FPSLREB Decisions

I. Grievance referred to adjudication

1 Sylvestre Thomas (“the grievor”) filed a grievance dated November 28, 2003, alleging that the employer violated Article 23 (Job Security) and Appendix “E” (Work Force Adjustment) of the collective agreement signed on November 19, 2001 for the Program and Administrative Services Group bargaining unit.

2 The grievor referred the grievance to adjudication on May 5, 2010, with the support of his bargaining agent, the Public Service Alliance of Canada (“the union”). Paragraph 92(1)(a) of the Public Service Staff Relations Act,R.S.C. 1985, c. P-35 (“the former Act”), which states as follows, is the provision applicable to his grievance:

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

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

…

3 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, this reference to adjudication must be dealt with in accordance with the provisions of the former Act.

II. Summary of the evidence

4 At the outset of the hearing, the parties submitted an agreed statement of facts, which reads as follows:

[Translation]

…

1. When he filed his grievance, Mr. Sylvestre Thomas was working as an information officer at the Income Security Program call centre at the CR-05 group and level, with salary protection at the PM-01 group and level, for the Human Resources Centre of Canada, a division of Human Resources Development Canada (“the Employer”), located at 120 Harbourview Boulevard in Bathurst, New Brunswick (“Bathurst CR‑05 position”).
2. From June 1, 1998 to November 2003, Mr. Sylvestre Thomas held a service delivery representative position at the Career Resource Centre, at the PM-01 group and level, for the Human Resources Centre of Canada, a division of Human Resources Development Canada, located at 20E St-Pierre Boulevard West in Caraquet, New Brunswick (“Caraquet PM-01 position”).
3. In spring 2003, Mr. Thomas, like the other employees, was informed that his Caraquet PM-01 position would be affected by the workforce adjustment at Human Resources Development Canada in the Chaleur-Peninsula district.
4. Between April 28 and October 30, 2003, Mr. Thomas and the employer reached an agreement under which Mr. Thomas would perform the duties of the Caraquet PM-01 position one day per week in Caraquet and four days per week in Bathurst.
5. On November 10, 2003, Ms. Louise Branch, Regional Executive Head for the New Brunswick Region, informed Mr. Thomas in writing that his Caraquet PM-01 position had been declared surplus following the reduction of its duties on October 28, 2003. The letter also made a “reasonable job offer” to Mr. Thomas of the Bathurst CR-05 position as of November 10, 2003. A copy of Ms. Louise Branch’s letter is attached to this agreed statement of facts as Exhibit 1.
6. On November 24, 2003, Mr. Thomas signed the employer’s letter of offer for the Bathurst CR-05 position, which had been attached to Exhibit 1. Mr. Thomas checked the “I accept this offer” box but added the word “duress” as it appears on a copy of the letter attached to this agreed statement of facts as Exhibit 2.
7. Mr. Thomas filed a grievance on November 28, 2003 under Appendix E of the collective agreement. The grievance states the following:
   
   “I am filing a grievance because the employer did not make me a reasonable job offer in accordance with Appendix E of my collective agreement…”
   
   “That the employer take the necessary measures to make me a reasonable job offer in accordance with my collective agreement.
   That any undue pressure cease immediately.”
8. On December 16, 2003, Ms. Christel Pond, the employer’s representative, dismissed Mr. Thomas’ grievance on the grounds that the job offer was reasonable under the circumstances.
9. On July 5, 2004, Ms. Janice Culliton, Associate Regional Executive Head, dismissed Mr. Thomas’ grievance at the second level.
10. On December 15, 2004, the employer recommended that the grievance be processed through the National Joint Council (NJC) procedure directly at the second level. Mr. Thomas and the bargaining agent accepted the recommendation.
11. On March 24, 2005, the employer offered Mr. Thomas a deployment to a service delivery representative position at the CR-05 group and level in Caraquet, with salary protection at the PM-01 group and level, beginning on April 1, 2005. A copy of the letter is attached to this agreed statement of facts as Exhibit 3 (Caraquet CR-05 position).
12. After accepting the offer, Mr. Thomas began performing the duties of the Caraquet CR-05 position on April 1, 2005.
13. On September 14, 2006, following a reclassification of the Caraquet CR‑05 position held by Mr. Thomas, he was appointed to a citizen services officer position at the PM-01 group and level in Caraquet, as stated in the employer’s letter, a copy of which is attached to this agreed statement of facts as Exhibit 4. When he signed this agreed statement of facts, Mr. Thomas still held that position.
14. On May 28, 2007, Daniel Richer, Departmental Liaison Officer, dismissed the grievance at the second NJC level.
15. On February 5, 2008, J. Murphy, the employer’s representative, indicated that the NJC did not have jurisdiction.
16. On December 12, 2009, the employer indicated that, since its representative at the second NJC level and its representative at the final labour relations level is the same person, it considered final the response dated May 28, 2007.
17. On May 5, 2010, the grievance was referred to adjudication before the PSLRB.

