June 1, 1999
28.4.573
The employee grieved the commencement date of his Surplus Status. The employee requested that his "payout" under the terms of the Early Retirement Incentive (ERI) program be increased to reflect a May 1 surplus date. He also requested any other redress deemed appropriate.
On February 3, 1997, the grievor received a letter informing him that he was an affected employee. On April 2, 1997, the grievor was officially provided with a letter of Notice of Surplus Status which contained 3 options – 1) EDI; 2) ERI; or 3) Alternative Employment/12 month Surplus Period.
On April 29, 1997, a Department Officer completed and submitted to the Public Service Commission (PSC) a Staffing Priority notification regarding the grievor. This notification was received at the PSC regional office on May 1, 1997. On May 29, 1997, the grievor spoke to his Human Resources Advisor who informed him that his surplus period covered the period of April 2, 1997 to October 1, 1997.
On July 28, 1997 the grievor once again met with the Human Resources Advisor and signed a request for Pay in Lieu of unfulfilled surplus period. His proposed date of resignation was identified as July 31, 1997, and the grievor requested a cash-out payment for the period April 2, to October 1, 1997. Management approved the request for PIL on August 11, 1997 and the grievor left the Department with an ERI package effective July 31, 1997. The grievor filled the subject grievance on September 2, 1997.
The Bargaining Agent representative stated that it was the bargaining agent's position that the grievor's surplus period did not begin on the date indicated by the Department. Rather, it should have begun as per the definition contained in the 1996 WFAD – at least six months from the receipt of notification to the PSC to the proposed layoff date.
The representative submitted for consideration the fact that Form 1891 – Staffing Priority Notification Form – was only received by the PSC on May 1, 1997 as indicated by the PSC's own date stamp. She added that in keeping with the definition of the Surplus Period, the date on which the surplus period should have commenced, should in fact have been May 1, 1997.
The Bargaining Agent representative also asked the committee to consider the allegation surrounding the timeliness of the grievance. She submitted that the grievance could not be considered untimely as it was on July 28, 1997 that the grievor was officially made aware of management's position not to pay out his unfulfilled surplus period up to November 2, 1997. She stated that once the issue crystallised, the grievor filled his grievance within the allotted 25 days. Furthermore, as reflected in the Department's response at the second level, the issue of timeliness was never raised. The representative explained that management denied the grievance at the previous levels, based on the fact that they had deemed the application of the WFAD to be proper and fair.
In conclusion, the Bargaining Agent representative reiterated that the date on which the surplus period commences should be based on the definition of the Surplus Period as contained in the WFAD. That is the date on which the PSC is in receipt of the notification of the proposed layoff date. In the grievor's case, the PSC received notification of the proposed layoff date on May 1, 1997. The representative therefore submitted that the surplus period should have commenced on May 1, 1997 and terminated on November 2, 1997. She added that the Department should pay the grievor all moneys and benefits due to him for the extra month in question, and that this amount should be included in the amounts calculated regarding the certification for waiver of reduction in annual allowance.
The Departmental representative explained to the committee that because of major downsizing with program review, Most Affected Department (MAD) status was approved for the Department. It was also established practice with the PSC that the Department, being the Department of prime user for employees in certain specialized fields, be relied upon to seek employment opportunities before going to the PSC.
Section 1.1.8 of the WFAD establishes the Departments responsibilities with regard to notifying the PSC of an employee's surplus status – by sending written notice as well as such details, forms, résumés and other material as the PSC may prescribe as necessary.
The Departmental representative explained that it was accepted practice that the notification form would be sent to the PSC along with the employee's surplus letter, résumé and application for employment form. The surplus letter did not provide a proposed layoff date, in order to ensure that employees could benefit from a full six-month payment in lieu period.
In this instance, documents were attached to the surplus letter to expedite the staffing process with the PSC, however, the grievor did not complete and return them. The representative added that because of the particular nature of his duties, the responsibility for placing the grievor rested primarily with the Department. The Departmental Human Resources Officer attempted without success to discuss with the grievor, the surplus status issue until May 29, 1997, and to obtain the necessary documents required to market him. It was in part because of the delays in obtaining the necessary information from the employee, that there was a delay in forwarding the PSC Staffing Priority Notification Form.
The Departmental representative further asserted that the grievor received the total maximum compensation for the surplus period - six months. The grievor opted in the beginning to remain employed during his surplus period, rather than taking one of the incentive programs. Consequently, the grievor received regular pay for the period April 2, 1997 to July 30, 1997, the date he indicated his option to take a cash-out. The remainder of his surplus period, to a maximum of six months, was paid as a lump sum for the period July 31 to October 1, 1997.
The Department also wished to raise the issue of timeliness. The grievor was informed in writing of his affected (February 3, 1997) and surplus (March 26, 1997) status which stated that the paid surplus period was for six-months. This was also clarified in a telephone conversation between the grievor and the Human Resources Officer. In addition, the grievor did not submit his grievance until September 2, 1997 at which time he was no longer an employee of the Federal public service. For all of these reasons, the Department believes the grievance to be technically untimely.
The Executive Committee considered the Work Force Adjustment Committee report and could come to no agreement on the intent of the Directive on the issue in question. Therefore, it reached an impasse.