Date:  20140707

File:  566-09-5930 to 5932

 

 Citation:  2014 PSLRB 69

Public Service Labour Relations Act

Before an adjudicator

Between

 

Krisztina Malisza, Hacene Serrai and Nicolino Pizzi

 

Grievors

 

and

 

National Research Council OF Canada

 

Employer

Indexed as

Malisza v. National Research Council of Canada

 

In the matter of individual grievances referred to adjudication

Before:  Margaret T.A. Shannon, adjudicator

For the Grievors:  Jeff Ryder, Professional Institute of the Public Service of Canada

For the Employer:  Caroline Engmann, counsel

Heard at Winnipeg, Manitoba,

March 18 to 20, 2014.

REASONS FOR DECISION

I.  Individual grievances referred to adjudication

[1]  The grievors, Dr. Krisztina Malisza, Dr. Hacene Serrai and Dr. Nicolino Pizzi, were all employed as research officers (ROs) by the employer, the National Research Council of Canada (NRC), and were subject to the agreement between the NRC and the Professional Institute of the Public Service of Canada for the Research Officer/Research Council Officer (RCO) Group; expiry date, July 19, 2011 (“the collective agreement”). The grievors were advised on March 24, 2011 that they had been identified for layoff as their positions were declared surplus to requirements. The effective date was May 25, 2011, although Dr. Serrai’s date was later changed to July 11, 2011. The grievors alleged that the employer violated clauses 3.6.6 and 3.6.13 of the Workforce Adjustment Policy (WFAP), which forms part of the collective agreement, by failing to apply the “reverse order of merit” (ROM) principle. The three grievances also allege a violation of article 28 (No discrimination) of the collective agreement.

II.  Summary of the evidence

[2]  Dr. Pizzi was a senior research officer in the NRC’s Biomedical Informatics Group in the Institute for Biodiagnostics (IBD). He began his career with the NRC in 1984 and held the position of senior RO (SRO) from 1992 until his layoff. The funding for his position was “A-based,” which meant that the federal government allocated the funds annually. His position was not revenue-funded.

[3]  Between 2006 and 2011, Dr. Pizzi was involved with computational systems and statistics. He was head of the program, which had two goals: the use of computational systems for pattern identification, and providing statistical and computing support to other researchers in the Institute Biomedical Diagnostics (IBD or “the institute”).

[4]  Dr. Pizzi was advised on March 24, 2011 that his position was affected. He was invited to attend a meeting with the institute’s director general to discuss the impact of budgetary restrictions and the resulting workforce adjustment (WFA). Before the meeting, his group leader advised him that he would be laid off. At the meeting, Dr. Ian Smith, Director General of the institute, gave him a letter advising him that his position was being eliminated (“the surplus letter”; Exhibit 2, tab 7).

[5]  When he read the surplus letter, Dr. Pizzi became very surprised, since it did not identify the program in which he was involved. Rather, it identified the “Scopira” program, which had ended in fiscal year 2005-2006. Scopira is software developed by the institute to help analyze medical data. The technology was mature; no further research or development was being done in that area, and Dr. Pizzi had moved on to other projects. On his time sheets, no time had been recorded for the Scopira program since 2006. In addition, his surplus letter identified the elimination of the “Modelling of Infectious Diseases Program,” to which he had never been assigned. He did assist those involved in the modelling program, but it was not his primary area of involvement.

[6]  When he questioned why the elimination of a revenue-based program resulted in the layoff of A-based funded positions, Dr. Pizzi was advised by his group leader Dr. Somorjai that he had not been involved in the decision-making process. Dr. Smith did not consult the group leaders in order to identify who was to be laid off. The decision came as a surprise to him.

[7]  Dr. Pizzi produced his time sheets (Exhibit 3), which covered the period from fiscal 2006-2007 until the end of fiscal 2010-2011. Each sheet identifies to which project his time was allocated. His immediate supervisor reviewed the time sheets and signed them off. At no time did anyone question his time sheets over the last five years before his layoff. Dr. Pizzi took his time sheets (Exhibit 3) and put them into an Excel spreadsheet, looked at all the codes used and tabulated the results in a summary spreadsheet (Exhibit 4). The bulk of his time was spent in computational services and statistics; none was related to the Scopira project. Finally, only 5% of his time was spent on the mathematical modelling project helping those responsible for the program do such things as write grant requests.

