FPSLREB Decisions

Heard at Rimouski, Quebec,
September 17 and 18, 2015, and February 16, 2016.
(FPSLREB Translation)

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        Line Choinière (“the grievor”) held a position as the team leader, fish habitat conservation and fish habitat management, in the Regional Ecosystems Management Branch of the Department of Fisheries and Oceans (“the employer”) in Mont-Joli, Quebec. That position was classified at the BI-04 group and level (“the BI-04 (fish habitat conservation) position”).

2        On June 27, 2012, the employer informed the grievor that it had identified her as an affected employee under Appendix “G”, the workforce adjustment agreement (WFAA), which is part of the collective agreement signed on July 9, 2009, between the Treasury Board and the grievor’s bargaining agent, the Professional Institute of the Public Service of Canada, for the Applied Science and Patent Examination Group bargaining unit (“the collective agreement”), which expired on September 30, 2011. The WFAA defines the term “affected employee” as follows:

Affected employee (employé touché) - is an indeterminate employee who has been informed in writing that his or her services may no longer be required because of a workforce adjustment situation.

3        On June 27, 2012, the employer also informed Guy Michaud that it had identified him as an affected employee under the WFAA.

4        On February 14, 2013, the employer offered Mr. Michaud a transfer to a position as a team leader in the Fisheries Protection Unit, Triage and Planning, in Mont-Joli. That position is classified at the BI-04 group and level (“the BI-04 (triage and planning) position”).

5        On February 28, 2013, Mr. Michaud refused the offer to transfer to the BI-04 (triage and planning) position.

6        On March 25, 2013, the employer informed the grievor that it was declaring her a surplus employee under the WFAA, which defines the term “surplus employee” as follows:

Surplus employee (employé excédentaire) - is an indeterminate employee who has been formally declared surplus, in writing, by his or her deputy head.

7        On April 2, 2013, the employer informed Mr. Michaud that it was declaring him a surplus employee under the WFAA.

8        On May 3, 2013, the employer offered Mr. Michaud the BI-04 (triage and planning) position.

9        On May 6, 2013, Mr. Michaud accepted the job offer for the BI-04 (triage and planning) position, effective May 27, 2013.

10        On May 31, 2013, the employer offered the grievor a position as a coordinator, client liaison and partnerships, in Mont-Joli. That position is classified at the PM-05 group and level (“the PM-05 (client liaison and partnerships) position”).

11        On June 6, 2013, the grievor accepted the job offer for the PM-05 (client liaison and partnerships) position, effective June 10, 2013.

12        On June 21, 2013, the grievor filed a grievance, alleging that the employer had violated clause 1.1.16 of the WFAA. The grievance reads as follows:

[Translation]

I challenge the employer’s decision to appoint me as surplus to a lower position, from BI-04 to PM-05, before exhausting all other possibilities, in violation of clause 1.1.16 of the Workforce Adjustment Directive. The employer did not appropriately assess my competencies to avoid appointing me to a lower level. I held the BI-04 position for 11 years and always received positive performance evaluations.

13        Clause 1.1.16 of the WFAA reads as follows:

1.1.16 Appointment of surplus employees to alternative positions, whether with or without retraining, shall normally be at a level equivalent to that previously held by the employee, but this does not preclude appointment to a lower level. Departments or organizations shall avoid appointment to a lower level except where all other avenues have been exhausted.

14        As a remedy, the grievor requested that the employer assess her competencies for a position at the BI-04 group and level.

15        The grievance was referred to adjudication on November 15, 2013, under s. 209(1)(a) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) as a grievance about the interpretation or application of a collective agreement provision.

16        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the Public Service Labour Relations Board and the Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the PSLRA before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

17        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the title of the Public Service Labour Relations and Employment Board Act to, respectively, the Federal Public Sector Labour Relations and Employment Board and the Federal Public Sector Labour Relations and Employment Board Act.

II. Preliminary objections

18        The employer raised an objection about the Board’s jurisdiction to hear and decide the grievor’s grievance. It argued that the substance of the grievance was a staffing matter, not an interpretation or application of the collective agreement.

19        The employer’s second objection was about the fact that part of the grievance, which alleged that it had not appropriately assessed the grievor’s competencies, was out of time.

20        I advised the parties that I would take the objections under reserve, that I would hear the evidence on the merits of the grievance, and that their arguments on the objections could be presented during their submissions. They did so. Therefore, I will decide the preliminary objections before dealing with the grievance’s merits, as applicable.

