Reasonable job offer

The employee grieved the employer's refusal to guarantee him a reasonable job offer in accordance with the NJC - Work Force Adjustment Directive. He also grieved that his position and its functions had not been discontinued. The grievor wished to be treated in accordance with the NJC-WFA Directive.

As a result of restructuring, two supervisory levels were eliminated within the laboratory at which the grievor was employed. This change affected ten positions, five of which were supervisory positions. One position, the grievor's, was declared surplus. In accordance with article 1.1.7 of the WFAD (1998) the employer predicted it could provide a guarantee of a reasonable job offer to the grievor.

On November 18, 1998, the grievor received a letter informing him of his surplus status, guaranteeing him a reasonable job offer, and offering him alternative employment on a secondment basis as an interim measure until the Agency was able to offer him a reasonable job offer (RJO).

The Bargaining Agent representative asked the committee to consider the letter the grievor received on November 18, 1998, paying special attention to paragraph 3 thereof, which states: "based on the best information available at this point, (pending approval of the LTSP III) I anticipate that the Agency will be in a position to make you a reasonable job offer within a few months and I therefore consider I can guarantee you a reasonable job offer in the public service within the one year surplus period."

The representative submitted that LTSP III required cabinet approval and that the Agency President does not have the authority to make or even guess its decision. Therefore, at the time of the letter, the President effectively says "at this point in time, I cannot give you a reasonable job offer but if my information on the future Cabinet decisions is correct, I will be in a position to guarantee you a reasonable job offer". In the representative's view, this was not a guarantee of a reasonable job offer.

The Bargaining Agent representative stated that the grievor's skills are highly specialized in the area of hardware/software and test methods and operations required in a test facility. This is at a senior working level, requiring a level of proficiency, recognized as an authority in the field and achieved only after many years of experience. He added that while the grievor's experience could allow him to switch to a related field, he probably would not achieve a working level within the few years he had left to work. He argued that this point was agreed to by the grievor's HR department in a letter dated March 12, 1999. The only job at the agency that the grievor can fill is that of Director, which is essentially his old job. The representative added that the appraisal, which was submitted to the Public Service Commission (PSC), contained uncomplimentary statements, which, on their own, would most likely not enable the grievor to obtain another position.

The representative submitted to the committee that the discontinuance of the grievor's functions, as argued by the department, was difficult for him to understand and in his opinion should rather be characterized as a "disguised dismissal", as the grievor's position continues to exist. The representative stated that when the grievor did in fact apply for the position of Director, it was immediately filled even though it formed part of the subject grievance.

In closing, the Bargaining Agent representative reiterated that, to this day, the grievor's work unit continues to exist, as do the functions he once carried out. The grievor's removal from his position was nothing less than a "disguised dismissal" and therefore, the requested corrective action should be granted.

The Agency representative explained to the committee that a meeting was held on November 27, 1998 between the grievor, his representative, the Director of Human Resources and the grievor's Human Resources Advisor. At this meeting, the grievor and his representative expressed their view that the grievor had not been treated in accordance with the WFAD.

The Agency's reply was that there were in fact vacant positions available at the grievor's substantive level; that the Treasury Board confirmed the authority of the President of the Agency to guarantee a reasonable job offer within the Public Service; and that the Public Service Commission would assist in finding alternative employment for the grievor.

The representative submitted that the Agency is of the opinion that it has treated the grievor in accordance with the provisions of the WFAD. The Agency has clearly demonstrated that the grievor's functions were discontinued along with others as a result of the November 1998 reorganization and due to the availability of similar level positions within the Agency and the public service, it believed that it was both reasonable and appropriate to predict that the grievor could be re-employed. The grievor has excellent basic skills which, in the opinion of the Agency combined with the training he is entitled to under Part IV of the WFAD, could lead to alternate employment within the Public Service.

In closing, the Agency representative acknowledged that the grievor would have preferred a cash-out. However, she reminded the committee that the President of the Agency had an obligation under the WFAD to provide the grievor with a guarantee of a reasonable job offer if he could reasonably predict continued employment within the public service. Additionally, as the grievor is in receipt of this guarantee of a reasonable job offer, he is not entitled to other options, such as a cash-out.

The Executive Committee considered and agreed with the Work Force Adjustment Committee report which concluded that the grievor was a surplus employee, and as such, was subject to the Work Force Adjustment Directive (WFAD). The Committee further agreed that, to date, the grievor was treated within the intent of the WFAD, given that he had been provided with the guarantee of a reasonable job offer.

The grievance was denied.