[8]  Between 2010 and 2011, Dr. Pizzi was primarily involved in computational systems and statistics. Scopira was part of his work in that area. The NRC webpage describes the toolkit that was developed through Dr. Pizzi’s work on Scopira. It does not indicate that the developmental work finished in 2006, when he stopped attributing time to the program in his time sheets. The ongoing work was maintaining the Scopira toolkit.

[9]  On cross-examination, Dr. Pizzi was referred to the time sheets for 2012 (Exhibit 2, tab 16), in which he had attributed time to the Scopira project. He denied that this reflected work on the Scopira project; rather, it indicated his use of the program in his research. He stated that he was working in stochastic feature subset selection and that he used Scopira for his research. Any entries after 2006 related to Scopira indicate that he used it and not that he worked on it. Dr. Pizzi did assist with problems that arose with Scopira until the end of the project in 2006. Dr. Pizzi’s work plan for 2009-2010 indicated that the project was one of his objectives for that year. The work done was promotional in nature and was not developmental.

[10]  The WFA business case (Exhibit 2, tab 5) identified the affected positions and showed others at the same level that were retained. Dr. Murray Alexander was the head of the mathematical modelling program that was eliminated. Dr. Pizzi testified that he could have filled any of the remaining RCO positions, one of which was directly related to his work in pattern recognition. The other related to imaging, where he had previously worked. The RCOs do directed research, as determined by the RO. The RCOs may specialize in certain areas, such as statistics.

[11]  Dr. Pizzi’s position was the only one affected in his group, and he was head of the program. The program that was eliminated was revenue-based, which should have had no impact on his A-based funded program and his position.

[12]  Dr. Pizzi asserted that had the ROM principle been properly applied, the NRC would have retained him. He had the most experience and was the most senior in the group, having approximately 26 years of experience in his field. His past performance, as outlined in his performance reviews (Exhibit 2, tab 16), had been fully satisfactory, and his overall performance was excellent.

[13]  Dr. Pizzi should not be penalized for assisting the Disease Modelling Group. He was asked to provide assistance with contacting public health groups, securing grants and writing applications for funding. He was never assigned officially to this group. However, he was an advocate on behalf of the program and had conducted tours for visiting dignitaries, to whom he explained the program. He also helped group members organize two public-health workshops. His assistance was sought out and provided because of his knowledge of the funding process and his contacts in the public‑health community.

[14]  Dr. Pizzi was no longer conducting Scopira-related research or development. The degree to which Scopira was mentioned in his performance reviews and work plans was intended to be an indication of what projects were using his software, not that work on it was ongoing.

[15]  Dr. Pizzi’s group developed data analysis software and the data analysis algorithms required for the software. His group worked collaboratively with other groups within Biomedical Informatics (BI) in computational systems, algorithm development, statistical analysis, mathematical modelling and image processing. All are interrelated, and the techniques used in one discipline are transferable to all applicable sub-disciplines. The BI group met daily as a team to discuss its research. Some functions being carried on by his colleagues were related to his work. Dr. Pizzi was confident that he could have led any of the RCOs or ROs in the mathematical modelling projects.

[16]  The reason given for declaring Dr. Pizzi surplus was the discontinuance of two programs: the modelling of infectious diseases project and Scopira. He was never formally assigned to the modelling of infectious diseases project, as is evidenced by the NRC website, which did not identify him as attached to it. He never conducted any research in that area, even though he was identified as a co-author of a paper that resulted from a conference he organized.

[17]  Dr. Pizzi’s work ended in February 2012. He worked during his notice period in order to wrap up some contract work that he had underway. He secured alternate employment in September 2013. When he left the NRC, he was earning $122 000 per year, which included a terminable allowance. In his new position, he earns $105 000.

[18]  Dr. Malisza was employed as an RO in the Magnetic Resonance Research and Development (MRR&D) group at the time of her layoff. She began her career with the NRC as a visiting fellow in 1996 and became an indeterminate NRC employee in 1998. Her work has primarily involved developing hardware and software as well as disease modelling. She has worked with magnetic resonance imaging (MRI) in conducting animal and human research.

[19]  As Director of Imaging Systems at St. Boniface Hospital in Winnipeg, Manitoba, she was head of the only human-research MRI system; she had been directed to make the system work. Due to technical difficulties, the system was never good enough for human work and was consigned to animal research. Dr. Malisza then began doing work with MRI, developing protocols for pediatric imagining. She spent 10 years in that work until 2009, when the program was ramped down due to lack of funding.

