December 8, 2014
28.4.625
Background
The grievor registered for the Department's alternation program in an effort to alternate with an opting employee. Three employees at the Department became opting employees due to lack of work. Two of the employees submitted their applications for a possible alternation with the grievor, however after the delegated manager concluded the assessment of these two employees, it was determined that neither met the qualifications for the grievor's position. The third opting employee submitted an application to alternate with the grievor, but also did not meet the qualifications. The grievor is grieving the Department's decision to deny the requested alternation. The grievor is alleging that the Work Force Adjustment Directive (WFAD) was not applied appropriately; that the statement of merit was not indicative of the work being performed and that the opting employees were unfairly assessed.
Bargaining Agent Presentation
The grievor occupied a Director position. He was one of five employees in the directorate. All five employees reported to the Director General. Three (including the grievor) of the five employees had generic job descriptions. The generic job descriptions were adopted to facilitate the mobility of work. At the time that the generic job descriptions were adopted, the employees were advised by management, that they were fit to perform the duties of all positions in the same classification and level, including the grievor's position of Director.
In 2013, the Department implemented work force adjustment measures. These measures included a reduction of employees in the region from five to two; three employees received opting letters. No Selection for Retention or Lay-Off (SERLO) process was initialized prior to the three employees being declared opting employees.
The grievor advised the acting Director General, that the grievor was interested in alternating with an affected employee.
It is claimed that the manager responded, that he would not approve or facilitate an alternation between any of the opting employees and the grievor despite not having reviewed their credentials for the grievor's position. The manager stated that he deemed the opting employees unqualified for the grievor's position. It is alleged that the manager had previously advised that he wanted the non-affected employee to take over the grievor's position should the grievor leave. The manager had even requested that the grievor and the non-affected employee switch duties to render this possible. The manager advised the grievor that should the grievor seek to alternate with an opting employee, he would ensure that the merit criteria would render this impossible. It is claimed (and supported by a signed affidavit) that the manager had personality conflicts with the three opting employees. All three of the opting employees sought alternations with the grievor, and all the requests were denied, stating that either the employees were unqualified for the position, despite their previous experience with the grievor's key duties, or that they did not have enough experience dealing with central agencies on matters of policy interpretation and implementation.
The manager created the assessment tool for the grievor's position however did not consult the grievor in creating this tool. It did not reflect the duties assigned to the grievor during the tenure, nor the key activities of the work description. Based on the assessment criteria, the grievor would not have met the requirements to occupy the grievor's own position.
Section 6.2.1 of the Directive requires that all departments and organizations participate in the alternation process. It is alleged that in this case, the Department failed to participate in the alternation process. The grievor recognizes that the Department performed several alternations; however, the grievor alleges that the Employer failed to participate in these specific alternation requests. The intent of the Directive is that the Employer genuinely consider the specifics of each alternation request. Management failed, refused or omitted to genuinely consider the alternation requests of the opting employees, which consequently caused prejudice to the grievor. Prior anyone even submitting a request for alternation or their qualifications being reviewed by the designated person, the person responsible for the assessment tool had advised the grievor that any alternation request with any of these candidates would be denied. The Employer had furthermore sought to transfer the grievor's duties to a previously selected employee and there was a known dislike of the opting employees by the manager, who created the assessment tool and was heavily involved in the refusal of the alternations. Furthermore, the criteria utilized to assess the alternation requests did not reflect the actual duties of the grievor's position, nor the key activities of the Director's job description.
Section 6.2.4 of the Directive requires that an alternation result in the retention of the skills required to meet the ongoing needs of the position and the core public administration. Section 6.2.6 of the Directive requires that an opting employee must meet the requirements for appointment to the unaffected position(s). The Department denied the alternations on the basis that the candidates did not have the experience necessary for the position. However, the intent of the Directive is to retain as many public servants as possible while ensuring that the public service retains the necessary skills for its business. The Employer sought to retain policy skills and communication skills. While the candidates did not live the same experiences as the grievor, they had demonstrated their abilities and skills through their own work experiences.