…

A. For the grievor

5 The grievor testified that, on March 31, 2003, management called him and other employees to a meeting in Bathurst chaired by Christel Pond. He learned there that his position, classified PM-01 and located in Caraquet, would be affected by a workforce adjustment (item 3 of the agreed statement of facts).

6 According to his agreement with the employer (item 4 of the agreed statement of facts), the employer provided the grievor with a vehicle to travel from his home in Shippagan to his workplace from April 28 to October 30, 2003, while he performed the duties of a PM-01 position in Caraquet one day per week and in Bathurst four days per week. At the end of the term of the agreement, the grievor informed the employer that he no longer wanted to travel. The employer’s representative, Mr. Brideau, then informed the grievor that he had no other choice but to work in Tracadie, which he did, from November 1 to 21, 2003.

7 The letter dated November 7, 2003 (Exhibit S-2-1), addressed to the grievor and signed by Louise Branch, informed him that his PM-01 position in Caraquet had been declared surplus following the elimination of its duties. The letter also presented him with a reasonable job offer. A letter of offer of employment, dated November 10, 2003 (Exhibit S-2-2), was attached to the letter dated November 7, 2003. It offered the grievor a deployment to a service delivery officer position, classified CR-05 and located in Bathurst, with salary protection at the PM-01 level. The grievor testified that he read the letter only on November 24, 2003, when he accepted the deployment offer. He said that he wrote “duress” above his signature. He did not agree with the offer and informed his manager that he would file a grievance.

8 According to the grievor, a co-worker contacted him on November 7, 2003 and asked him whether he had seen the notice of his deployment to Bathurst. The grievor said that management informed him of it only on November 21, 2003.

9 The grievor testified that, between April 1 and November 4, 2003, the employer made him no other work offers, even though he stated that other positions were available. According to the grievor, Mr. Brideau told him that the only available position was classified CR-05 and was located at the Bathurst call centre.

10 The grievor said that team meetings were held with management about the positions that were intended primarily to inform employees of management’s position at every phase of the workforce adjustment. He also said that a joint employer-union committee existed but that he had not been part of it.

11 The grievor testified that, in his discussions with the employer about his refusal of the Bathurst deployment offer, he was told that, since no other positions were available, he would have to either take it or retire.

12 In cross-examination, the grievor acknowledged receiving an email dated September 25, 2003 from Ms. Pond (Exhibit E-1) and addressed to his co-workers affected by the workforce adjustment as well as to him. It reads as follows:

[Translation]

…

As promised, please find attached the PowerPoint presentation that was presented to you yesterday during the Pan Can sector meeting, with the proposed changes. I also included a response to the question asked during the meeting.

We will wait until October 8 for you to indicate your interest.

…

A copy of the PowerPoint presentation, entitled “Recovery Plan” and shown to them at the September 24, 2003 meeting, was attached to the email. Also attached was a document that clarified a question asked during the meeting, which was whether any temporary positions existed in addition to term positions for which affected employees could be considered.

13 The employer’s representative asked the grievor whether he had read the third paragraph of the November 7, 2003 letter, which stated that he would be laid off if he refused the Bathurst deployment offer. The grievor responded that he did not dwell on the letter because it was sent to him on the same day as the deployment offer, which was November 24, 2003.