[20]  Following her work in paediatric imaging, Dr. Malisza began working in cancer research, focusing on two areas: research, and hardware development. In the fall of 2010, only months before she was advised of her layoff, she was directed to work only on the breast cancer project. She was to make sure that the hardware was functioning properly and was to develop software for use in the research project. She was working in that area when she was advised on March 25, 2011 that she was affected by the WFA (Exhibit 2, tab 9). She felt targeted by the notice, even though on cross-examination she admitted that there was nothing nefarious in the employer’s actions, as she had only recently joined the group conducting breast cancer research. Dr. Malisza’s position was the only one eliminated. Breast cancer research has continued with the addition of new research grants.

[21]  Two positions were affected by the WFA in the MRR&D: Dr. Malisza’s and Dr. Serrai’s in Magnetic Resonance (MR) Technology Development. Dr. Malisza, like Dr. Pizzi, occupied an A-based funded position. She has the same understanding of position funding as does Dr. Pizzi. Likewise, her understanding is that ROs and RCOs do essentially the same work and that she too was qualified for any of the positions that remained in the MRR&D and in MR Technology Development.

[22]  Since her layoff, Dr. Malisza has been unable to find work. She has been allowed visitor access to the building to supervise her doctoral student, which has provided her with office space and with the opportunity to conduct her own research.

[23]  Paul Wiebe is General Manager of the NRC’s Medical Devices Portfolio. At the time of the layoffs, he was Director, Business and Corporate Services, of the institute. The changes in 2011 resulted from a fundamental shift within the NRC, which saw it restructured into 3 portfolios from 19 institutes. The transformation de-emphasized curiosity-based research and put more emphasis on industry-based research and on research the government identified as a priority.

[24]  According to Mr. Wiebe, A-based funded positions are basically funded from monies received by the NRC, supplemented by grants. The institute received funding from the Genomics and Health Initiative (Exhibit 2, tab 4). This funding was discontinued when the government’s priorities shifted. Dr. Pizzi worked on a series of contracts with Fermion, a company with which the NRC conducted business, while Dr. Malisza worked on contracts from the University of Alberta and Queen’s University. In the area of MR research and development, Dr. Serrai was one of four ROs who worked on contracts.

[25]  In 2011, high-level discussions were held about the institute’s financial situation. Programs had to be reduced. The Director General made the selection based on the lowest priority programs. No discussions with others in IBD occurred about what programs were to be cut and about who would be affected.

[26]  Joey Weir is a human resources generalist at the NRC and was involved in the 2011 WFA. In late January 2011, it was determined that staff reductions needed to occur as programs were discontinued. A business case was prepared to support this recommendation. He was called upon as needed by the Director General or General Manager to assist with the process. The management committee dealt with the group leaders on a regular basis as needed to identify the programs and the employees affected. Dr. Smith informed him of the reductions and of what needed to happen. Mr. Weir then provided the information required to have the business case approved.

[27]  Following the approval of the business case by the vice-president of human resources, Mr. Weir set up the Workforce Adjustment Consultation Committee meeting, which was held with the bargaining agent on March 11, 2011. At the meeting, the bargaining agent did not raise the ROM issue for selecting employees to be laid off. A ROM process for the RO group is extremely rare and was unheard of within the NRC. A ROM process is conducted when affected employees are selected from a group of positions that are either identical or virtually identical. In previous WFAs involving ROs, ROM was not used as the positions identified were not performing the same work. RO positions are person-based. Different ROs do not typically conduct the same research. The ROs affected had to be deemed substantially involved in the research that was eliminated. If an RO was considered involved in areas of continuing research, then that RO was not affected. The grievors were asked to identify their areas of interest and preferred location following which the employer attempted to market the grievors as required by the collective agreement.

[28]  The grievors’ main issue was the lack of ROM in their selection. The NRC did not deem ROM necessary as no other ROs were substantially involved in the affected areas. The grievors also had an issue with the fact that they were not considered for retention as RCOs. Even had the employer undertaken a ROM process, the grievors would not have been considered for retention as the ROM process is specific to classification group and level; the employer was not required to look beyond the RO category. The main difference between the RO and RCO groups is education. The ROs have doctorates (or master’s degrees in engineering); the RCOs may have doctorates. Their functions may be related if they work in the same field.

[29]  Dr. Smith was Director General of the institute until his retirement in 2013. Within the institute were many divisions and groups whose goal was to be self‑sustaining through revenue generation. He started working on the business case, proposing a WFA after 10 years of budget cuts. He knew that the institute was facing another $1 million reduction from an $8 million budget. A new business case had to be developed to describe how the institute would survive.

