December 18, 2013
28.4.615
Background
Due to government-wide expenditure reductions, it was determined that the services of the grievor's position were no longer required. Therefore on June 26, 2012, a letter was received indicating the grievor's work force adjustment opting status and was presented with the three transition options. The grievor is contesting the Employer's opting decision, claiming it is a misinterpretation and a misapplication of the Work Force Adjustment Directive (WFAD), as the letter did not indicate one of the specified reasons as defined in the WFAD for declaring an employee as surplus.
Bargaining Agent Presentation
On April 11, 2012, a letter was received indicating that the grievor was an affected employee, whose services may no longer be required due to a work force adjustment situation. The grievor then went without any further communications or discussions with the employer until June 26, 2012, when a letter was received advising the grievor that services would no longer be required due to the government-wide expenditure reductions. The Bargaining Agent representative noted that the WFAD defines WFA as a situation that occurs when a deputy head decides that the services of one more indeterminate employees will no longer be required beyond a specified date because of: lack of work; the discontinuance of a function; a relocation in which the employee does not wish to relocate; or an alternative delivery initiative. Therefore stating that the grievor would no longer be required due to government-wide expenditure reductions was an improper reason, and was a misapplication of the WFAD.
After the employer issued the June 26, 2012 opting letter, a consultant was hired to review the work being done by the branch. Although each employee was asked to write their job description, the grievor was never part of the process. The Bargaining Agent representative argued that it is established in law, that an obligation of good faith and fair dealing in the manner of termination forms part of the employment relationship. This includes, but is not limited to, being candid, reasonable, honest and forthright with the employees. In this case, the grievor was the only employee that was not requested to be involved in providing the employer with information about work at any time, both before and during the affected status, as well as after the opting status.
In conclusion, the Bargaining Agent representative noted that the collective agreement and the WFAD had been violated in several ways. Firstly, the termination of the job was not based on a reason provided for by the WFAD or the PSEA. Secondly the grievor had been treated differently from the other employees as shown by the hiring of the consultant and in excluding the grievor in the job description exercise. The lack of action demonstrates a differential treatment between the grievor and the other employees in the Branch regarding the department's "government-wide expenditure reductions exercise." And finally, the Bargaining Agent representative submitted that along with the violations of the WFAD, the department did not meet its' obligation of good faith and fair dealing in the manner of the grievor's termination. Therefore, the grievance must be upheld and the corrective measures be granted.
Departmental Presentation
The Departmental representative maintained that the argument that the June 26, 2012 letter did not indicate one of the specified reasons for declaring an employee is surplus is incorrect. On March 30, 2012, the Deputy Head communicated to all employees that based on the government priorities, the department would be experiencing ongoing reductions and positions may be affected. The department complied with its obligations to conduct effective human resource planning to minimize the impact of the WFA situation by managing staffing levels through attrition and by delaying filling key positions that had become vacant. The grievor's position was the only one in the part of the sector impacted by WFA. On April 11, 2012, after the announcement from Sector Management, the grievor met with the Director General (DG) of the Branch and an HR Advisor. At this meeting, the DG explained to the grievor the rationale for the decision, provided a copy of the affected letter and an information kit for affected employees. On June 26, 2012, another letter was received from the DG informing the grievor that due to the government-wide expenditure reductions, it was determined that "the services of the position were no longer required." The Departmental representative explained that the objective of this meeting was to inform the grievor that from the April 11, 2012 announcement, the department had attempted to place affected employees in vacant positions through right fit and matching processes. For those where it was not possible to find an employment opportunity, they were provided with their opting or surplus letters. The Bargaining Agent representatives were informed of the WFA situation, through the departmental WFA union-management committee convened to discuss and resolve the situation. The department also offered a number of various WFA information sessions to support and assist all affected employees.
The Departmental representative emphasized that the grievor's position was the only one in the part of the organization impacted by WFA, and the position was not similar to the other positions which remained. The discontinuance of the function only impacted the grievor's position. The work consisted of scanning media and providing media summaries as well as maintaining basic statistical information. As the service of media information is available from media summaries and a statistical information database available to all of the organization's employees, there was therefore no need to retain one position to continue the provide this service. The complexity of the projects and studies, and the intellectual effort required, differentiated the nature of the work between the grievor's position and other positions. Further to this, there were significant differences between the minimum education and knowledge qualifications, which the grievor did not meet for the remaining positions.
In conclusion, the Departmental representative recommended that the Committee deny the grievance as well as the requested corrective measures, as there was no misinterpretation or misapplication of the WFAD. The employee was well informed as to the reasons for the WFA status, and every attempt was made to ensure continuous employment.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Work Force Adjustment Committee which concluded that the grievor had been treated within the intent of the Directive. There was no evidence of the Employer having misinterpreted or misapplied the Directive in regards to the June 26, 2012 letter. As well, the grievor was informed, as per the sections 1.1.6 and 1.1.8 of the Work Force Adjustment Directive, that the services were no longer required. As such, the grievance is denied.