directive and that the department had never been declared surplus and had himself not requested it. She closed by submitting that the department maintained that the Committee lacked jurisdiction to rule on this point as the employee had not been declared surplus.

The Executive Committee considered and agreed with the Work Force Adjustment Committee report which concluded that no evidence was supplied which indicated that the grievor had been declared, or that he requested to be declared, surplus. Therefore, the grievor was not subject to the provisions of the Work Force Adjustment Directive. The Committee also agreed that it did not have jurisdiction to deal with the other issues raised in the grievance.