Workforce Adjustment Directive – Education Leave

Background

On April 30, 2012, the grievor received an official work force adjustment status letter. As there was no guarantee of a reasonable job offer given, the grievor was presented with the three transition Options, as provided for in the Work Force Adjustment Directive (WFAD). The grievor chose 6.3.1 Option C (ii) - Education Allowance with a leave without pay (LWOP) for a maximum of two years. The grievor is claiming the Department misinterpreted and misapplied the WFAD, as the LWOP was approved for only a 12 month period. The Department has since reissued an amended letter, approving an extension to the LWOP for the duration of her education program of up to two years, provided proof of registration from a learning institution within 12 months of the start of the leave period is submitted.

Bargaining Agent Presentation

The Bargaining Agent representative noted that it was the letter dated August 30, 2012, which gave rise to the grievance, as it misinterpreted and misapplied the WFAD. Although the letter confirmed the grievor's choice of Option 6.3.1 C (ii), it only granted 12 months of LWOP despite the grievor's entitlement to a maximum of two years of LWOP, and it also stipulated the requirement that once the grievor provided proof of registration at a learning institution, that there would be a lay off after 12 months. The Bargaining Agent representative noted that both statements are in contradiction to the explicit language of the WFAD.

The violation of the explicit rights of the grievor then continued with the letter issued by the Department on September 27, 2012. The letter introduced two more concepts which were not found in the Directive: "extension" of the LWOP, and reference to an "educational program." The WFAD does not allow for the extension of a LWOP, nor does it require employees to participate in an "education program" as a condition for the leave. The Bargaining Agent representative noted that as per Rule 15 of the NJC By-Laws, the Department cannot add language to the WFAD nor can it create conditions of application not found in said document. The Bargaining Agent representative agreed that though the Department's approval of the LWOP was required, the question at hand was whether a LWOP request can be denied as submitted, and if its duration is determined by the Department.

The Bargaining Agent representative claimed that upon request by an opting employee, the established departure date must be delayed by the specific LWOP period requested, up to a maximum of two years. The parties who developed the WFAD explicitly did not include any terminology that would give departments any discretion when applying this leave. Therefore, the Bargaining Agent representative argued that though an employee requires the approval of the Department, the Department must grant the LWOP for the period specified by the employee (with the exception of Section 6.3.5 – Employees choosing Option C (ii) who have not provided their department or organization with proof of registration from a learning institution 12 months after starting their leave without pay period will be deemed to have resigned from the core public administration, and be considered to be laid off for purposes of severance pay).

In conclusion, the Bargaining Agent representative maintained that under Section 6.3.1 C (ii) of the WFAD, the following rights should have been accorded to the grievor: two years of LWOP; $11,000 of reimbursement for receipted expenses from a learning institution; and TSM payable over a maximum of two years. The Bargaining Agent representative stated that as the Department misinterpreted and misapplied the WFAD, the grievance must be upheld and that the corrective measures be granted.

Departmental Presentation

The Departmental representative noted that the Employer's interpretation of both Section 6.3.1 and 6.3.5 is that a LWOP period is authorized based on the length of time of the course or program, or if none is provided, allow a 12 month LWOP period at the beginning of the leave. Should the employee provide proof of registration for a longer period than the 12-month, the leave shall be extended. The grievor however, requested that a two year period of LWOP be authorized at the outset of the leave without providing any proof of registration to cover the two year period.

It was noted that by mutual agreement, the Bargaining Agent and the Department agreed to bypass the first level grievance and refer directly to the second level. The grievance was denied at the second level, however the Department noted that an amended letter would be issued to the grievor confirming that the LWOP period could be extended for the duration of the education program, up to a maximum of two years, providing that the grievor submitted a proof of registration from a learning institution within 12 months of the start of the LWOP period. This letter was issued September 27, 2012.

The Employer's interpretation of the WFAD is that the education allowance Option C (ii) LWOP is for the purpose of attending a learning institution to help employees acquire new skills to facilitate their placement within or outside the public service. The period of leave should coincide with the learning program. Section 6.3.5 should be read in conjunction with 6.3.1 Option C (ii), as it specifies the employee's obligation to provide proof of registration within the first 12 month period otherwise the employee will have been deemed to have resigned from the Public Service.

Based on this interpretation, the Department took the approach that if the grievor had not provided any proof of registration at the beginning of the LWOP, a 12 month LWOP would be automatically authorized with a possibility of extension. The extension was dependent upon receiving proof of registration before the end of the 12 month LWOP period. This interpretation is in line with Section 6.3.5, which guides departments in the application of Option C (ii). The Department's interpretation was also confirmed by the Treasury Board Secretariat.

Allowing a two year LWOP at the beginning of the leave without any proof of registration, in the Department's opinion, would have gone against the intent of the Directive as employees could have used the LWOP period for any purpose other than to attend a learning institution.

Therefore in conclusion, the Departmental representative recommended that the Committee confirm their above mentioned interpretation of the WFAD and deny the grievor's grievance as well as the requested corrective measures.

Executive Committee Decision

The Committee concluded that the grievor was not treated within the intent of the Directive, only insofar as the letter of August 30^th, 2012 improperly advised the grievor that there would be an automatic lay off within 12 months of the start of the leave without pay. The grievor should have been advised that 24 months of LWOP was available, provided she complied with Section 6.3.1 C (ii) was complied with. This was corrected in subsequent correspondence to the grievor and therefore no further corrective action is required.