FPSLREB Decisions

I. Individual grievance referred to adjudication

1  On September 26, 2007, Ian Powell (“the grievor”) filed a grievance against the National Research Council of Canada (NRC) (“the employer”) alleging that it had violated the Work Force Adjustment (WFA) policy negotiated between the employer and the Professional Institute of the Public Service of Canada (“the bargaining agent”). The grievor is covered by the collective agreement between the bargaining agent and the employer for the RO-RCO group (expiry date: July 19, 2007) (“the collective agreement”). The grievance was denied at the final level of the grievance process on September 22, 2008 and was referred to adjudication on October 29, 2008.

2 The grievor worked at the Steacie Institute for Molecular Sciences (SIMS). He grieved the employer’s decision to terminate his employment as part of a WFA exercise. He grieved that the employer made no reasonable efforts to transfer him to other NRC institutes, where he performed a large part of his duties before the WFA. The grievor asks to be reinstated at the SIMS or at any other institute where he was working with the same status, benefits and working conditions that he had before his termination.

3 This grievance concerns the following clauses of the WFA policy:

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3.6.1.3

It is the policy of NRC to ensure that employees affected by work force adjustment are treated equitably and are given every reasonable opportunity to continue their careers, either within or outside of NRC. To assist employees in their career development, NRC will help to ensure that they are adequately and continually trained in their field of work so that they will be able to take advantage of both internal and external career opportunities.

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3.6.7.2

NRC will make every reasonable effort to accommodate a surplus employee’s request to work part or all of the notice period.

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3.6.8.4

During the marketing period, the NRC shall make every reasonable effort to find an appropriate position for the surplus employee and shall provide the employee with regular updates.

3.6.8.5

During the marketing period, the NRC shall inform the employee of all positions for potential appointment when they become available across NRC. The employee may be appointed to an appropriate position with his/her consent for which the employee meets the screening criteria and key competencies.

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3.6.14.1

In the event that the DG chooses not to have the employee work the notice period in part or in full, a lump sum payment equivalent to the employee’s regular pay for the notice period not worked will be paid. This sum will be deemed to meet the notification requirement of this policy.

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3.6.20.1

An employee who feels aggrieved due to an alleged violation of this policy is entitled to present a grievance at each level of the grievance process, up to and including the final level.

3.6.20.2

Employees represented by a certified bargaining agent may also have access to arbitration as per the collective agreement or compensation plan (for unrepresented employees) on all processes mentioned in this policy.

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4 On November 18, 2004, the bargaining agent and the employer signed a memorandum of agreement in which they agreed that the WFA policy shall form part of the collective agreement. The grievor alleged that clauses 3.6.1.3, 3.6.7.2, 3.6.8.4 and 3.6.8.5 of the WFA policy were violated. He has the burden of proving that the employer violated those clauses.

II. Summary of the evidence

A. For the grievor

5 The grievor testified. He also adduced 17 documents in evidence.

6 The grievor obtained his M.Sc. in Applied and Modern Optics in 1970 and his PhD in Physics (Applied Optics) in 1973. He started his career in the private sector and joined the NRC in 1976. He worked as a senior research officer classified in the RO group. The grievor testified that the work atmosphere became poisoned in the 1990s. In 2000, he asked for one year of leave without pay to work somewhere else, but the employer refused. The grievor decided to leave the NRC and went to work for JDS Uniphase as a senior technical advisor. However, the President of the NRC gave the grievor an open employment offer that was valid for two years, starting August 22, 2000.

7 In 2002, JDS Uniphase was in a difficult situation, and the grievor decided to return to work for the NRC. On August 14, 2002, the grievor wrote to the President of the NRC and indicated that he was accepting the employment offer of August 22, 2000. The grievor did not receive a reply to his August 14, 2002 letter. He sent follow-up letters on October 9 and on November 19, 2002. On January 31, 2003, the President of the NRC wrote to the grievor and gave him the names of a few people in the NRC and outside of it that might be interested in employing him. Nothing concrete came from contacting those people. In May 2003, the grievor met with the President of the NRC to discuss his employment situation. The President referred him to one of the NRC institutes, but it had no work for him. In October 2003, the grievor again met with the President. On October 16, 2003, the grievor was offered a part-time position of three days per week on projects for the SIMS and for the Hertzberg Institute of Astrophysics (HIA). The grievor accepted the position. He occupied that position until he was laid off on November 1, 2007.

