FPSLREB Decisions

REASONS FOR DECISION

I. Summary

1        Kim Atkinson (“the grievor”) worked at the Correctional Service of Canada’s (“the employer”) Sumas Correctional Centre in Abbotsford, British Columbia, when he sought and was granted leave without pay (LWOP) to relocate to London, Ontario, with his family. While in London on the priority spousal relocation list for employment, his substantive position in Abbotsford was identified to be deleted as a part of the reorganization and eventual closure of the Sumas facility.

2        The employer wrote to the grievor and asked him to declare his interest in returning to B.C. for redeployment. He did not respond to this letter and later successfully obtained an indeterminate appointment with his employer at its institution in Kitchener, Ontario.

3        Did the employer breach the collective agreement by not offering the grievor a position in B.C. when his position was identified to be deleted in 2002?  If so, is the grievor owed any remedy given the particular circumstances of this case?

II. The facts

4        The parties helpfully tabled an agreed statement of facts, which allowed the hearing to focus on the issues in contention. In addition, the grievor testified and the employer also called one witness.

5        The grievor worked as a regional duty officer (classified AS 02) at the Sumas Correctional Centre. On June 2, 2002, he obtained written approval of his request for a 5-year period of LWOP, pursuant to article 45 of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group with an expiry date of June 20, 2007 (“the collective agreement”), for spousal relocation, to move with his family to London, where his spouse was pursuing a new opportunity.

6        The employer was obligated under the terms of the LWOP spousal relocation provisions to place him on a priority list for consideration for public service employment opportunities at or near his stated geographic preference of London.

7        The employer set out the terms of the LWOP in an August 6, 2002, letter to the grievor, indicating that his priority status would terminate if he accepted an offer of indeterminate employment. He received a second letter from the employer dated September 11, 2002, repeating that condition.

8        The grievor’s employment priority was registered with the Public Service Commission “PSC” at its Toronto, ON, office as confirmed in a July 10, 2002, email that notes the grievor’s stated preferences for consideration of new opportunities for an indeterminate AS-04 position in London.

9        The employer notified the grievor in writing dated October 10, 2002 that his substantive position in B.C. had been reclassified to an AS-04 level effective June 22, 2000 and he received retroactive pay from that date to the start of his LWOP.

10        On October 11, 2002, the employer notified the grievor in writing that his former workplace was being reorganized and that his substantive position would be deleted. The letter asked him to contact the PSC office in Toronto to determine how it would affect his priority status. The letter also stated as follows:

... In the even [sic] that you wish to return to your substantive position before you are appointed indeterminately through your priority status, please contact me as soon as you can. You will then be in affected status and we will find another position for you within the guidelines of the Workforce Adjustment Policy.

[Emphasis added]

11        The grievor’s testimony confirmed that he did not reply to the letter and that he at no time made contact in any way with his employer to indicate his interest in returning to B.C. to work. In the absence of a reply, the employer did not declare his encumbered position surplus and did not offer him a job in B.C. On April 5, 2004, the grievor accepted an offer of indeterminate employment as a chief, administrative services (classified AS-02), at the employer’s facility in Kitchener. This position was reclassified to an AS-04 on September 9, 2008, a result of a national grievance and he received retroactive pay effective his start date in Kitchener.

III. The grievance

12        In 2007, the grievor filed this grievance, alleging that his employer breached the collective agreement by not placing him on the surplus priority list in the B.C. region, which he alleges was required once his substantive position that he left in Abbotsford was identified to be deleted. The grievor submits he should have had dual priority status both in B.C. and in London.

13        The grievor testified that when he inquired in 2007 about the possibility of seeking a position with his employer in B.C., he thought he would still have been on a B.C. surplus priority list due to his substantive position at the Sumas Correctional Centre being deleted.

14        The grievor had the burden of proof in this matter and sought to be made whole, which he stated required being reimbursed his wages from the date of being notified of his substantive position in Abbotsford being identified for deletion to his start date in Kitchener, which is a period of approximately 18 months.

IV. Issues

A. Breach of the collective agreement

15        The grievor submitted that his employer breached the collective agreement by sending him the letter of October 11, 2002, indicating that his substantive position at the Sumas Correctional Centre had been identified for deletion but not referring that letter to the PSC in B.C. He argued that letter effectively declared him a “surplus employee” as defined in the collective agreement, triggering clause 1.1.6 of Appendix “E” of the collective agreement, which deals with “Work Force Adjustment” (“WFA”).

16        The collective agreement defines “surplus employee” as an indeterminate employee who has been formally declared surplus in writing by his or her deputy head. Clause 1.1.6 states that when the services of an employee are no longer required beyond a specified date due to lack of work or the discontinuance of function, the employee shall be notified in writing and that a copy of this letter “... shall be sent forthwith to the PSC.”

17        The employer replied that the letter in question did not declare the grievor surplus and did not specify a date for it as required by clause 1.1.6. Rather, the employer led evidence from Wendy Neil, a senior corporate staffing consultant, who stated that employees whose positions are identified for deletion are first written a letter to indicate they are “affected employees”. The collective agreement defines that term (in the singular) as an indeterminate employee who has been informed in writing that his or her services may no longer be required because of a workforce adjustment.