[30]  To prepare the business case, Dr. Smith considered the NRC and its mandate and those of the individual groups. He looked at group output versus group mandate. He evaluated a group’s success on the basis of products produced, useful publications, revenue sources and time to market of the product it produced. The main consideration overall was value for money to the taxpayer. In assessing these criteria, he consulted the institute’s director of research and possibly Mr. Wiebe. He did not consult group leaders as they were too involved in the research. The process determined that some personnel had to be laid off. Programs that were not part of the core NRC mandate were terminated. There was no need to assess who was to be released via a ROM process as functions were being eliminated, and the people performing those functions were let go.

[31]  Scopira and modelling infectious diseases were two functions eliminated. Scopira was designed to classify diseases but never did, so it was eliminated. The developmental work on Scopira ended in 2006, and no one was assigned to it in 2010 and 2011. Dr. Smith was not surprised that no time had been recorded on Scopira since 2006.

[32]  Modelling infectious diseases is not the primary role of the mathematical modelling group. Dr. Pizzi was working on modelling infectious diseases, even though Dr. Smith was unsure exactly what Dr. Pizzi did in the program. Dr. Pizzi’s group leader provided little information on what projects Dr. Pizzi was involved in. He was always the program spokesperson. Whenever the institute had visitors, he was the one who spoke to them about the program. The government built a $500 million lab in Winnipeg to study infectious diseases, so it was determined that it was best to leave it to that organization, and the institute’s program was eliminated.

[33]  Dr. Alexander was involved in mathematical modelling and was the math consultant for the entire institute. Unlike the work done by Dr. Pizzi, Dr. Alexander’s work was critical to many of the projects underway at the institute. For this reason, he was not affected by the WFA. Dr. Somorjai worked on many projects, including disease classification, but did not, as Dr. Pizzi claimed, work on modelling diseases.

[34]  Dr. Malisza was managing a breast cancer project developing new techniques for locating and identifying breast tumours. She was not doing any other work, although she had been involved previously in studying autism and fetal alcohol syndrome. Those projects were terminated, and she was given the breast cancer project. Funding for the breast cancer project dried up, and her position was eliminated.

[35]  Dr. Serrai was the only RO involved in multi-transmit MR applications, which is another project that was eliminated. The project had taken too long and had not produced anything worthwhile, so it was eliminated.

[36]  Others ROs were retained. Their work was producing results, such as the work of Dr. Bezabeth, which made it possible to detect colon cancers with 98% accuracy. Dr. Hoult was an expert in all aspects of MRI and wrote a textbook on the subject. He was a resource to everyone at the institute. Dr. Ryner was the group leader and an expert in two-dimensional imaging. Ninety percent of his time was spent managing the group. Others retained were post-doctoral researchers on term positions. The work of the remaining ROs was interrelated depending on the nature of the project. Unlike Dr. Pizzi, who was developing hardware, the others were mathematicians. Dr. Somorjai and Dr. Alexander were involved in four out of the six remaining projects.

[37]  No one was working on the breast cancer project unless he or she was working on building a coil for use in that research. Six ROs worked in MR research and development under one group leader. The projects were very diverse and not homogenous. Dr. Serrai was working only on developing hardware, while Dr. Malisza was doing biological research. Human research of this type needs hundreds of subjects and costs from $1 million to $2 million per year. Continuing this research was no longer viable.

[38]  No ROM was done on individuals; it was conducted on the projects, not on the people involved. The overall criterion was the merit of the project within the NRC’s mandate. All three grievors were equally as good as those ROs retained; the question was whether they were essential.

III.  Summary of the arguments

A.  For the grievors

[39]  The key issue is the application of the WFAP in the round of layoffs. The grievors were notified by letter on March 24, 2011 that their positions were to be eliminated on May 25, 2011, due to the elimination of their projects. The NRC violated clause 3.6.6 of the WFAP when it failed to apply the ROM provisions in the WFAP in order to determine surplus employees for layoff under clause 3.6.6.3. In addition, the NRC erred in selecting Dr. Pizzi for layoff as a result of programs in which he was either not involved or in which he had performed no work for several years. The NRC only recently assigned Dr. Malisza to the breast cancer research project. The employer did so knowing that there were budgetary constraints. It acted in bad faith and arbitrarily.

[40]  Mr. Wiebe’s testimony is of no value as he was not involved in the decision‑making process or in the WFA process.