8 From 2003 until he was laid off, the grievor testified that most of his work came from the HIA. He estimated that approximately 5 to 10% of his work came from the SIMS, 10 to 15% from the Institute for Microstructural Sciences, 5% from the Institute for National Measurement Standards, and 60 to 70% from the HIA.

9 On September 6, 2007, the employer advised the grievor in writing that his position had been identified as surplus to requirements under the provisions of the WFA policy. The grievor was then informed that the layoff date would be November 1, 2007, that he was entitled to an eight-week marketing period and that he had to complete an employee profile document. The grievor indicated that he wished to be marketed, and he completed the document. The grievor was also informed of his other entitlements under the WFA policy, namely, a notice period of 20 weeks plus 1 week for every year of continuous service, an outplacement benefit of $8000 and severance pay according to the collective agreement.

10 During the marketing period, the grievor testified that he received notice of only three or four job openings and that those jobs were not at all related to his field of expertise. The grievor asked the employer if he could work during his notice period rather than receiving a 20-week lump-sum payment. On September 19, 2007, John Pazder, Leader of the Optical Team at the HIA, emailed the grievor, informing him that he supported the grievor continuing his work arrangement with the HIA during his notice period. Mr. Pazder wrote that it would allow a smooth transition with his departure from the NRC.

11 On October 22, 2007, Peter Byrnes, a mechanical engineer at the HIA emailed the grievor, asking him if he could help him with a project and “estimate preliminary values for alignment and perhaps stability, from the MOSFIRE/IRMS models and data that you have.” The grievor informed Mr. Byrnes that he was to be laid off in the very near future and that it was debatable whether he would have time to finish that work.

12 The grievor was informed in spring 2008 of a job opening in his field at the HIA in Victoria, B.C. He refused the position because it was in Victoria. After the marketing period was over, the grievor asked to work one day per week from Ottawa on an HIA project or on other projects. The employer never responded.

B. For the employer

13 The employer adduced 12 documents in evidence. It called Danial Wayner, John Pazder and Kendra Kehoe as witnesses. At the time of the grievance, Mr. Wayner was the director general of the SIMS, Mr. Pazder was the team leader of Optical Engineering at the HIA and Ms. Kehoe was a corporate hiring advisor for the NRC.

14 In 2003, when Mr. Wayner became the director general of the SIMS, the President asked him to hire the grievor. Mr. Wayner accepted the request even though he felt that the grievor’s qualifications were not a good fit for the SIMS research program and priorities. When the SIMS hired him in 2003, the grievor was to work three days per week. Half his time was to be spent on SIMS projects, and the other half on HIA projects.

15 In 2007, the NRC undertook a strategic review of its activities to better focus on urgent national research priorities, namely, health and wellness, sustainable energy, and the environment. On August 10, 2007, the President of the NRC wrote to all employees, informing them that the NRC had conducted a review of all its activities and that some programs or activities would cease, while others would be refocused. Ultimately, that review resulted in 88 NRC positions being identified as surplus to requirements, including 8 positions in the SIMS. The grievor was one of those employees.

16 To help the grievor, Mr. Wayner called the Director of the HIA in May or June 2007 to enquire as to whether he could use the grievor’s services. The Director of the HIA said that there was possibly a position in Victoria, but the Director thought that the grievor was not geographically mobile.

17 No discussions were held with employees before their positions were declared surplus. However, shortly after, an information meeting was held in which the employer informed the employees of what would happen and of their rights under the WFA policy.

