September 29, 2021
28.4.635
Background
The grievor, working in City A, Province M, was verbally advised on July 17, 2019, that they were an affected employee whose services may no longer be required because of a workforce adjustment (WFA) situation. On August 7, 2019, the Employer issued a letter to the grievor, formally notifying them that they had been identified for lay-off and their services would not be required beyond August 21, 2019 because of lack of work, with no guarantee of a reasonable job offer (GRJO). The grievor was then provided with 120 calendar days from the date of the letter to decide on one of the three options provided for in the Work Force Adjustment Directive (WFAD). On December 4, 2019, the grievor notified management that they had chosen Option Ci, resigning from their position with a Transition Support Measure and Education Allowance.
The grievor is grieving that the Employer did not allow them to fully benefit from their rights under the WFAD and the FI collective agreement. The grievor claims that they were denied surplus priority entitlements, arguing that they should have been considered as a surplus priority once the deputy head had deemed their services were no longer required. The Employer maintains that as an opting employee, the grievor did not have a surplus priority status as they had not chosen Option A.
Grievance
The grievor is grieving the Employer’s failure(s) and omission(s) to provide and allow them to fully benefit from their rights and entitlements under the National Joint Council's WFAD, the Collective Agreement, and any other policies, rules, directives, agreements, laws, rights, practices, customs, principles or documentation which may apply.
The grievor is grieving the Employer’s behaviour and treatment of their person on the basis that it contravened, amongst other things: the National Joint Council's WFAD; the Collective Agreement; and any other policies, rules, directives, agreements, laws, rights, practices, customs, principles or documentation which may apply.
Bargaining Agent Presentation
The representative argued that the objective of the WFAD is to maximize employment opportunities for indeterminate employees affected by WFA situations, however the interpretation adopted by the Employer regarding the grievor’s surplus status essentially eliminated their right to obtain any priority entitlement and the WFAD was applied in such a way as to prevent them from obtaining any benefit from such priority status. The representative argued that from August 7, 2019 until the grievor’s resignation date of December 4, 2019, the grievor attempted in vain to maintain their employment with the Employer by asserting priority surplus status. The BA representative claimed that the Employer refused to acknowledge this priority surplus status and delayed in responding accurately to their questions right up to the last day of their opting period. They stated the grievor felt pushed out of their job with no opportunity to remain employed, under duress, and that their only option was to discontinue their public service career, which was noted in an email when the grievor chose Option Ci.
The representative noted that the grievor investigated possibilities to extend their employment, self-referring to competitions and vacant positions however, was told that from the Employer’s perspective, they were not yet a surplus employee and would not be considered via the priority lens. The grievor believed they were a surplus and not an affected employee, given the Employer’s letter noting that their services were not required beyond August 21, 2019, however, Human Resources replied that the grievor was no longer an affected employee, that they were an opting employee with no GRJO, and not a surplus employee, and did not have any surplus priority entitlements. It was confirmed to them that their entitlement to surplus priority status is effective if they choose Option A, or in the absence of a choice, the organization chooses Option A for employees. Following this, the grievor had a telephone conversation with their Human Resources representative, and it was the grievor’s belief that they were a surplus employee, however the day before the grievor was required to make a decision on their options, on December 3, 2019, the Employer confirmed to the grievor via email that they were an opting employee not a surplus employee.
The representative argued that when the grievor was advised on August 7, 2019 that their services would not be required beyond August 21, 2019, they effectively received a lay-off notice which, as defined by the WFAD, is a written notice of lay-off given to a surplus employee at least one month before the scheduled lay-off date. The representative further stated that the WFAD defines a surplus priority as an entitlement for a priority in appointment, in accordance with Section 5 of the Public Service Employment Regulations (PSER) and pursuant to Section 40 of the Public Service Employment Act (PSEA). The representative noted that this entitlement is provided to surplus employees to be appointed in priority to another position in the Federal Public Administration for which they meet the essential requirements. Therefore, the representative noted that in accordance with Section 5(2)7 of the PSER, the grievor’s priority entitlements should have commenced on the day on which they were declared surplus, being August 7, 2019. The representative noted that the PSEA and PSER are clear that priority status was an option for the grievor at the time they received the notice of lay-off letter on August 7, 2019. The representative noted that subsections 1.1.4 and 1.1.5 of the WFAD require that departments make efforts to redeploy or retrain surplus and laid-off persons, Subsection 1.1.17 requires departments to counsel and advise employees on opportunities of finding continuing employment in the Public Service, and that subsection 1.1.19 further requires that home departments appoint as many of their own surplus employees or laid-off persons as possible, or identify alternative positions for which individuals can be retrained. The representative argued that none of these sections were respected in the grievor’s case.