[41]  The grievors were part of a group who performed related functions and worked as part of a team. The employer has given no proper justification for its failure to apply the ROM process. Mr. Weir’s assertion that ROM applies only to positions at the same classification group and level should not be considered, as the ROs are in specialized positions.

[42]  Dr. Smith was the main decision maker. He testified that in his opinion, there was no need to apply the ROM process to the ROs since it was applied to the projects. Individuals affected were assigned to the identified projects. He made the determination of which projects to eliminate on his own without consulting the group leaders who would have been better able to identify the contributions of each RO. While ROs are specialized and are known for their expertise in their respective areas, it is not uncommon for them to move from one position to another. They are part of a team and as such can perform interrelated functions.

[43]  The bargaining agent disagreed with Dr. Smith’s contention that the results would have been the same even had a ROM been applied. There are clearly other ROs on the organizational charts for the Mathematical Modelling Group and for the MRR&D Group who would have not scored as high as the grievors would have on assessments through the ROM process. The employer said only programs had to go through the ROM process, which determined who was to be laid off. Dr. Smith admitted that Scopira had been discontinued six years before then. He was not surprised that Dr. Pizzi did not attribute time to the Scopira project in his time sheets (Exhibit 3) or in the analysis he prepared of them (Exhibit 4).

[44]  Based on these exhibits, infectious disease modelling occupied only 5% of Dr. Pizzi’s time. None of the employer’s witnesses disputed it. Dr. Smith confirmed that the business case was developed shortly before the March 24, 2011, notices were sent. That was six months following Dr. Malisza’s assignment to the breast cancer research project. Yet, the NRC website shows that the project was continuing in 2012. Dr. Smith dismissed this by saying that the website is out of date.

[45]  Dr. Pizzi had 27 years of service at the time of his layoff. He has provided clear and cogent evidence concerning the two programs identified in his letter of March 24, 2011. He had not been involved in the Scopira project since 2006, and only 5% of his time was dedicated to infectious disease modelling. His time sheets (Exhibit 3) show in detail the work he has done in the past five years.

[46]  Dr. Pizzi and Dr. Malisza were indeterminate employees holding A-funded positions, not revenue-based positions. The lack of Genomics and Health Initiative funding was identified in the business case as the reason for cutting projects. Dr. Pizzi was never formally assigned to the eliminated projects, and no evidence contradicted that assertion. The description of the mathematical modelling program (Exhibit 5) does not list him as part of that group.

[47]  Dr. Malisza had 15 years of service at the time of her layoff. For the last 10 years of that time, she worked in paediatric imaging, until the program was eliminated. She was then assigned to the breast cancer research project. Six months later, the program was cited for elimination, and she was identified for layoff. Her main duties since joining the breast cancer project were working with diffusion imaging, building coils and securing funding. The organization charts submitted of the MRR&D group identify other ROs in the various areas, and there was no evidence that they were not performing related functions. The MR Technology Group was part of Dr. Malisza’s group as well. Three ROs are identified on that organization chart. The ROM process should have been applied to both the research and development and technology groups together.

[48]  Arbitrary is defined in Black’s Law Dictionary, 5th Edition, as being synonymous with bad faith or a failure to exercise honest judgement. Bad faith is defined in the same dictionary as fraud or an intent to deceive or as a conscious doing of a wrong. Clause 3.6.1.3 of the WFAP (Exhibit 2, tab 3) requires the employer to treat employees equitably and to give them every reasonable opportunity to continue their careers either within the NRC or outside it. Equity requires that the employer act in good faith and not in an arbitrary fashion in determining which programs are eliminated and which employees are thus affected. The WFAP should have been applied in its entirety. The grievors were not treated equitably. Despite being of the same classification group and level as others performing related functions and operating as part of the team, they were singled out for layoff. This was an arbitrary decision on the part of Dr. Smith. It was not transparent; nor was the reason identified for layoff correct. One individual should not decide who will be laid off without consulting those with knowledge of the projects under review. Decisions to eliminate projects and lay off people should not be based on assumptions such as who conducts public tours and who is the most expendable.

[49]  The employer never seriously considered ROM. One grievor was incorrectly identified as being assigned to the wrong program. There is no clear evidence that the breast cancer research project was actually discontinued.

[50]  When the WFAP has not been followed, as was the case in Powell v. National Research Council of Canada, 2010 PSLRB 25, the remedy should be left to the parties to decide. In the Powell case, the grievor was awarded one year of salary since he would have been laid off one year later than he was. Had Dr. Pizzi’s projects been correctly identified, in all likelihood, he would have remained on staff for another year. Dr. Malisza would not have been laid off until the rest of the employees in the work groups were affected based on her performance, experience and behavioural competencies, had ROM been correctly applied.

