May 25, 2016
26.4.37
Background
The grievor's Second Language Evaluation (SLE) results expired. Two years later, the grievor applied on an external staffing process and failed the language test. The Department became aware of the SLE results after four years and as such, after two months of notification, the Department ceased paying the bilingual bonus.
The grievor was diagnosed with a learning disability. It was recommended that the grievor be allowed twice as much time to complete any exam and that the exam takes place in a quiet room. Diagnostic testing was pursued through the Modern Language Aptitudes Test (MLAT) and it was determined that 665 hours of training would be required in order to attain and maintain the language profile. Instead, the grievor was provided support by a language coach from the Canada School of Public Service (CSPS) and one week of intensive language training. The grievor was retested on multiple occasions, without success.
The grievor accepted an alternation to another Department, after the position was declared surplus and was deployed to an English unilingual position.
Grievance
The grievor is grieving the Employer's failure to provide language training as per the Directive, any and all relevant provisions of the Collective Agreement, other applicable NJC Directives and Employer Policies and applicable legislation/regulations.
Bargaining Agent Presentation
The representative explained that initially, when the grievor was tested, the hiring Department did not accommodate the disability and that the grievor withdrew from the test under duress. Although the grievor was advised that the test result would not be officially recorded, the grievor was deemed to have failed the SLE test.
The Bargaining Agent representative also indicated that although the grievor failed the test, the grievor's SLE results were expired and that a reassessment would be needed to qualify for a bilingual position. The representative argued that the grievor was only provided with part-time training and that the Employer did not comply with the medical note that recommended 665 hours of full-time training. Furthermore, the representative noted that where the grievor lives, there is an increased demand for bilingual imperative positions. Therefore, the lack of training and accommodations placed the grievor at a significant disadvantage for any career progression.
The Bargaining Agent representative submitted that the Employer failed to offer special measures to the grievor in order to regain a bilingual level, while not respecting the accommodation needs in accordance with subsections 1.10.1 and 1.11 of the Directive.
Departmental Presentation
The Employer representative noted that the intent of the Directive is to set forth the conditions under which employees are eligible to receive the bilingualism bonus. The representative indicated that the Employer followed the intent of the Directive in this regard as the grievor received the bonus until the grievor's linguistic profile no longer met the position.
The representative also explained that Section 1.2 and 1.12 of the Directive set out the responsibilities of the Employer when employees do not meet the linguistic requirements of their positions. However, the Directive does provide a responsibility to the Employer to provide language training in such cases. The representative submitted that should it be the case, this would have been clearly stipulated in either one of these sections. In addition, the Employer representative indicated that subsection 1.11.2 stipulates that up to a maximum of 200 hours of language training can be provided thus allowing for discretion to the Employer to determine the number of hours which should not be considered an obligation on its part.
Although it was submitted that the Employer should provide language training until such time that the grievor met the language profile again, it was argued that it would create a significant financial burden on the part of the Employer and diminish the responsibilities held by employees in accordance with subsections 1.10.1 and 1.11.3.
Executive Committee Decision
The Executive Committee considered and agreed with the report of the Official Languages Committee which concluded that the grievor was treated within the intent of the Bilingualism Bonus Directive. Although the Committee does not have jurisdiction to address the issue related to the duty to accommodate, it wishes to note that the Department does not have a responsibility to provide training to the grievor until the language profile is met as eligibility for such a bonus requires a personal commitment as well as sustained individual efforts on the part of the employee. As such, the grievance is denied.