July 12, 2013
28.4.611
Background
On April 4, 2012, the grievors received letters officially notifying them of their work force adjustment opting statuses, indicating that their services would no longer be required. As a result of restructuring within their branch, the grievors' positions (EC-07) were eliminated due to the discontinuance of their functions. The grievors are claiming it is disguised reclassification, as their functions were not discontinued, but redistributed within the agency, to existing positions.
Bargaining Agent Presentation
The Bargaining Agent representative noted that though management has the right to identify positions which are no longer required and should be subject to the provisions of the WFAD, this must be done while respecting employees' rights outlined in the Directive. The Directive has two primary objectives: firstly, to maximize employment opportunities for indeterminate employees affected by WFA situations, ensuring that wherever possible, alternative employment opportunities are provided to them; and secondly, to allow employees for whom the Deputy Head cannot provide the guarantee of a reasonable job offer to have access to transitional employment arrangements.
In the letters given to the grievors, it was noted that the reason for the decision was that their services as senior analysts were no longer required due to the discontinuance of their functions. Therefore, their functions were eliminated. However, the Agency has maintained through the process that the functions of the EC-07 positions were not in fact eliminated, but rather reassigned to other positions at the EC-06 and EC-08 group and levels. Therefore, it cannot be argued that this situation meets the definition of a work force adjustment situation, based on the discontinuance of a function, as the functions were never discontinued. As such, the grievors were not treated within the intent of the Directive.
It was noted that the Agency did not take all the necessary steps in making the decision to identify the three EC-07 positions as surplus. The Agency did not ensure the existing EC-06 and EC-08 positions were still adequately classified, now that the duties of the EC-07 positions had been added. Further to this, the Agency did not ensure that the incumbents of the new positions were indeed still qualified. A Selection of Employees for Retention or Lay-Off (SERLO) process was required to ensure that the most qualified employees were retained. The Agency however, claimed that a SERLO was not required as SERLOs can only involve employees of the same group and level, whereas in this instance, all the EC-07 functions were eliminated. The Bargaining Agent representative argued that the Agency's position on the SERLO would be true, had the functions truly been eliminated, not simply reassigned.
The Bargaining Agent representative also noted that new work descriptions for the EC positions which had absorbed the 07 functions, had still not been finalized by the Agency, for at least four months following the decision to declare the grievors as opting. The Bargaining Agent questioned how it could have been determined that the grievors did not meet the requirements of the new EC positions when these positions had not yet been evaluated objectively to determine their true level.
It was also raised that the Agency had maintained the employment of determinate staff, as well as promoted them within the EC group, yet had declared their indeterminate employees as opting. The WFAD ensures for certain protections for indeterminate employees, such as retraining, salary protection, and alternation to maintain continued employment. However, the grievors were not extended these protections.
The Bargaining Agent representative concluded that the grievors were not treated within the intent of the Directive, and it is requested that the grievances be upheld. He maintained that the reason the grievors were subject to WFA, was due to the lack of effort by the Agency to continue their employment, as well as the Agency's preference to maintain determinate employees over indeterminate staff.
Departmental Presentation
The Agency representative explained that in 2011, departments and agencies were requested by the Federal Government to prepare to reduce their budgets by 5% and 10%. In April 2012, the reduction was confirmed to be 10%. As a result of the 10% budget reduction, the Agency streamlined their work and combined lines of business, as well as reorganized and reduced the workforce. The branch in which the grievors were working was restructured, and its responsibilities were redistributed to two other existing branches. As a result of this redistribution of responsibilities, the resources allocated to these activities had also been significantly reduced, resulting in the deletion of positions at the EC-07 group and level.
The Agency noted that, according to Article 64(1) of the PSEA, where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function, the deputy head may, in accordance with the regulations of the Public Service Commission (PSC), lay off the employee. Therefore, following the guidelines provided by the PSC and TBS for WFA situations (Guide on the selection of employees for retention or lay-off), when all positions at the same group and level with the same work descriptions are deleted, all the incumbents involved are declared surplus, as per the WFAD. The Agency therefore deleted the required EC-07 positions. Management met with all opting employees, and provided them with letters outlining the Agency's decision. Information sessions were given, information was posted on the intranet, and counseling services with human resources were made available to all affected employees.
Further to this, in preparation for the 10% reduction implementation, the Agency created a Joint Union-Management Committee in February 2012 to monitor the application of the WFAD, as well as to optimize the employment opportunities for the affected indeterminate employees. The Committee met 14 times from February to September 2012, and all Committee members confirmed that they were satisfied by the work carried out by the Committee. 81 of the 144 affected employees were able to maintain their employment, either within the Agency, or with another department.
In conclusion, the Agency maintains that the grievors positions were not reclassified, that the grievors were treated within the intent of the WFAD, and that the grievance should be denied. A review of the administrative structure, paired with the budgetary review, required the Agency to reorganize their work. Following an in-depth analysis of the organization of the work, the three EC-07 positions were deleted, and their principal activities were divided into two other existing lines of business. The Agency representative noted that the increased responsibilities absorbed by the other EC positions did not change their classification.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Work Force Adjustment Committee which concluded that the grievors had been treated within the intent of the Directive. It was noted that once the reassignment of duties to other branches was completed, there were no responsibilities remaining for the grievors' positions, thus representing a discontinuance of the EC-07 function as a whole and the elimination of the positions. As such, the grievances were denied.