Layoff - Seasonal

The employee grieved the fact that he had been served with a layoff notice dated January 5, 1998, in contravention of the NJC Work Force Adjustment Directive. The employee requested that the layoff be rescinded.

On October 30, 1995 regional management reclassified seven indeterminate seasonal positions. At that time, employees received a letter of offer for the newly classified positions. The grievor's position was to be an indeterminate seasonal position, however, the word "seasonal" was omitted in error from his letter of offer. Upon noticing the error, on December 19, 1995 the letters were re-issued by the Department.

In a November 29, 1996 memorandum from the Officer-In-Charge, it stated that the 1996 "season" would officially end on December 11, 1996. It also mentioned that all indeterminate seasonal employees would remain on strength for the 1996-97 season in order to facilitate training and winter assignments. On October 30, 1997 management notified the grievor that his seasonal work for the 1997 shipping season would come to an end on January 5, 1998.

The Bargaining Agent representative began his presentation by stating that although the subject grievance was filled in November 1997, it was actually in October 1995 that the issued originated. At that time a new grouping was announced and two (2) disciplines were brought together as one through a reclassification exercise.

The Bargaining Agent representative explained that it was at that time that the Department made what they have chosen to call an administrative error, in that the job offer provided to the grievor should have included the word "seasonal".

The Bargaining Agent representative provided the Committee with several documents outlining the chronology of events surrounding the grievor's employment status. He stated that a letter of offer was originally provided to the grievor on October 30, 1995, which he accepted and signed. The representative noted that on December 19, 1995 the Department provided an amended letter of offer to the grievor, which contained the word "seasonal". The grievor refused to sign or accept this letter of offer. The representative added that the PSC advised the grievor that further to his request for an investigation, the issue was outside the Commission's jurisdiction in that Terms and Conditions of Employment do not fall under the Public Service Employment Act (PSEA).

In closing, the Bargaining Agent representative submitted that there is only one legal standing amongst all the documents provided to the committee - the job offer which was signed and accepted by the grievor. He reiterated that in October 1997, the grievor was laid-off and therefore is subject to the WFAD. The representative cited the definition of "affected employee" and "layoff" as contained in the WFAD and contended that the grievor fell squarely within this wording. Finally, the representative asked the committee to find for the grievor in that he is in fact an indeterminate employee and by virtue of the layoff notice he received was not treated within the intent of the WFAD.

The Departmental representative contends that in order for the WFAD to come in force, there must in fact be a layoff as described in section 29 (1) of the Public Service Employment Act (PSEA). In the grievor's case, none of the conditions described in this article have been met. The representative explained to the committee that the notification received on October 30, 1997 was intended to notify the grievor of the closing of the shipping season on January 5, 1998 and not the termination of his employment. He further contended that since the end of the season did not terminate his employment status as an indeterminate seasonal employee, the notice is not subject to the WFAD. There was no "lack of work" situation as contemplated in the PSEA, nor was there any intent to layoff the grievor.

The Departmental representative stated that the Department recognizes that in a letter given to the employee in October 1995 the word "seasonal" was omitted in error. It was not the Department's intention at the time of the reclassification, to change the grievor's status from an indeterminate seasonal employee to an indeterminate full-time employee. In an effort to correct the above-noted omission, a new letter of offer dated December 19, 1995 was issued. In addition, the Department met with the grievor on January 8, 1996 to clarify his status and provide him his revised letter of offer.

The Departmental representative closed by stating previous Departmental correspondence confirmed that at the end of the shipping season, employees are informed in writing. As well, the commencement date of the new season is stated. The closing of the shipping season had no impact on the grievor's status of employment. He remained an employee of the Department, his employment was not terminated and he cannot enjoy the benefits of the WFAD.

The Executive Committee considered the Work Force Adjustment Committee report. The Executive Committee agreed that the NJC has the jurisdiction to hear the grievance and determined that the grievor had been treated within the intent of the WFA Directive to the extent that it applies to a seasonal employee.

The grievance was denied.