B.  For the employer

[51]  The employer’s position is that the conditions precedent for ROM were not all met; therefore, there was no obligation to undertake such an evaluation. Despite Dr. Pizzi’s testimony, there is clear evidence that he was involved with Scopira and infectious disease modelling. His position was integral to these programs.

[52]  The three grievors advanced two main arguments in support of their grievances: the employer failed to apply the ROM process as required by the WFAP, and therefore violated the collective agreement, and Dr. Pizzi was wrongly selected for layoff. The grievors took no issue with the legitimacy of the employer’s decision to discontinue or eliminate the six programs outlined in the business case (Exhibit 2, tab 5). In line with the NRC’s mandate, the IBD’s clear target was to develop medical devices to diagnose human diseases and to rapidly transfer the technology to industry and end users. Therefore, a decision was made to terminate programs that were peripheral to or that no longer met the IBD’s strategic focus. The grievors were involved in the research conducted in the discontinued programs.

[53]  The nature of an RO’s work is person- or incumbent-related, which does not lend itself easily to the ROM process as do positions with duty-oriented job descriptions. Each grievor in this case was required to perform functions related to the discontinued programs and worked exclusively on those projects. Contrary to the position taken by Dr. Pizzi, his performance reviews, publications and correspondence supported the conclusion that his position was an integral part of two discontinued programs i.e., infectious disease modelling and Scopira.

[54]  None of the grievors disputed the employer’s decision to eliminate programs. They acknowledged the employer’s authority to make decisions under the Financial Administration Act (R.S.C. 1985, c. F-11; FAA) and the National Research Council Act (R.S.C. 1985, c. N-15; NRCA). Under the NRCA, the employer has the same authority under section 7 of the FAA as a separate employer (Research Council Employees’ Association v. National Research Council of Canada, 2013 PSLRB 26, at para 28). Sections 7 and 11.1 of the FAA grant the employer a broad unlimited power to set general administrative policy for the federal public service and to determine and control its personnel management. Paragraph 7(1)(b) of the FAA grants the employer the exclusive authority on all matters relating to the “. . . organization of the federal public administration or any portion thereof, and the determination and control of establishments therein . . .” (Babcock v. Canada (Attorney General), 2005 BCSC 513, at para 10 to 12, and Brescia v. Canada (Treasury Board), 2005 FCA 236, at para 42 to 45).

[55]  In exercising any management functions conferred under the FAA, the employer may do that which is not specifically or by inference prohibited by statute or by the collective agreement (P.S.A.C. v. Canada (Canadian Grain Commission) (1986), 5 F.T.R. 51, at para 3 to 4 and 9 to 10; Peck v. Parks Canada, 2009 FC 686, at para 33; Li v. Canada (Citizenship and Immigration), 2011 FCA 110, at para 26; Professional Institute of the Public Service of Canada v. Treasury Board (Department of Human Resources and Skills Development), 2014 PSLRB 18, at para 48; and Public Service Alliance of Canada v. Treasury Board (Department of Veterans Affairs), 2013 PSLRB 165, at para 83).

[56]  An adjudicator’s role in interpreting the provisions of a collective agreement is to discover the intention of the parties with respect to the matter in dispute (R.M. Snyder, Collective Agreement Arbitration in Canada (4th edition), at para 2.1 and 2.2). In assessing any limitations under the collective agreement, an adjudicator must examine the ordinary meaning of the words used by the parties and refrain from modifying terms or conditions that are clear. The adjudicator must also take into account the entire collective agreement. The fact that a particular provision may seem unfair is not a reason to ignore it if the provision is otherwise clear (Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, at para 50 and 51, and Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55, at para 25 to 28).

[57]  The WFAP does not mandate a ROM process in every WFA situation. ROM is required only when certain conditions exist. The bargaining agent must clearly demonstrate that, on a balance of probabilities, the employer violated clause 3.6.6.3 of the WFAP. The evidence required to meet that burden of proof must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test (Canadian Association of Professional Employees v. Treasury Board (Department of Human Resources and Skills Development), 2013 PSLRB 100, at para 19 and 21). In this case, the bargaining agent had the burden of proving that the number of same‑classification‑level positions was reduced and that the positions were required to perform a single or related function. The obligation to perform a ROM process comes into play only when it has been established that number of positions performed a single or related function.