A. Objection to the Board’s jurisdiction to hear the grievance

1. Summary of the arguments

a. For the employer

21        The employer pointed out that the grievor referred her grievance to adjudication under s. 209(1)(a) of the PSLRA; that is, as a grievance about the interpretation or application of a collective agreement provision.

22        The employer argued that because s. 209 of the PSLRA is its only provision that attributes jurisdiction (see Chamberlain v. Canada (Attorney General), 2015 FC 50 at para. 41), the Board’s jurisdiction in this case is limited to an issue related to applying or interpreting the collective agreement.

23        The employer did not challenge the Board’s jurisdiction over the WFAA but pointed out that for the Board to be able to exercise its jurisdiction, the true nature of the grievance must be about applying or interpreting the collective agreement. In support of that argument, it cited the following decisions: Swan and McDowell v. Canada Revenue Agency, 2009 PSLRB 73 at paras. 58 and 59; Pelletier et al. v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 117 at para. 44; and Charrette et al. v. Parks Canada Agency, 2015 PSLREB 43 at para. 59.

24        The employer argued that in her grievance, the grievor challenged the assessment of her competencies, which is a staffing issue. According to it, although the WFAA is part of the collective agreement, it does not extend the Board’s jurisdiction to staffing as part of a grievance. That would go against the principle of the two separate schemes in the federal public service, labour relations and staffing (see Pelletier et al., at para. 41 and following paragraphs). According to the employer, much of the grievor’s grievance deals with an assessment of her competencies and a staffing process, which are not part of the labour relations regime.

25        The employer argued that the grievor sought to base her grievance in the WFAA but that the WFAA’s text does not address the issues raised in the grievance.

26        The employer emphasized that in addition to the grievance’s wording, some evidence leads to the conclusion that it is a staffing issue. In that respect, the employer referred to the following exhibits: the message to employees about the Habitat Management Program’s new organizational structure (Exhibit S-2), the Habitat Management Program’s staffing strategy (Exhibits S-2-A and E-5), the national staffing process (Exhibit S-5), the selection processes in which the grievor took part (Exhibits S-10 and S-11), and her assessment for the PM-05 (client liaison and partnerships) position (Exhibit S-19).

27        I will pause to describe on one hand Exhibits S-2-A and E-5 and on the other hand Exhibit S-5. Exhibit S-2-A is entitled “[translation] Staffing strategy of the Habitat Management Program” and describes the staffing process in 4 pages, followed by 4 pages containing 15 “[translation] Common Questions”. Exhibit S-5 is an email dated October 24, 2012, and addressed to several people, including Mr. Walsh, which contained a communiqué for employees about the Fisheries Protection Program that both the Senior Assistant Deputy Minister, Ecosystem Fisheries Management, and the Assistant Deputy Minister, Transformation, had signed. That message was followed by an organization chart of the new structure and the same staffing strategy found in Exhibit S-2-A. Exhibit S-5 consists of an email from the Director General, Ecosystem Management Branch, dated November 22, 2012, and addressed to Mr. Walsh, among others. It included a communiqué on the next steps in the national staffing process and informed employees of the procedure to follow to apply for positions in which they might have been interested.

28        The employer submitted that the issues raised in the grievor’s grievance and the remedies sought should be dealt with through a staffing complaint under the Public Service Employment Act (S.C. 2003, c. 22, s. 12, 13; PSEA), which sets out a complete recourse procedure for staffing measures in the federal public service. According to the employer, the grievor’s grievance is not adjudicable.

29        The employer argued that if the Board finds that the grievance is related to a WFAA provision, then its jurisdiction is limited to interpreting and applying the WFAA (see Hureau v. Treasury Board (Department of the Environment), 2008 PSLRB 47 at para. 27).

b. For the grievor

30        The grievor indicated that according to the parties’ intent, the WFAA is part of the collective agreement (see Chênevert v. Treasury Board (Department of Agriculture and Agri-Food), 2015 PSLREB 52 at para. 144; Public Service Alliance of Canada and Professional Institute of the Public Service of Canada v. Treasury Board of Canada, 2013 PSLRB 37 at para. 19; and Public Service Alliance of Canada v. Treasury Board (Correctional Service of Canada), 2015 PSLREB 10 at para. 67). She added that the grievance wording alleges that the WFAA was contravened. Therefore, the Board has jurisdiction to hear her grievance under s. 209(1)(a) of the PSLRA.