18 The grievor asked the employer if he could work during his notice period in order to maximize his benefits. The Human Resources advisor told Mr. Wayner that, to allow such requests, a sufficient business reason was required. Mr. Wayner was not presented with any such reasons, and he refused the grievor’s request. Also, Mr. Wayner does not recall any specific discussions with the HIA during the grievor’s marketing period.

19 In June 2007, a research officer position reporting to A. Stolow in the field of Optical Sciences became vacant. After talking to A. Stolow, Mr. Wayner concluded that that job was not in the grievor’s area of expertise. The position required a laser scientist, and the grievor is not that type of scientist.

20 Mr. Pazder testified that the grievor worked for him on a project for the equivalent of 30 hours a month or one-and one-quarter days per week. However, he did not approve the grievor’s leaves or time sheets. He was responsible only for giving him work. Mr. Pazder recalled that, in June 2007, the grievor called him and asked for more work. Mr. Pazder assigned him the review of an existing report.

21 When Mr. Pazder learned from the grievor that he would soon face a layoff, he asked his colleagues at the HIA whether they had work for him. For Mr. Pazder, it would have made sense to ask the grievor to finish the work that he had started before leaving the NRC. Mr. Pazder testified that Mr. Wayner did not call him during the marketing or the notice period. Mr. Pazder also testified that, at the present time, there would be no work for the grievor.

22 Ms. Kehoe explained that, during the eight-week marketing period, the employer tried to place the surplus employees in other position within the NRC. Employees had the choice whether or not to be marketed. If they chose to be marketed, they filled out an employee profile form. On the form, the grievor indicated that he was interested only in positions in Ottawa and that he was not interested in lower-level positions or positions different from his classification at the time. For Ms. Kehoe, that meant that the grievor would not be considered for research council officer (RCO) positions because he was a research officer (RO). She explained that an RO is a pure scientist and that the RCO category is much broader. However, ROs and RCOs are paid the same. Ms. Kehoe did not recall for sure whether she explained at a group meeting for the surplus employees that ROs should clearly indicate their interests for RCO positions or should indicate their interest in positions with different classifications if RCO positions interested them.

23 Ms. Kehoe testified that, at the time of the layoff notice, a list of all available vacancies was sent to the surplus employees. However, no update of that list was ever sent to employees. According to the computerized priority matches report prepared by the NRC, during the marketing period the grievor’s candidacy was assessed for 20 vacancies. In 16 instances, the grievor did not meet the education requirements, in 1, the language requirement, and in 1 other, the experience requirement. The grievor met the requirements for two positions but was not interested in them, according to the computerized report.

24 In explaining the WFA policy, Ms. Kehoe testified that employees may ask to work during their notice periods. According to Ms. Kehoe, the decision of whether to approve an employee’s request is at the employer’s discretion.

III. Summary of the arguments

A. For the grievor

25 The grievor argued that the employer violated clause 3.6.7.2 of the WFA policy by not making every reasonable effort to accept his request to work during the 20-week notice period. Rather, the employer interpreted the collective agreement as giving it the right to accept such a request either by its sole discretion or if the grievor presented a business reason for working through the notice period. The employer’s decision was made without consulting the HIA, where the grievor did a large part of his work, and the evidence shows that there was work at the HIA for the grievor during his notice period.

26 That violation of clause 3.6.7.2 of the WFA policy had negative consequences for the grievor. Because of the employer’s decision, the grievor lost his health benefits and terminable allowance. Also, those 20 weeks did not count as service for superannuation, and the grievor was not marketed for another job within the NRC. Those are substantive rights for the grievor.

27 Clause 3.6.1.3 of the WFA policy obliges the employer to treat affected employees equitably. Equitable treatment does not mean equal treatment for all employees but fair treatment that takes into account the context and the circumstances of each case. The grievor was promised an open job offer that would be valid for two years when he left the NRC in 2000. That promise was not respected. Instead, the NRC offered him a position for three days a week that did not fit with the SIMS’ priorities. A large part of the grievor’s work was done for the HIA, but when Mr. Wayner decided that the grievor’s position would be declared surplus, he did not consult the HIA.