[58]  Research can be broken down by area. Interpreting functions narrowly, in the context of the collective agreement, is consistent with the employer’s approach. There is no provision of a statement of duties in the collective agreement. Positions are incumbent based. No ROM was triggered in this case. The function carried out by a given position is the research that the employee occupying the position is working on. The program that was eliminated that affected Dr. Pizzi included two other researchers, whose roles had implications in other areas of the programs. Dr. Pizzi’s function related directly to the program that was eliminated.

[59]  Clause 3.6.1.2 provides for a WFA in the event a program is eliminated. The ROM process is equivalent to the “SERLO” (selection for retention or layoff) process under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13), which is within the jurisdiction of the Public Service Staffing Tribunal. A SERLO process, like a ROM process, is not required in all cases. The onus is on an affected employee to show that other positions at the same classification group and level were performing the same or similar duties (Lishman v. The Deputy Minister of Environment Canada, 2013 PSST 0012, at para 45 to 48). How broad one is to interpret a function is a question of fact (Maclean v. Secretary of the Treasury Board of Canada Secretariat, 2012 PSST 0021, at para 12 to 14, 27 and 28 to 31). The argument in Maclean is similar to that advanced by Dr. Malisza: the employee was an EX-01 and therefore was capable of performing any EX-01 duties.

[60]  For clause 3.6.6.6 of the WFAP to be invoked, the conditions in clause 3.6.6.3 must be met. The burden of proof is on the affected employee to lead clear, cogent and convincing evidence that, sustained on the balance of probabilities, the conditions were met (Molander v. Commissioner of the Royal Canadian Mounted Police et al., 2007 PSST 0042, at para 44 to 46, and Canadian Association of Professional Employees, at para 20). There was no bargaining agent evidence to dispute the employer’s decision. The evidence showed that Dr. Pizzi was involved with infectious disease modelling and with Scopira (Exhibit 2, tabs 16 and 17). The only evidence produced to support Dr. Pizzi’s argument was his time sheets (Exhibit 3), which are not a dependable or valid way of determining exactly what he was working on. For example, “software development” does not identify what he was working on. Dr. Smith testified that Scopira was no longer being used. Therefore, there was no longer any need for to maintain it. Dr. Pizzi’s contention that he was not formally assigned to the infectious disease modelling project was contradicted by his performance reviews and work planner. He clearly communicated his involvement with both Scopira and infectious disease modelling to his employer (Exhibit 2, tab 6).

[61]  The issue of A-based or revenue-based funding for the positions is a red herring. A WFA affects indeterminate and term employees alike.

[62]  The gist of Dr. Malisza’s testimony is that she was assigned to the breast cancer research project six months before it was identified for elimination. She admitted that nothing was nefarious about her assignment to that project. Her experience was that she had been moved around from project to project quite a bit. The only evidence of bad faith or arbitrariness is her statement that she felt targeted. Bad faith cannot be presumed; it must be demonstrated.

[63]  There is no evidence (other than that of Dr. Smith) concerning the elimination of Dr. Serrai’s project. That evidence was not challenged, and that grievance should be dismissed summarily.

[64]  It is clear from Mr. Weir’s evidence that the employer took steps to market the grievors. Dr. Malisza was provided a guest pass so that she could continue to supervise her student. Dr. Pizzi was allowed to finish his work on the Fermion project.

[65]  Dr. Smith identified discrete areas of research to be eliminated. The ROs are not a heterogeneous group but a group of individuals with their own expertise. The fact that the ROs met to discuss their work on a regular basis over coffee did not equate to operating as a team. Dr. Smith’s choice of language when referring to applying a ROM process to the projects rather than the individuals was an unfortunate choice of word. The point is that when the projects were eliminated, the only people affected were the people conducting that research. If only one person can be identified as affected by the elimination of a program, then there is no need for a ROM process.