31        The grievor argued that her grievance raised the following question: Did the employer violate clause 1.1.16 of the WFAA? She submitted that the issue of her competencies assessment was incidental to her grievance. She indicated that Part IV of the WFAA deals with qualifications that must be considered to determine if clause 1.1.16 has been violated.

32        The grievor noted that the Board has jurisdiction to determine whether the employer’s discretion with respect to assessing her competencies was exercised reasonably or fairly. In support of that argument, she cited Brown and Beatty, Canadian Labour Arbitration, 4th edition, at paragraph 4:2326 (“Brown and Beatty”).

33        The grievor submitted that since the WFAA sets out how positions are filled, it cannot be said that in this case, assessing competencies was simply a staffing issue. She added that that assessment cannot be ignored when applying the WFAA, as that exercise must be carried out to achieve the WFAA’s objectives. Otherwise, the WFAA would be meaningless. In that respect, the grievor referred to the following WFAA clauses:

...

Part I

Roles and responsibilities

1.1 Departments or Organizations

1.1.1 Since indeterminate employees who are affected by workforce adjustment situations are not themselves responsible for such situations, it is the
responsibility of departments or organizations to ensure that they are treated equitably and, given every reasonable opportunity to continue their careers as public service employees.

1.1.2 Departments or organizations shall carry out effective human resource planning to minimise the impact of workforce adjustment situations on indeterminate employees, on the department or organization, and on the public service.

...

[Emphasis in the original]

34        According to the grievor, when the employer establishes a workforce adjustment process, it must follow it. She filed her grievance because she alleged that the employer did not follow its process.

2. Reasons

35        At the time relevant to this case, s. 209(1)(a) of the PSLRA read as follows:

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

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

36        The WFAA’s “General” section states the following under the heading, “Collective agreement”: “With the exception of those provisions for which the Public Service Commission (PSC) is responsible, this Appendix is part of this Collective agreement.”

37        Since the WFAA is part of the collective agreement, the Board has full jurisdiction over its interpretation or application under s. 209(1)(a) of the PSLRA.

38        The employer argued that the substance of the grievor’s grievance is about a staffing process. I cannot agree with that argument.

39        Although the employer used a staffing process when restructuring the Habitat Management Program under its new name, the “Fisheries Protection Program”, its obligations to the grievor clearly arose from the WFAA. Some evidence that the employer submitted referred to the WFAA. For example, in its letter to the grievor of June 27, 2012 (Exhibit S-3), she was identified as an “affected employee” under the workforce adjustment.

40        The June 27, 2012, letter, which had attached a copy of the WFAA, also included the following sentence: “[Translation] I encourage you to consult your attached Workforce Adjustment Agreement.”

41        A second example is the employer’s letter to the grievor on March 25, 2013 (Exhibit S-16), which contains the following sentence: “[Translation] You have been declared a surplus employee under the Workforce Adjustment Agreement.” The WFAA is also referred to in the “[translation] Common Questions” section of the Habitat Management Program staffing plan (Exhibit S-2-A).

42        Furthermore, a decision to carry out a workforce adjustment is the employer’s responsibility. The definition of “workforce adjustment” in the WFAA reads as follows:

Workforce adjustment (réaménagement des effectifs) - is a situation that occurs when a deputy head decides that the services of one (1) 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.

[Emphasis added]

43        Additionally, Part I of the WFAA sets out the roles and responsibilities of departments or organizations during a workforce adjustment. Clause 1.1.1 states that in workforce adjustment situations, the employer is responsible for treating affected employees equitably. It follows that because the WFAA gives the employer discretion, the Board has jurisdiction to determine if that discretion was exercised fairly and reasonably (see Chênevert, at para. 149, and Brown and Beatty, at paragraph 4:2326).

44        The employer used a “national staffing process” to apply the WFAA’s provisions. The grievor emphasized that it launched a national staffing process (Exhibit S-5) to meet the WFAA’s objectives. In this case, I find that the method the employer used to meet the WFAA’s objectives cannot be isolated from the WFAA itself, which is part of the collective agreement.

45        I conclude that under s. 209(1)(a) of the PSLRA, the Board has full jurisdiction to determine whether the employer contravened clause 1.1.16 of the WFAA with respect to the grievor. Its objection to the Board’s jurisdiction to hear the grievance is dismissed.