28 During the marketing period, the employer provided the grievor with three or four job openings, which were not at all related to his qualifications. That does not mean that there were no openings in the grievor’s area of expertise during that period. In June 2007, there was a job opening in optical sciences that was not sent to the grievor. At that point, the employer violated clause 3.6.8.5 of the WFA policy.

29 It was insufficient for the employer to send a snapshot list of all vacant positions when the employees were declared surplus. The WFA policy obliged the employer to send regular updates of job openings during the marketing period. No update was sent to the grievor.

30 The adjudicator has jurisdiction to hear this grievance even if he cannot rule that the employer’s decision to layoff the grievor was inappropriate. The grievor asks to be placed where he worked immediately after he was declared surplus. The grievor also asks for the remuneration of all lost salary and benefits, less mitigation. If the grievance is allowed, the parties will meet and determine what the employer should pay the grievor. The grievor asks the adjudicator to remain seized to intervene if the parties cannot arrive at an agreement.

31 The grievor referred me to Olson v. Canadian Food Inspection Agency, 2009 PSLRB 6; Morhart v. Treasury Board (Solicitor General Canada - Correctional Service), 2002 PSSRB 36; Bunyan et al. v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 85; and Community Nursing Home - Port Perry v. Ontario Nurses’ Association, 2008 CLB 2844.

B. For the employer

32 The employer argued that an adjudicator does not have jurisdiction to decide this grievance. The WFA policy does not limit the employer’s authority to terminate employees. Rather, it sets out the process that follows the employer’s decision to declare a position surplus. Furthermore, the NRC is not an organization designated in subsection 209(3) of the Public Service Labour Relations Act (“the Act”) for the purposes of paragraph 209(1)(d). The employer referred me to the following section of the Act:

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209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee's satisfaction if the grievance is related to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

(c) in the case of an employee in the core public administration,

(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or

(ii) deployment under the Public Service Employment Act without the employee's consent where consent is required; or

(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

(3) The Governor in Council may, by order, designate any separate agency for the purposes of paragraph (1)(d).

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33 The employer recognized that an adjudicator has jurisdiction to decide whether the WFA policy was violated. The WFA policy applies after the employer decides to declare a position surplus.

34 In late 2007, there was an opening at the HIA in Victoria because one of the scientists there retired. The grievor was qualified, but he did not want to move to Victoria. The employer did what it was supposed to do under the WFA policy. The grievor was treated equitably. He was marketed for eight weeks. In that respect, the grievor also had some responsibilities, but he was not mobile outside Ottawa, and he did not make any efforts to fit into another job. The grievor could have let people know of his interest for some positions.

35 The grievor argued that he worked mostly for the HIA. Mr. Wayner contacted the director general of the HIA. There was no job vacancy for the grievor.

36 Before his notice period, the grievor contacted Mr. Pazder for his support. Mr. Pazder replied that he could help and that the grievor could wrap up the work that he had already started. However, there was no new work. The onus was on the grievor to make a case for working during his notice period. The grievor did not inform Mr. Wayner that he had contacted Mr. Pazder. Mr. Wayner did not have any business reasons to employ the grievor during the notice period, and the grievor did not express any. Mr. Wayner then chose not to have the grievor work through his notice period.

IV. Reasons

37 The employer objected to my jurisdiction to reinstate the grievor in his former position. Contrary to his request in the grievance, at adjudication the grievor did not ask for his former position and did not argue that I had jurisdiction to reinstate him. Rather, he asked to be reinstated to his surplus status, so that the employer could fulfill its obligation under the WFA policy. The employer admits that I have jurisdiction to decide whether the WFA policy has been violated, but disputes what type of remedy I can order. I have decided that the employer has violated the terms of the WFA policy, but have decided to leave the issue of remedy open, hoping that the parties will be able to come to an agreement.

38 The WFA policy has 22 clauses, numbered 3.6.1 to 3.6.22. The alleged violations of the WFA policy concern clauses 1, 7 and 8. Clause 1 is a general introduction to the policy and explains its principles. Clause 7 deals with its administration and with some of the employer’s obligations. Clause 8 concerns the marketing period.