IV.  Reasons

[66]  Before determining whether the NRC violated the WFAP provisions in the collective agreement, I will address certain evidentiary issues, which need to be resolved to determine the ancillary questions raised by the grievors. Dr. Pizzi claimed that the NRC was mistaken in its belief that he was assigned to the infectious disease modelling and Scopira projects. He claimed that work on the Scopira project ended in 2006 and that he did not attribute time to it since then. A review of his time sheets for fiscal years 2006-2007 to and including 2010-2011 (Exhibit 3) clearly demonstrated that up to fiscal 2009-2010, Dr. Pizzi was involved in Scopira and that his analysis, submitted as Exhibit 4, is inaccurate. Furthermore, Dr. Pizzi testified that these entries were meant to reflect when Scopira was used in research, which I find questionable since the time entries are meant to account for his time for pay verification purposes. Dr. Pizzi also testified that he spent time maintaining Scopira after 2006, and yet no time record reflects this after 2008-2009. The time sheets are so vague as to be useless to assessing how much time was dedicated to supporting Scopira. Furthermore, Dr. Pizzi’s list of publications, submitted as Exhibit 8, clearly demonstrates that he was actively involved in the study of infectious disease modelling, given that the three most recent publications known to the NRC at the time the decision was made to layoff Dr. Pizzi were related to infectious disease modelling. He was an avid supporter of the program, aggressively sought funding for the project and regularly represented it to outside visitors who came to the NRC. Therefore, it was logical and reasonable for the NRC to consider him part of the infectious disease modelling project as he was the Scopira project.

[67]  The NRC representative asked that a flippant remark by Dr. Smith, about whether or not a ROM was required, not be used to determine whether the employer properly addressed the ROM issue. I agree with her. When programs are eliminated, the people affected are those who perform the functions of that program, absent any language to the contrary in the collective agreement. When only one person fills that function, as is the case with the grievors, a ROM process would be redundant. In such a case, only one person is affected by the elimination of that particular function; therefore, there is no need to conduct a ROM process. Consistent with clause 3.6.6.3 of the WFAP, when programs are eliminated, the people affected are those who perform the functions of that specific to that program, absent any language to the contrary in the collective agreement. Clause 3.6.6.3 of the WFAP states as follows:

3.6.6.3 In cases where there is a reduction in the number of same classification level positions required to perform a single function or related functions, the DG shall apply the Reverse Order of Merit (ROM) process only to determine the surplus employees and the order of potential lay-off [sic].

[Emphasis added]

 

[68]  I also agree with her that the nature of the funding of the positions is a red-herring. The WFAP, which forms the basis of the grievors’ arguments, makes no distinction between positions which are A-based or those which are revenue-based. Instead, the clear wording of the WFAP indicates that it applies only to employees. I was provided with no argument that the grievors were not employees for the purposes of the WFAP.

[69]  Much of Dr. Pizzi’s argument, focussed on the work that he claimed he was not doing. Dr. Pizzi maintained that the employer identified Scopira and disease modelling as the work he performed, which was no longer required. This argument for to his claim that his layoff was done in bad faith. However, this piece of evidence alone does not constitute proof of bad faith or prejudice towards him and the employer’s evidence has convinced me that the identification of the work in the affected letters delivered to all 3 grievors was not arbitrary.

[70]  To be successful in their grievances, the grievors had to convince me that those ROs who remained performed the same function or related functions, as stated in the Molander decision and the WFAP. Dr. Smith explained eloquently why each of the grievors was selected for layoff: Dr. Pizzi because of his involvement in Scopira and infectious disease modelling, Dr. Malisza because of the elimination of the breast cancer project to which she was assigned, and Dr. Serrai because of the unlikelihood of his research producing any usable results in the foreseeable future. I accept his evidence that each grievor was involved in isolated research of such a nature that it could easily be discontinued with little or no impact on the conduct of the research that was to continue.

[71]  On a related note, the grievors also argue that they were qualified to occupy other RO positions. While this may be the case, it again misses the requirements of the WFA and the central issue in this case. The issue is not whether the grievors could have successfully moved into other positions within the NRC but whether or not the WFA requires that a ROM process be undertaken in this case.

[72]  My role as an adjudicator is not to determine whether the employer’s business decisions were sound, merely to determine whether by making and implementing them, it violated the collective agreement. To find that a violation occurred, I must be convinced by clear, cogent and convincing evidence provided by the grievors that, on the balance of probabilities, other NRC employees of the same group and level conducted functions identical or related to those performed by the grievors (see Canadian Association of Professional Employees and Lishman). If so, then the question arises as to whether a ROM process was required.

[73]  In my opinion, the grievors did not discharge their onus of proof. Merely because other NRC employees classified RO or RCO remained in the same sections that the grievors were formerly part of after the layoffs were carried out, and merely because the grievors contended that they were equally capable of performing the functions of those who remained, does not establish that a ROM process was required. Furthermore, there was no evidence which would establish a violation of article 28 of the collective agreement.

[74]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V.  Order

[75]  The grievances are dismissed.

July 7, 2014.

Margaret T.A. Shannon,

adjudicator