December 1, 2015
28.4.626
Background
The grievor occupied a position within Department X. Following a work force adjustment (WFA), the grievor became a surplus employee for a period of 12 months, which ended in October 2013.
In September 2013, the grievor was informed of an entitlement to a priority appointment for a period of one year and as such, was referred to a staffing process at Department Y. The grievor did not have 4 of the essential qualifications required for the position and was screened out of the process without any entitlement to retraining. Department Y advised that they did not have a retraining program for the specific qualifications in question and it was estimated that a period of approximately 5 years was required to develop those skills, which would go beyond the 2 year period allowed by the Directive.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that the Employer had an obligation to offer reasonable and appropriate retraining to the grievor in order to facilitate continuous employment.
The representative referred to the Federal Court decision Olson v. Canada in which the adjudicator found that the grievor was not provided with the appropriate and reasonable retraining because the specific issues over which the Agency considered that the grievor had failed retraining had not been taken into account in developing the retraining plan and were not sufficiently addressed during the retraining. The adjudicator ordered that the grievor be reinstated as a surplus employee.
The representative further referred to the Directive specifically, section 4.2.1, which stipulates the conditions under which surplus employees are eligible for retraining. It is the position of the Bargaining Agent representative that the grievor met all of the conditions as there was no other priority who qualified for the position and that all minimum essential qualifications were met as per the grievor's résumé.
The Bargaining Agent representative noted that the objective of the Directive is to maximize employment opportunities for affected employees and to have access to transitional employment arrangements. As such, retraining would have facilitated the grievor's appointment to one of three vacant positions.
Departmental Presentation
The Departmental representative submitted that retraining was not an option to support the grievor's appointment to Department Y as it was determined that the grievor's skills would need to be developed in a structured manner and that the Department did not currently have such a program or structure in place to provide the necessary training to the grievor.
The representative explained that the grievor had not actively done certain essential qualifications in the past 5 years and it was determined that it would be unfeasible to develop the required skills in a 2 year timeframe. In order to meet the qualifications of the position, the grievor would have needed instruction only available in a school setting. Should the training have been available in a school setting, it would have been operationally infeasible to allow the grievor to be gone on full time training for over a 2 year period.
Furthermore, the Departmental representative provided a document listing all of the Department's efforts in assisting in the grievor's employment search and submitted that it met all of its responsibilities in accordance with part IV of the Directive.
Executive Committee Decision
The Executive Committee reviewed the report of the Work Force Adjustment Committee and noted that it could not come to an agreement on the intent of the Directive. The Executive Committee could not reach consensus either. As such, the Committee reached an impasse.