39 The grievor argued that the context in which he left the NRC in 2000 and the conditions under which he came back in 2003 should be taken into consideration in deciding whether he was treated equitably, as per clause 3.6.1.3 of the WFA policy. I do not agree. If the grievor felt that he was not treated fairly in 2000 and in 2003, he should have filed grievances at those times. Given that he did not do so, he is now barred from contesting the employer’s actions since the collective agreement requires that a grievance be filed within 25 days. Additionally, the WFA policy only applies at the time of a WFA situation, and can never apply retrospectively.

40 Clause 3.6.7.2 obliges the employer to make every reasonable effort to accommodate the grievor’s request to work part or all of the notice period. The grievor testified that he made such a request. The employer did not adduce any evidence that the grievor did not make that request. Mr. Wayner refused the request because he was not presented with business reasons to accept it. Before refusing the grievor’s request, Mr. Wayner did not verify with the HIA if there was work for the grievor during his notice period. Ms. Kehoe testified that the decision to approve an employee’s request to work during the notice period is made at the employer’s discretion.

41 The evidence is unequivocal: the employer’s interpretation of clause 3.6.7.2 is erroneous. In this case, making a reasonable effort to accommodate a request to work the notice period required of the employer more effort than just using its sole discretion to decide on the request. It also demanded more than just refusing the request if it was not supported by a sound business reason, advanced by the person making the request. At a minimum, it meant making a reasonable effort to accommodate the employee’s request by making efforts of its own to gather information needed to come to a reasoned decision. The evidence shows that there was some work for at least a few weeks at the HIA during the notice period. Mr. Wayner did not know about it because he did not ask. By not asking, he did not make every reasonable effort to accommodate the grievor. Furthermore, the evidence discloses that nobody else at the NRC made those efforts either.

42 The second alleged violation of the WFA policy is related to the marketing period. During that period, which in this case started on September 6, 2007 and ended October 30, 2007, the unequivocal language of the collective agreement obliged the employer to make every reasonable effort to find an appropriate position for the grievor, to provide him with regular updates and to inform him of all potential appointments when they became available. According to Ms. Kehoe, the employer provided the grievor with a list of all available vacancies within the NRC at the time of the layoff notice, which was in early September 2007, but no update was provided after that. The grievor was assessed against 20 positions, but he was found unfit for them. In June 2007, there was a vacant position in Optical Sciences. Mr. Wayner concluded that the position was not in the grievor’s area of expertise. That was before the marketing period and is therefore irrelevant to deciding whether the employer met its obligation during that period.

43 It is clear from the evidence that the employer made some efforts to find a position for the grievor. However, the employer admitted in its own evidence that it did not provide the grievor with regular updates during the marketing period and that it did not inform him of all potential appointments when they become available. In acting that way, the employer violated clauses 3.6.8.4 and 3.6.8.5 of the WFA policy.

44 I am not sure whether the end result would have been different for the grievor had the employer kept him informed at all times of the available positions. He might have been laid off anyway. However, the employer cannot, in fulfillment of its marketing obligation under the WFA policy, limit its efforts thereunder to the simple operation of a job-matching system. That system might be efficient, but it does not relieve the employer of its obligation to provide updates to employees and to inform them of job vacancies during marketing periods.

45 The grievor asked to be reinstated to his surplus status, and distinguishes his request from a request for reinstatement to his former position. I am not sure of what such an order would imply. Considering that the parties did not make detailed and concrete submissions on remedy and what it could imply, I prefer not to suggest a specific remedy and to hear the parties at an oral hearing on the matter before making a decision.

46 I strongly encourage the parties to discuss the remedy, with the assistance of a mediator if necessary, to try to resolve the issue. 

47 For all of the above reasons, I make the following order:

V. Order

48 The grievance is allowed in part.

49 A hearing will be scheduled to decide the remedy.

February 16, 2010.

Renaud Paquet,
adjudicator