14 The grievor testified that the employer informed him that he was entitled to $500 in compensation for relocating to Bathurst for one month, from November 24 to December 24, 2003.

15 The grievor indicated that the following five positions were available in Bathurst: one PM-01 position, one AS-01 position and three CR-05 positions. He also acknowledged that the PowerPoint presentation of September 24, 2003 and Ms. Pond’s email of the following day both mentioned that affected employees had to indicate their interest in the vacant positions by October 8, 2003. The grievor testified that he did not show interest in the positions because, in his opinion, the work offered in Bathurst was not a reasonable job offer. In addition, the position classified AS-01 was a technical position for which he was not qualified.

16 The grievor indicated that, from 2003 to 2005, his son studied at Bathurst College. His son lived in the Shippagan family home at that time and carpooled daily to Bathurst. The grievor was told that, since the employer provided him with a departmental vehicle, he could not transport anyone who was not a public servant. The grievor admitted that, had he kept his job in Caraquet, his son would have had to make the same trip every day.

17 In re-examination, the grievor testified that he had refused to relocate to Bathurst because he had three children, two in elementary school. In addition, his wife worked and could not find a job in Bathurst at the same salary.

B. For the employer

18 Ms. Pond was the employer’s associate director for the Chaleur-Peninsula district. She worked for the employer from 1978 until May 2011. During her career, she held positions at different levels in many of the employer’s New Brunswick offices.

19 Ms. Pond first explained the reasons that led to imposing a recovery plan for the “Pan-Canada” program. She said that some duplication occurred in the work carried out by the federal and New Brunswick governments. Related discussions were held, beginning in 1996. The work that the provincial government would do was identified, along with the number of employees required. Ms. Pond testified that the transfer of that work to the provincial government began in 1998 and that it targeted, among other things, positions and duties classified PM-01.

20 Additionally, as indicated in the PowerPoint presentation (Exhibit E-1), the program budget, which had been roughly $7 million in 2000-01, was reduced to about $1.6 million in 2003-04. Ms. Pond testified that in 2002 management was notified of the budget cuts to programs and resources. She discussed it with her team. In November 2002, discussions were held with the national union vice-president for New Brunswick about the effects of the funding cuts on the Pan-Canada program and on another work unit.

21 According to Ms. Pond, discussions began in early 2003 with the Pan-Canada unit. Management had to shed eight positions and tried to resolve the problem by offering employees the opportunity to volunteer for vacant positions rather than going ahead with the workforce adjustment. Appointments were made between March and October 2003. All cases were resolved via voluntary expressions of interest, except for the grievor. He was the only Caraquet employee that the employer had to declare surplus under the workforce adjustment plan.

22 With respect to the Caraquet office, Ms. Pond indicated that federal and provincial employees provided services to the same clients. Five or six federal employees were in Caraquet. However, that office, due to budget constraints, could support only three service delivery officer (CR-05) positions for employment insurance and one programs officer (PM-02) position.

23 Ms. Pond testified that, in the grievor’s case, when she was gathering information for her workforce adjustment plan, she verified the number of clients in offices with PM-01 positions, which were Bathurst, Caraquet and Tracadie. According to the statistics, the Bathurst office served three times as many clients as the Caraquet and Tracadie offices. According to the PowerPoint presentation (Exhibit E-1), from January to March 2003, the Bathurst office had 1799 clients, the Caraquet office had 508 clients and the Tracadie office had 538 clients. Therefore, the employer offered the grievor the opportunity to work one day per week in Caraquet and four days per week in Bathurst, to which he agreed (item 4 of agreed statement of facts). To that end, the employer provided him with a vehicle and considered him on travel status.

24 Ms. Pond testified that copies of the PowerPoint presentation (Exhibit E-1) were provided to all employees of the Pan-Canada unit to inform them of the situation. She said that, as indicated on page 7 of the presentation, the employer verified whether positions were available with other federal agencies, such as the Canadian Food Inspection Agency in Shippagan and the Atlantic Canada Opportunities Agency in Tracadie. Ms. Pond also researched Fisheries and Oceans Canada in Tracadie. All her searches were unsuccessful. Ms. Pond also searched in vain for Government of New Brunswick positions in Caraquet.