18        Ms. Neil further stated that in the grievor’s case, he did not reach the second step of being confirmed as “surplus” due to the fact established in the evidence by the grievor’s testimony that he did nothing to respond to the employer’s October 11, 2002, letter. Furthermore, he stated in testimony that in fact he did not want to return to B.C. in the period in question, from 2002 to 2004.

19        The grievor argued that had the employer placed him on a surplus priority list distinct from and in addition to the spousal relocation priority list, he would have found employment sooner. As evidence to support that assertion, he suggested that his co-workers in Abbotsford all succeeded in finding other employment shortly after being identified as having their positions deleted.

20        Ms. Neil stated in cross-examination that had the grievor wanted to return to work in B.C. and had he made that known to the employer, it would have had to find him a suitable position in B.C. as was the case with his former co-workers.

21        In support of his argument, the grievor relies upon Roessel v. Treasury Board (Canadian Heritage),PSSRB File No. 166-02-27341 (19970312), [1997] C.P.S.S.R.B. No. 24 (QL). In that case, the former Public Service Staff Relations Board considered a workforce adjustment situation in which employees were told their positions would be deleted and that they might wish to immediately begin looking elsewhere for employment outside the public service.

22        In several meetings and briefings, Ms. Roessel was told that her position was being deleted and that after repeatedly being told that she and her colleagues might wish to find other employment, she did so. She also researched the cash-out provisions of her collective agreement for employees that were facing layoff and had the option of leaving the public service. Upon discussing the cash-out option with her supervisor and upon being assured of his concurrence with that option, Ms. Roessel chose to leave her employment and to request the cash out allowance in her collective agreement.

23        Even though the NJC allowed her grievance and held that she should have been declared surplus, her employer later denied her cash-out, and long after she had starting working in the private sector, the former department offered her other employment, to justify denying her the cash-out.

24        I do not find that case helpful with the facts before me, as unlike in Roessel, the grievor in this case chose to leave his position to move with his family to another province before any discussion had taken place about his B.C. workplace being closed and his position being deleted.

25        At my request after the hearing, the parties submitted written submissions on the interpretation of clause 1.1.34 of the WFA appendix of the collective agreement. That clause states that departments are to presume that employees wish to be redeployed unless they indicate the contrary in writing.

26        Counsel for the grievor replied to my request, noting that as stated in the agreed statement of facts, he “... did not respond to this letter” and that “... this is further evidence that he should have been redeployed.” Counsel also stated in the written submission that “... had [the grievor] been offered a position during the time period he was unemployed he would have taken it even if it was in B.C.” However, the grievor’s testimony at the hearing clearly stated otherwise.

27        The employer replied by stating that it “... did indeed presume that the employee wished to be redeployed but asked first where and how, given his LWOP and job search in Ontario.” The employer further stated that had the grievor been made a reasonable job offer in B.C. and refused it, it would have triggered his layoff as per clause 1.1.33 of the WFA appendix.

B. Mootness of the remedy

28        The employer argued that even if I find that the collective agreement was breached, the grievor is not owed any damages.

29        In his testimony, the grievor stated that he did not wish to return to B.C. in the 2002 to 2004 period.

30        In argument, the grievor noted the hypothetical nature of his claim for damages in that he was seeking a remedy for a lost opportunity that was not subject to be quantified. He tabled no evidence as to any positions he was denied the opportunity to apply for. My findings on the discounting of the damages for loss of opportunity is consistent with the case the employer referred me to, which was Grand Yellowhead Regional Division No. 35 v. Canadian Union of Public Employees, Local 1357,[2010] A.G.A.A. No. 47 (QL), at paras. 17 to 21.

31        Given the facts, I accept the employer’s arguments and find that even if I were to allow the grievance I would discount by 100% any damages owed the grievor due to his evidence, which was unequivocal that he would not have accepted an offer to return to B.C. in the 2002 to 2004 period even had one been made.

V. Reasons

32        The evidence clearly establishes that the grievor would have been declared surplus and thereby triggered the employer’s obligation to find him another position in B.C. had the grievor wanted this.  The evidence also establishes that had another suitable position for him in B.C. not then been available he would have been put on the B.C. priority list for redeployment.

33        Given the grievor did not wish to return to B.C. in 2002 the employer did not offer him another position nor place him on the B.C. priority redeployment list.  Had an offer of a position in B.C. been made to the grievor in 2002 the evidence indicates he would have declined the position and by operation of his collective agreement thereby lost his place on the priority list for redeployment in London.

34        I find that since the uncontested evidence revealed that the grievor was never declared surplus as a result of his own actions, the grievor did not have the right to be placed on the B.C. priority list for redeployment in B.C. as those rights are contingent on a declaration of surplus. And if he did have such a right by operation of the collective agreement, I find that the grievor waived his right by his actions.

35        Given these findings, I cannot uphold the grievance.

36        If I am wrong in finding the employer did not breach the agreement, then I find the grievor’s remedy is a simple declaration of the breach having occurred and he is due no compensation, as the grievor stated he did not wish to return to B.C. in the 2002-2004 period.

37        And finally, when the grievor discovered a renewed interest in returning to work in B.C. in June 2007, any right he had to his former substantive position in B.C. or to be on a priority list for employment there had long since expired once he accepted the indeterminate position in Kitchener.

VI. Order

38        For the reasons I have noted, I dismiss the grievance.

June 22, 2016.