B. Objection to the deadline for filing part of the grievance

1. Summary of the arguments

a. For the employer

46        On December 19, 2013, the employer raised an objection that the part of the grievor’s grievance, on her competencies assessment, was filed out of time.

47        The employer referred to clause 35.12 of the collective agreement, which reads in part as follows:

35.12 A grievor may present a grievance to the first step of the procedure in the manner prescribed in clause 35.06, not later than the twenty-fifth (25th) day after the date on which the grievor is notified or on which the grievor first becomes aware of the action or circumstances giving rise to the grievance....

48        Clause 35.17 of the collective agreement sets out how to calculate the deadlines, as follows:

35.17 In determining the time within which any action is to be taken as prescribed in this procedure, Saturdays, Sundays and designated paid holidays shall be excluded.

49        The employer argued that the grievance was presented at the first level on June 21, 2013. However, the part of it on the assessment of the grievor’s competencies allegedly refers to events that occurred in February 2013, which would therefore be out of time.

b. For the grievor

50        The grievor responded to the employer’s objection on January 8, 2014. She stated that the nature of the grievance is about clause 1.1.16 of the WFAA not being complied with and that the issue of the assessment of her competencies is incidental only to the workforce adjustment process of which she was a part.

2. Reasons

51        As noted by the employer, it is true that some events in the grievor’s situation occurred in February 2013. However, to see the full picture, the chronology of events must be considered based on the evidence.

52        Jean-Yves Savaria was the regional manager of Fish Habitat Management for the Quebec Region; his position was classified BI-05. He was the grievor’s supervisor. In an email to him on February 19, 2013 (Exhibit S-12), she summarized her understanding of their February 14, 2013, meeting and asked him to inform her whether she understood it correctly.

53        Among other things, the grievor’s email indicates that Mr. Savaria had informed her that the positions of team leader, fisheries protection, client and partner liaison, standards and guidelines, classified at the BI-04 group and level and in Mont-Joli (“the BI-04 (standards and guidelines) position” and “the BI-04 (triage and planning) position”) had been offered to other employees and that the employer intended to offer her the PM-05 (client liaison and partnerships) position. She stated that she asked him about the process behind the offer of that position and that he apparently replied that the human resources process was complex and that it was not clear to him how the employer would proceed. Mr. Savaria suggested that if necessary, she consult Dan Dupuis, a human resources advisor.

54        Mr. Savaria replied to the grievor by an email on February 27, 2013 (Exhibit E-12), which reads in part as follows:

[Translation]

...

... First, I would like to be clear that the main objective of the meeting was to informally advise you that your colleagues would be given an offer letter for the two BI-04 positions set out in the new organization chart.

...

Although some elements of the minutes that you propose could be clarified, I do not believe that it is relevant for me to comment in more depth at this time. I understand that most of those elements were discussed during more formal meetings with management, which your union representatives attended.

...

[Emphasis added]

55        Those documents show that the grievor’s situation had not yet been formalized as of February 14, 2013.

56        In a letter dated March 25, 2013 (Exhibit S-16), the grievor was informed that the employer had declared her a surplus employee.

57        In a letter dated May 31, 2013, the employer officially presented the grievor with a job offer for the PM-05 (client liaison and partnerships) position (Exhibit S-17), with the title “Coordinator, Client Liaison and Partnerships”. I consider that the date on which she could have felt aggrieved by the interpretation or application of clause 1.1.16 of the WFAA. To use the wording of clause 35.12 of the collective agreement, only on that date did she become “notified” or “aware of the action or circumstances giving rise to the grievance.” She accepted the job offer on June 6, 2013 (Exhibit S-17). She filed her grievance on June 21, 2013, within the time required under clause 35.12 of the collective agreement.

58        As a result, I dismiss the employer’s objection on the deadline for filing the grievance, with respect to the assessment of the grievor’s competencies.

III. Summary of the evidence

59        The grievor testified on her own behalf. She also called Mr. Michaud to testify, the incumbent in the BI-04 (triage and planning) position. The employer called one witness, Gordon Walsh, the director general of the Ecosystems Management Branch at the time of the events that gave rise to the grievance.

60        The grievor, who has a master’s degree in biology, began working for the employer in 1997 in Mont-Joli in a position classified at the BI-02 group and level. In 2001, she was appointed to the BI-04 (fish habitat conservation) position, which she held until 2013.