25 Ms. Pond confirmed that on October 8, 2003 the grievor had not indicated his interest in a vacant position to the employer. She confirmed that she spoke with him about it a number of times and that Mr. Brideau told the grievor that choosing a position was in his interest. Since all the other affected employees made their choices by October 8, 2003, the only available position was that of a CR-05 in Bathurst, which the grievor accepted.

26 Ms. Pond explained that the duties of the CR-05 position in Bathurst were performed over the phone. In response to a question from the employer’s representative as to whether it would have been possible for the grievor to do the work from Caraquet via telework, Ms. Pond replied in the negative because the position required a complex telephone structure that was installed only in the employer’s building in Bathurst.

27 In cross-examination, Ms. Pond indicated that discussions were held internally in the Chaleur‑Peninsula district and with other departments to find available positions. Additionally, related discussions took place with two union locals, for the Human Resources Centre and for National Services.

28 Ms. Pond testified that other departments were contacted about one to two months before September 24, 2003 to check for available positions. She said that she initiated the communications herself in some cases and that human resources representatives did so for others. She said that few federal departments were in the region and that no positions were available less than 16 kilometres from Caraquet, the grievor’s headquarters area. She personally contacted management at Government of New Brunswick agencies in Caraquet, Shippagan and Tracadie, but no positions were available.

29 Ms. Pond confirmed that the grievor’s position was declared surplus because he did not express an interest in a vacant position before October 8, 2003. Consequently, she had to make the decision that the grievor would be the only Caraquet employee declared surplus under the workforce adjustment plan.

30 Ms. Pond said that, although the grievor received a letter indicating that his position was surplus at the same time as the Bathurst deployment letter of offer, the two other affected employees who held PM-01 positions in the Chaleur‑Peninsula district were treated in the same way as the grievor.

31 Ms. Pond said that, on September 24, 2003, she gave the affected employees the PowerPoint presentation (Exhibit E-1). That same day, a human resources representative gave a workforce adjustment presentation. Employees’ questions were followed up. Ms. Pond added that management was trying to find suitable positions and that, when a position was found within a reasonable distance that the employee accepted, the process completed. Otherwise, the employee’s position had to be declared surplus under the workforce adjustment plan. If a position located more than 16 kilometres away was accepted, the finance team handled it.

32 Ms. Pond reiterated that, given the telephone structure of call centres, a telework position could not be created in another building for a single employee.

33 When asked again, Ms. Pond said that everyone who had been sent the September 25, 2003 email (Exhibit E-1) attended the unit meetings. Managers and human resources representatives also attended. She added that the union local president was one of the affected employees and that he attended all the meetings. Furthermore, human resources informed the union’s national vice-president for New Brunswick in November 2002 that a workforce adjustment plan would be put in place.

III. Summary of the arguments

A. For the grievor

34 For the grievor’s representative, the question at issue is whether the deployment offer to a position classified CR-05 in Bathurst was reasonable, according to Appendix “E” of the collective agreement.

35 The grievor’s representative submitted that many irregularities occurred in the workforce adjustment process, so much so that the grievor had trouble understanding the employer’s position. Additionally, he submitted that the documents in Exhibit E-1 were contradictory and difficult to interpret. He claimed that it seemed that no offer of voluntary deployment was made in writing.

36 The grievor’s representative maintained that the grievor did not have an opportunity to refuse the deployment offer because the notice of appointment was sent three weeks before he received the offer in writing. Furthermore, he was never offered any position other than the one classified CR-05 in Bathurst and felt that he had no choice but to accept it.

37 The grievor’s representative indicated that the deployment offer made to the grievor was not reasonable given his personal and family situation. The CR-05 position offered to him in Bathurst was 100 kilometres from his home in Shippagan and 70 kilometres from his Caraquet workplace, which is why he asked for a telework arrangement in Caraquet.