Lastly, the representative noted that section 1.3 of the WFAD requires that the Public Service Commission (PSC) ensures that priority entitlements are respected, that a means exists for priority persons to be assessed against vacant positions and appointed if found qualified, and that priority persons are provided with information on their priority entitlements. The representative noted that the grievor was not aware of any steps taken by the PSC to ensure that the responsibilities under section 1.3 were respected. Under Part IV of the WFAD, the grievor, who stated they were a surplus employee, was entitled to be retrained for any existing or anticipated vacancies, and this did not happen.
In conclusion, the Bargaining Agent representative argued that the grievor was advised that they were not a surplus employee as of August 7, 2019 but rather, that they were an opting employee until they chose an option, or the opting period expired. The representative stated that the WFAD does not exclude an employee from being both an opting and surplus employee, simultaneously. They stated that a surplus employee may be entitled to surplus priority entitlements as well as be an opting employee. As such, the representative recommended the grievance be upheld.
Departmental Presentation
The Employer (ER) representative explained when the grievor self-referred as a surplus priority to position for an upcoming vacant position, the hiring manager was advised by HR that the grievor was not in fact a surplus priority but rather an opting employee, and that the position would represent a promotion. The hiring manager therefore advised the grievor that they were unable to appoint the grievor as surplus, however they did have Appointment in Priority entitlements per Section 40 of the PSEA because they did not have surplus priority status. The manager agreed to consider the grievor’s assessment results in another ongoing process, once these were finalized, however on December 3, 2019, the grievor selected Option Ci and was therefore no longer entitled to any sort of priority due to their resignation. The staffing of the position resumed after the grievor’s resignation through another pre-qualified pool, and an appointment was made in February 2020.
The ER representative noted that the Employer does not disagree with the union’s perspective that there is a language inconsistency in the wording of the WFAD and the PSEA, PSER, as to how the term surplus is applied. The PSEA and PSER do not recognize the term “affected” which is defined in the WFAD as “an indeterminate employee who has been informed in writing that his or her services may no longer be required because of a work force adjustment situation”. The grievor, in their letter was declared “affected” and was told that a GRJO would not be possible. The WFAD defines surplus employee as “an indeterminate employee who has been formally declared surplus, in writing, by his or her deputy head.” The ER representative reaffirmed that the grievor was never declared surplus as no GRJO was made. Therefore, the grievor’s only option to become surplus under the WFAD, would have been if they had chosen Option A. Had they done so earlier, they would have then been a surplus priority for twelve months and could have added the 120 opting days to that period. The representative noted that this was clarified to the grievor repeatedly in writing on August 7, October 15 and 16, and November 26, 2019. On December 4, 2019, the grievor returned the Options Selection Form indicating that they were choosing Option Ci (resignation with Transition Support Measure and Education Allowance). Their resignation date was identified as January 23, 2020. On December 6, 2019, management sent a letter to the grievor confirming their choice of Option Ci as well as their resignation date.
Based on the information provided and the circumstances surrounding the grievance, the ER representative is of the opinion that the grievor was treated within the intent of the Directive. As such, the representative maintained that Department applied the Directive correctly and the grievance should be denied.
Executive Committee Decision
The Executive Committee considered the report of the WFA Committee which concluded that the letter from the Employer to the grievor dated August 7, 2019 declared the grievor an opting employee under the Directive. As such, the grievor was provided with a period of 120 days to choose from an option, as outlined in the letter. It was agreed that surplus priority status, as prescribed by the Directive, is only available when an opting employee chooses option A or if a deputy head provides a guarantee of a reasonable job offer (GRJO). In the absence of a GRJO, this surplus priority status can only begin once an option selection has been made. The Directive does not provide any other priority statuses within the 120-day opting period. As such, the grievance was denied.