61        In her testimony, she stated that during that period, she was responsible for 5 of the employer’s programs and that her team had between 11 and 17 employees. She had to develop a new business line to apply the strategies for implementing the fish habitat management policy. In her résumé (Exhibit S-9), she listed the programs for which she was responsible, along with her achievements.

62        The grievor’s grievance resulted from the 2012 Economic Action Plan announced by the federal government when it tabled its 2012 budget. Under that plan, the entire public service had to find a way to reduce the workforce, to cut government costs.

63        In a message to all its employees in June 2012 (Exhibit E-4), the employer announced that to achieve savings, it would transform “[translation] ... how it assures the protection of fish and how it delivers the Habitat Management Program in the country.”

64        As mentioned, to achieve its goals, the employer had to apply the WFAA, the objectives of which read as follows:

General

...

Objectives

It is the policy of the Treasury Board to maximise employment opportunities for indeterminate employees affected by workforce 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 workforce 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 Core Public Administration. Those employees for whom the deputy head cannot provide the guarantee will have access to transitional employment arrangements (as per Part VI and VII).

...

65        On October 24, 2012, the employer informed senior management that it had finalized its strategy for applying, as of January 2, 2013, a new national organizational structure called the “Fisheries Protection Program” (Exhibit E-5). In that email, it explained that a national staffing process would be launched, in three stages. In the first stage, affected employees in the Habitat Management Program had to express their interest in the positions for which they were qualified. In the second stage, employees with priority status would be considered, first within the employer and then within the public service. If positions remained vacant after those two stages, an official advertised process would be launched in the third stage. The same announcement indicated that appropriate alternation opportunities would also be considered.

66        Mr. Walsh shared the contents of the October 24, 2012, email with employees in a meeting held that day. The grievor attended and took notes (Exhibit S-4). According to her testimony under cross-examination, Mr. Walsh stated that employees who wanted a position had to apply. According to her notes and testimony, he stated that employees who did not express interest in a position would receive opting employee letters (based on alternation) in about December 2012. I note that “opting employee” is one of the terms defined in the WFAA, as follows:

Opting employee (employé optant) - is an indeterminate employee whose services will no longer be required because of a workforce adjustment situation and who has not received a guarantee of a reasonable job offer from the deputy head and who has one hundred and twenty (120) days to consider the options of part 6.3 of this Appendix.

67        Mr. Michaud corroborated the grievor’s testimony on this matter. He attended the same meeting on October 24, 2012. In a letter to Mr. Walsh dated February 28, 2013 (Exhibit S-24), Mr. Michaud wrote the following:

[Translation]

...

... So, on October 24, 2012, at a meeting that you called to explain the new FPP structure, you mentioned that: “An employee who does not express interest [in a position] will receive an opting letter”....

...

68        Mr. Michaud was not cross-examined.

69        In cross-examination, Mr. Walsh denied saying that employees who did not follow the application process would be disqualified. He stated that he might have mentioned what was written in the grievor’s notes but that he had spoken in the conditional tense. He also denied saying that employees who did not apply would automatically receive an opting letter.

70        Mr. Walsh indicated that the employer offered employees training for interviews and for preparing their files. He also stated that employees who wanted to leave voluntarily had to reflect on that and that financial advisor services were made available to them.

71        In the national staffing process (Exhibit S-5), the employer informed employees of the procedure to follow to apply for positions in the new organization in which they might be interested. To take part in the process, employees had to indicate the positions for which they wished to be considered, whether they were at the same level as, a higher level than, or a lower level than their substantive positions.

72        The forms that the employees had to complete to express their interest in positions to be filled (Exhibits S-5-A and S-5-B) mentioned the following:

[Translation]

...

If you do not indicate your choice by Friday, December 14, 2012,we will assume that you have chosen not to take part in the exercise. In such cases, the department shall determine the next steps based on the workforce adjustment policy.

[Emphasis in the original]

73        Before the restructuring, there were three BI-04 positions in Mont-Joli, including the one held by the grievor. In the new organization, one was eliminated, and the other two BI-04 positions were changed to the BI-04 (standards and guidelines) and BI-04 (triage and planning) positions.

74        The grievor applied for each of those on December 14, 2012 (Exhibits S-10 and S-11). The fact that she applied for them in accordance with the applicable rules is not in dispute.

75        The BI-04 (standards and guidelines) position was offered to Alain Guitard. The BI-04 (triage and planning) position was offered to Mr. Michaud.