38 The last page of the September 24, 2003 PowerPoint presentation, which indicated that employees had to show interest in a vacant position by October 8, 2003, was not clear to the grievor. In addition, he did not consider the positions offered as reasonable job offers within the meaning of Appendix “E” of the collective agreement.

39 The grievor’s representative agreed that the employer made reasonable efforts to find the grievor another position but emphasized that the efforts stopped approximately three months before his position was declared surplus. On that point, the grievor’s representative stated that Ms. Pond confirmed that those efforts ceased one or two months before September 24, 2003.

40 The grievor seeks as compensation the travel costs that he incurred between November 24, 2003, the date on which he accepted the CR-05 position in Bathurst, and March 31, 2005, his last day of work in Bathurst, since he was deployed to a CR-05 position in Caraquet as of April 1, 2005 (item 11 of the agreed statement of facts). The $500 that the employer paid him for the first month of his assignment in Bathurst should be subtracted from those costs. He also seeks a declaration that the deployment to Bathurst was not reasonable.

41 In support of his position, the grievor referred me to Donald v. Treasury Board (National Defence), PSSRB File No. 166-02-28605 (19990728), and Kreway v. Canada Customs and Revenue Agency, 2004 PSSRB 172.

B. For the employer

42 The employer’s representative submitted that Donald does not apply in this case because it dealt with the relocation of a work unit from Vancouver to Halifax. Furthermore, she submitted that, in Kreway, the employer did not send the employee the letter required by the workforce adjustment provisions when the positions were declared vacant, which is not the issue in this case.

43 As for the grievor’s argument that the Bathurst deployment offer was not reasonable because errors occurred in the process, the employer’s representative maintained that that argument modified the nature of the grievance. She submitted that, during the grievance process, the grievor never raised that the deployment offer did not conform with any steps in the process. She emphasized Ms. Pond’s uncontradicted testimony that the union was involved in the workforce adjustment process from the beginning. In support of her position, the employer’s representative referred me to Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.), and to Shneidman v. Canada (Attorney General), 2007 FCA 192.

44 The employer’s representative submitted that the grievor had to show that the employer violated the collective agreement and that it did not make an effort to make him a reasonable job offer. She stated that no evidence showed that the employer stopped looking for other positions suitable to the grievor. She added that the employer fulfilled its responsibilities under Appendix “E” of the collective agreement. Referring to the definition of “Public Service” in Appendix “E”, the employer’s representative pointed out that the employer was under no obligation to inquire as to whether positions were available with the Government of New Brunswick.

45 The employer’s representative claimed that, since this was not a case of reasonable accommodation, the grievor’s family status and his request to perform his duties in Caraquet via telework were irrelevant. The issue is the interpretation and application of the collective agreement.

46 The employer’s representative indicated that the budget cuts significantly impacted staff. She recalled that the only positions available in Bathurst were one position classified PM-01, one position classified AS-01 and three positions classified CR-05. According to the employer’s representative, the evidence showed that, when the employer asked the affected employees to show interest, the PM-01 and AS-01 positions were filled and that only the CR‑05 positions remained. In addition, no positions were available in the grievor’s headquarters area, which was within 16 kilometres of Caraquet.

47 The employer’s representative claimed that the primary goal of Appendix “E” of the collective agreement was to keep the grievor employed in the public service and not in a particular position or particular place. On that point, she cited Kreway and Khurana v. Treasury Board (Veterans Affairs), PSSRB File Nos. 166-02-24750 to 24752 and 25270 (19941107). The employer’s representative indicated that the criteria of the definition of a “reasonable job offer” was met, as follows: the positions classified PM-01 and CR-05 are at the same level, the grievor was mobile and trainable, and it was impossible to offer him a job in his headquarters area, which was Caraquet. The employer’s representative indicated that, since the distance between Caraquet and Bathurst is 70 kilometres, it is only 54 kilometres outside the grievor’s headquarters area.

48 In response to the grievor’s argument that his deployment to Bathurst impacted his personal life, the employer’s representative said that the grievor chose to maintain his residence in Shippagan and travel rather than accept relocating to Bathurst.

49 The employer’s representative stated that the grievor’s request to perform his duties via telework from Caraquet was irrelevant because his substantive position had been deployed to Bathurst.