The opting employees were qualified candidates for an alternation with the grievor. Their opportunity to alternate with the grievor was denied due to the Department's failure to properly apply the NJC WFAD. The grievor has been aggrieved as a result of this failure to apply the Directive properly, and as such the grievance should be upheld and the corrective measures granted.
Departmental Presentation
The Employer's position is that it abided by the intent of the alternation program, as it did consider all requests for alternation put forward for the grievor's position. The assessment of the three opting employees concluded that they did not meet the requirements of the position of Director as such, the three alternation requests were declined.
The representative noted that the Treasury Board Secretariat (TBS) Competency Profiles for this groupalreadytook effect. They are a holistic approach to talent management to facilitate hiring the right people, focusing on learning and training at all levels of the community, clarifing roles and responsibilities and increasing retention. Competencies can be used in defining the essential criteria found in the Statement of Merit Criteria (SoMC) as well as in the tools and systems developed for assessing an individual's skills, knowledge and behaviours against merit criteria. It was further noted that this group is encouraged to adopt a competency-based management approach within their human resources activities; competencies are an integral part of the framework and support the related human resources activities by providing an objective and impartial process to measure an individual's skills, abilities or knowledge using pre-defined criteria. The SoMC, used when considering alternations into the Director position, were derived based on the Competencies for that group.
The Department actively participated in the alternation program and considered all potential "matches" that were proposed by conducting a fulsome and thorough assessment of each candidate. As stated in Section 6.2.4, "an indeterminate employee wishing to leave the core public administration may express an interest in alternating with an opting employee. Management will decide, however, whether a proposed alternation will result in retaining the skills required to meet the ongoing needs of the position and the core public administration." The skills required to meet the ongoing needs of the position are established through the SoMC, which in this case, the manager created using the mandated TBS Competency Profiles. Alternation is not a "right" of employees; it is a tool used to manage the workforce.
Retraining does not apply to alternations. The opting employee must meet all the requirements established in the SoMC. In this case, after reviewing the submitted materials (Resume and Cover Letter) and conducting thorough reference checks, it was determined that all three applicants did not meet the requirements.
Although the grievor's position was created as a "similar to" the other positions in the branch, it is not identical. With those positions, a "Resources Susceptible to Influence" worksheet is completed by the manager and attached to the work description in order to accurately assess the Nature of Impact factor. Based on the worksheet submitted with the work description for the creation of position, it was given a higher rating in this factor than the other three positions, and therefore would not be considered an identical position.
The Departmental representative noted the case between Public Service Alliance of Canada and Professional Institute of the Public Service of Canada vs Treasury Board of Canada (2013 PSLRB 37), management decides "…whether a proposed alternation is likely to result in retention of the skills required to meet the ongoing needs of the position and the Core Public Administration." The obvious implication of this provision is that, if the proposed alternation is not likely to result in the retention of the requisite skills, management can block the intended alternation. The provision permits, first and foremost, a consideration of the suitability of the opting employee for the position into which he or she is proposing to move. However, it also gives management broad latitude to consider the "…ongoing needs of the positions and the Core Public Administration."
In conclusion, the Employer acted in good faith and within the intent of the Workforce Adjustment Directive when it considered each alternation request. Unfortunately, none of the opting employees met the essential requirements of the position or the need to retain the skill set. A secondary review of the SoMC developed for the position, as requested by the grievor's representative, confirmed that the assessments were conducted in good faith.
Executive Committee Decision
The Executive Committee considered the report of the Work Force Adjustment Committee and noted the impasse. The Executive Committee considered the information and circumstances in this grievance and agreed that, as the grievor was not an affected employee, the grievor was not entitled to the provisions of the Work Force Adjustment Directive. As such, the grievance is denied.