76        Mr. Michaud did not apply for any position. He received a letter on June 27, 2012, advising him that he was an affected employee (Exhibit S-20). In an email to Mr. Walsh on December 20, 2012, Mr. Michaud advised him that he had not applied and that as he intended to leave the public service, he wanted opting employee status (Exhibit S-21).

77        In a letter dated February 14, 2013, the employer offered Mr. Michaud a transfer to the BI-04 (triage and planning) position (Exhibit S-22). The letter indicated that by accepting the transfer, Mr. Michaud’s affected employee status would be “[translation] cancelled”.

78        In an email to Mr. Walsh on February 18, 2013 (Exhibit S-23), Mr. Michaud reiterated the fact that he had not applied for any position in the new organizational structure of the Fisheries Protection Program and that he had volunteered, as one among the incumbents in the BI-04 positions affected by the cuts, to obtain opting status, given his intention to leave the public service.

79        In his letter to Mr. Walsh dated February 28, 2013 (Exhibit S-24), Mr. Michaud explained his refusal of the transfer offer. He mentioned that he had advised management several times that he volunteered to be an opting employee. Referring to the rules that had been established for staffing the positions, Mr. Michaud wrote the following:

[Translation]

...

... contrary to established procedures and despite the fact that I did not express interest in any position, my candidacy was included in the staffing exercise, I was assessed solely by references, and I was offered a position for which I did not express any interest. All this was done without advising me or consulting me and while dismissing another BI-04 candidate who had participated in the process in accordance with the established rules.

...

80        In a letter dated May 3, 2013, and signed by Mr. Walsh (Exhibit S-25), the employer submitted a job offer to Mr. Michaud for the BI-04 (triage and planning) position. It advised him that if he refused the offer and no other job could be found for him, he would be laid off. He testified that he accepted the offer on May 6, 2013, as he did not want to risk being laid off and possibly having to move.

81        Mr. Michaud held that position from May 27, 2013, to January 15, 2015, when he retired. He stated that during that time, he was absent for 58 of the 101 weeks and that a BI-02 biologist from Québec replaced him on an acting basis. The position remained vacant from Mr. Michaud’s retirement until an appointment was made in September 2015.

82        Mr. Michaud testified that the new position had fewer responsibilities than the positions he had already held with the employer. He had to supervise two employees and had no budget. According to him, it was more an advisor role than a manager role.

83        He asked management about the linguistic requirement for the new position, which was unilingual French. According to him, BI-04 positions had always been bilingual, as it might have been necessary to work with fisheries officers in English and as consultations with officers in offices in Ottawa on developing new policies and procedures were conducted in English. He stated that on his nomination to the new position, his second-language evaluation results were no longer valid. Management told him that the employee in the BI-05 position would cover the position’s bilingual aspect.

84        Mr. Michaud testified that in his 26 years as a federal employee, he had worked for the employer for 24 years, including about 15 years in Fish Habitat Management. During that time, he held a BI-03 position on the grievor’s team and acted in the BI-04 (fish habitat conservation) position for 2.5 years while she was on leave. He stated that after having held all management positions, he felt that the BI-04 (fish habitat conservation) position, held by the grievor, was infinitely more demanding and more complex than the BI-04 (triage and planning) position.

85        In his testimony, Mr. Walsh stated that the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5) was followed in accordance with staffing standards while also applying the “right-fit” selection criterion. According to him, when an employee applied for an equivalent position, he or she was evaluated solely on that criterion. If the application was submitted for a higher position, the employee was evaluated on all merit criteria.

86        Mr. Walsh stated that it was decided at the national level to not request performance evaluations, as they are not conducted consistently across the country, and not all employees have annual evaluations.

87        The evaluation committee that evaluated the grievor consisted of Mr. Walsh, Mr. Savaria, and Mr. Dupuis. Mr. Walsh stated that because Mr. Dupuis was not familiar with the grievor’s competencies, he and Mr. Savaria evaluated her and that he made the final decision. Mr. Walsh stated that Mr. Savaria was part of the committee because he knew the affected employees and because the committee members could use their knowledge of the employees in the evaluation. In that respect, the national staffing process (Exhibit S-5) contained the following sentence in the “[translation] Other instructions” section: “[translation] Managers may refer to their personal knowledge of the candidates during the evaluation process to validate the information provided.” Mr. Walsh stated that in the evaluation process for staffing the positions, the committee began with the higher-level positions and then moved on to the lower-level positions.