50 As for the grievor’s argument that he had trouble understanding what was happening with the workforce adjustment, the employer’s representative submitted that the November 10, 2003 letter sent to the grievor was clear. He was not interested in the position classified AS-01 in Bathurst. Only a position in Caraquet was acceptable to him.

51 As for the damages that the grievor seeks, the employer’s representative maintained that he did not submit proof of the actual expenses incurred by his deployment to Bathurst. She also maintained that, in Kreway, the adjudicator refused to award compensation because no evidence showed that the employer did not act in good faith. According to the employer’s representative, the grievor did not show that the employer violated the collective agreement.

52 For the criteria of a reasonable job offer, the employer’s representative cited Canada (Attorney General) v. Edwards, Federal Court File No. T-105-98 (19990118), modified on other grounds by Edwards v. Canada (Treasury Board), [2000] F.C.J. No. 645 (QL) (C.A.). She submitted that the employer made the grievor a reasonable job offer and that I must dismiss the grievance.

C. Grievor’s rebuttal

53 The grievor’s representative submitted that the deployment offer to Bathurst was not reasonable because it was not made at the appropriate moment, which was before the notice of appointment was issued.

IV. Reasons

54 The collective agreement applicable in this case was signed on November 19, 2001 between the Treasury Board and the union for the Program and Administrative Services Group bargaining unit. The workforce adjustment provisions are an integral part of the collective agreement and are contained in its Appendix “E”. The objectives of that appendix are as follows:

Objectives

It is the policy of the Employer to maximise employment opportunities for indeterminate employees affected by work force adjustment situations, primarily through ensuring that, wherever possible, alternative employment opportunities are provided to them. This should not be construed as the continuation of a specific position or job but rather as continued employment.

To this end, every indeterminate employee whose services will no longer be required because of a work force adjustment situation and for whom the deputy head knows or can predict employment availability will receive a guarantee of a reasonable job offer within the Public Service…

55 Appendix “E” of the collective agreement contains the following definition of “work force adjustment”:

Work force adjustment (réaménagement des effectifs) - is a situation that occurs when a deputy head decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work, the discontinuance of a function, a relocation in which the employee does not wish to relocate or an alternative delivery initiative.

56 A “reasonable job offer” is defined as follows in Appendix “E” of the collective agreement:

Reasonable job offer (offre d’emploi raisonnable) - is an offer of indeterminate employment within the Public Service, normally at an equivalent level but could include lower levels. Surplus employees must be both trainable and mobile. Where practicable, a reasonable job offer shall be within the employee’s headquarters as defined in the Travel Directive…

57 Part I of Appendix “E” of the collective agreement, entitled “Roles and responsibilities,” among other things stipulates the following about departments’ responsibilities:

1.1. Departments

1.1.1 Since indeterminate employees who are affected by work force adjustment situations are not themselves responsible for such situations, it is the responsibility of departments to ensure that they are treated equitably and, whenever possible, given every reasonable opportunity to continue their careers as Public Service employees.

…

58 The burden of proof was on the grievor to demonstrate that the deployment offer to Bathurst that the employer made to him as part of the workforce adjustment in the Chaleur-Peninsula district was not a reasonable job offer as defined in Appendix “E” of the collective agreement.

59 Before addressing the merits of the case, I will consider the employer’s argument that, by claiming that its offer was unreasonable due to irregularities in the process, the grievor changed the nature of the initial grievance at the hearing. According to the evidence, the error that the grievor attributed primarily to the employer is that he heard of his notice of appointment to Bathurst from a co-worker on November 7, 2003, two weeks before management informed him of the appointment on November 24, 2003. It is true that the wording of the grievor’s grievance does not specifically refer to errors in the workforce adjustment process. However, as mentioned in item 7 of the agreed statement of facts, the grievance alleges that “[translation] . . . the employer did not make me a reasonable job offer in accordance with Appendix E of my collective agreement. . . .” I consider that that wording allows the grievor to attempt to demonstrate that errors allegedly committed by the employer were inconsistent with the provisions of Appendix “E” of the collective agreement. Consequently, I reject the employer’s argument that the grievor tried to change the nature of his grievance at adjudication.

