Salary top up and Transition allowance

The employees grieved the employer's calculation of the salary top-up and transition allowance under the WFAD for the type III transitional employment arrangement. The employees requested payment of the salary top-up and transition allowance based on their present workweek of 37.5 hours.

On January 25, 1998, management informed the grievors that the offer of continuing employment, which had been received from a private sector employer, had been classified as a type 3 offer which is not a reasonable job offer for the purpose of the WFAD.

On March 17, 1998 the grievors were offered employment with the new employer with a start date of January 6, 1998. The starting wage was established at $14.49 per hour. On March 23, 1998, management informed the grievors that their employment with the Public Service would be terminated on May 4, 1998 as they accepted an offer of continuing employment with the new employer.

On April 28, 1998, the grievors filed the subject grievances requesting payment of the salary top-up and transition allowance based on the Public Service workweek of 37.5 hours.

The Bargaining Agent representative submitted that the Department had erroneously based its calculation of the transition allowance on an annual salary for the new employer using a 40 hour workweek. However, the grievors did in fact work a 37.5 hour a week while employed in the Public Service.

The representative submitted that the intent of the WFAD is to calculate the annual salary of the new employer utilizing the same number of hours as in the Public Service.

The Departmental representative stated that the grievor's were offered Type 3 jobs with the new service provider. Since their new salaries were less than their Public Service salaries, they were entitled to a six month lump-sum payment plus a 12 month salary top-up allowance, to a combined maximum of one year's pay, under section 7.7.4 of the 1996 WFAD.

The representative submitted that the intent of Section 7.7.4 was to compensate employees for accepting a job where the salary is less than their Public Service job. Since the WFAD is silent in the method of calculating the salary top-up, and because the Department was concerned that a significant number of employees might receive seasonal and part-time job offers with the new service provider, advice was sought from the Treasury Board about the method of calculation.

On November 13, 1996, the Treasury Board advised that the Department should top-up the annual full time salary to ensure that the grievors received an amount equivalent to their annual salary. In essence, the resulting calculation added to the salary offered by the new service provider gave the employee the same annual salary s/he would have received had s/he continued working for the Department. This method of calculating the top-up was used for all calculations, regardless of whether the employee was moving from a 37.5 hour workweek, or from a full time position to a part-time or seasonal position.

The Departmental representative noted that section 7.7.5 of the WFAD states: "…for the purpose of 7.7.1, 7.7.2 and 7.7.4, the term "remuneration" includes and is limited to salary plus equal pay adjustments, if any, and supervisory differential, if any." This section does not provide for the calculation of benefits by comparing the hours of work between the two employers.

The representative maintained that reference in the WFAD to the usage of annual salary is found in section 7.2.2 (b) (ii) which deals with the definition of a Type 2 job offer which states: "the average annual salary of the new employer for the group moving is 85% or greater of federal annual remuneration, when the hours of work are different." He added that the usage of the annual salary for calculation purposes is also consistent with the Public Service method of establishing a salary change when an employee moves to a position where the weekly hours of work are different from those of the position the employee is leaving.

In closing, the Departmental representative reiterated that the salary top-up allowance was applied to compensate employees for accepting a job that offered less than their Public Service salary. He also noted that it was the Department's position that the NJC did not have jurisdiction to deal with the issue of a Transitional Allowance, because it was not negotiated under the terms of the WFAD and does not form a provision under the collective agreement.

The Executive Committee could come to no agreement with regard to the intent of the WFAD. Therefore, the Committee reached an impasse.