60 The grievor did not challenge the merits of the employer’s decision to invoke a workforce adjustment in the Chaleur-Peninsula district. In any case, the evidence clearly demonstrated that the employer had legitimate reasons for using a workforce adjustment, which were due to deep budget cuts to programs and resources.

61 The grievor alleged that the employer, in his case, committed irregularities during the workforce adjustment process, thus violating Appendix “E” of the collective agreement. The grievor’s testimony on that allegation was rather vague. What I took from the grievor’s evidence about irregularities in the process was that he insisted that he was advised of his deployment shortly before he received the written offer of the Bathurst deployment.

62 Clause 1.1.6 of Appendix “E” of the collective agreement stipulates that affected employees must be informed in writing that their services will no longer be required. The letter must indicate the options available to them. In addition, clause 1.1.14 states that employees must be officially informed that they are subject to a workforce adjustment process and that the provisions of Appendix “E” apply. The evidence demonstrated that the employer complied with those requirements in its letters to the grievor (Exhibits S-2-1 and S-2-2). That differs from Kreway, in which the employer did not give the grievor a letter, which was required by the workforce adjustment provisions, when his position was declared surplus.

63 In addition, a careful reading of Appendix “E” of the collective agreement shows that it contains no provisions about notices of appointment. Nor does Appendix “E” provide the sequence by which the employer must provide the required documents to employees affected by a workforce adjustment. No direct evidence was adduced of the process used to communicate the Bathurst deployment offer to the grievor at the same time as the notice declaring his position surplus. On that point, Ms. Pond’s uncontradicted testimony was that two other employees in PM-01 positions were treated in the same manner as was the grievor.

64 I understand that the grievor would have preferred to find out about his notice of appointment directly from the employer, rather than being told of it by a colleague. However, that does not constitute a violation of Appendix “E” of the collective agreement since the appendix does not address that issue. In addition, the grievor did not show that it caused him a prejudice.

65 According to the grievor, the evidence showed that the deployment offer to Bathurst was not reasonable because he had to travel from his home in Shippagan to Bathurst, which is outside his headquarters area. However, he refused to relocate to Bathurst for family reasons, which he was entitled to do.

66 According to the definition of “reasonable job offer,” quoted earlier in this decision, the employer must offer a job in the employee’s headquarters area “[w]here practicable.” Ms. Pond’s testimony described the employer’s search for a job for the grievor within his headquarters area. As mentioned, no positions were available in other departments in the Chaleur-Peninsula district. The grievor testified that positions were available other than those classified CR-05, but he did not submit evidence of them.

67 The grievor’s representative claimed that, according to Ms. Pond’s testimony, the employer stopped making an effort to find him a job one or two months before September 24, 2003, the date of the PowerPoint presentation. I took from her testimony that Ms. Pond said that other departments were contacted one or two months before September 24 to find out if any positions were available. She also said that very few federal departments were in the Chaleur-Peninsula district and that nearly none were in the grievor’s headquarters area. Although the grievor’s representative accused the employer of not continuing its search until the date on which the grievor’s position was declared surplus, the grievor did not provide any direct evidence on this point.

68 Based on the evidence, I find that the employer made a sincere effort and that it showed good faith when it tried to find the grievor a job in his headquarters area. When able, the employer offered the grievor a deployment to Caraquet at the CR-05 group and level with salary protection at the PM-01 group and level (item 11 of the agreed statement of facts). That position was later reclassified to the PM-01 group and level (item 13 of the agreed statement of facts). As the adjudicator found in Khurana, “[t]he Directive clearly states that its emphasis is on employment security rather than job security.”

69 In view of the evidence and all the circumstances in this case, I find that the Bathurst deployment offer that the employer made to the grievor under Appendix “E” of the collective agreement met all the criteria of a reasonable job offer and that, consequently, the employer did not violate the collective agreement.

70 For the above reasons, I make the following order:

V. Order

71 The grievance is dismissed.

April 19, 2012.

PSLRB Translation

Steven B. Katkin,
adjudicator