88        Mr. Walsh referred to a position equivalency guide for the Fisheries Protection Program (Exhibit E-6) and stated that the equivalencies had been calculated based on the salaries in effect at that time, with a range of 4%. I note that the guide indicates that a position at the BI-04 group and level is equivalent only to another BI-04 group and level position.

89        As for those who volunteered to be opting employees, Mr. Walsh referred to an email sent to senior management on January 4, 2013, by Francine Séguin, who was the national workforce adjustment coordinator with the employer’s Human Resources Branch (Exhibit E-7). According to that email and Mr. Walsh’s testimony, opting employee status was granted first to employees at the employer’s offices that were to close, as the goal was to staff positions in the new structure and to retain employees’ jobs. Mr. Walsh stated that the organization chart and the positions had to be filled. In the Quebec Region, the offices in question were those in Montreal, Gaspé and Sept-Îles. As for employees who had not applied for a position at an office that was to remain open, the email stated the following:

[Translation]

...

Employees who have not expressed interest in a location that must remain open must wait to see if vacant positions remain once the evaluation is completed. If there are vacant positions within the FPP [Fisheries Protection Program] or in any other DFO/CCG [Department of Fisheries and Oceans/Canadian Coast Guard] sector, they may be offered a GRJO [guarantee of a reasonable job offer]. It is not an automatic choice.

...

90        Mr. Walsh stated that 50 employees in his organization were affected employees and that 40 positions were filled in the new organizational structure.

91        As for the grievor’s evaluation for the BI-04 (standards and guidelines) and BI-04 (triage and planning) positions (Exhibit S-18), Mr. Walsh stated that the evaluation committee examined her two expressions of interest and concluded that she did not meet certain merit criteria. According to him, if one competency was not met, the committee considered that the employee did not have the competencies for the position. Across Canada, the passing mark for each selection criterion was set at three points out of a scale of five.

92        Mr. Walsh mentioned that the evaluation committee had stopped the grievor’s evaluation after two or three of the criteria. He acknowledged the fact that had he continued the evaluation, the result might have been different. Since an affected employee had to satisfy all the criteria, as soon as the passing mark was not achieved on one criterion, the evaluation stopped.

93        In the grievor’s case, the evaluation committee found that she had not met two merit criteria, namely, criterion AB10 (ability to make decisions when managing teams and other specialists) and criterion AB12 (ability to provide leadership and operational supervision (ability to make decisions when managing teams and other specialists)). The committee’s observations for those two criteria were the same.

94        In her testimony-in-chief, the grievor stated that her superiors never told her that leadership was a problem in her 11 years as team leader, fish habitat conservation. The employer did not submit any evidence to contradict that testimony. She acknowledged that she had received some comments about deadlines but that they had no operational impact.

95        According to the grievor, the evaluation committee’s evaluation of her was anecdotal, not based on all her achievements.

96        Under cross-examination, the grievor acknowledged telling her superiors that she had difficulties managing, as she had a heavy workload that was increasing.

97        When confronted about an email that she sent to Mr. Savaria on March 1, 2012, in which she expressed her interest in changing to a BI-03 position (Exhibit E-1) or in obtaining a short-term assignment if possible, the grievor stated that it had been just a thought. When asked if that request contradicted her position on the PM-05 (client liaison and partnerships) position that she was offered, she replied that there was an enormous difference between the two approaches and that she told her superiors that if positions in which she was interested became available, she would want to discuss them.

98        Mr. Walsh stated that the grievor could not be offered a position at her level. He looked for options in the region, but few BI-04 positions were available. The only positions available were BI-02 and PM-05 (client liaison and partnerships). He stated that he and the employer preferred to offer the grievor the PM-05 (client liaison and partnerships) position, as the salary and responsibilities were closer to the BI-04 (fish habitat conservation) position that she held and because she was good at developing partnerships. One of the objectives of the new structure was to increase partnerships, particularly with indigenous peoples. That position did not exist in the former organization. The grievor testified that she had no experience working with indigenous peoples.

99        Under cross-examination, Mr. Walsh agreed that all the stages described in the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5) sent to employees on October 24, 2012, and the collective agreement’s provisions, had to be followed.

100        Step 1 in the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5), entitled “[translation] Transfer Process” and intended for employees expressing interest in positions at the same or an equivalent group and level, stated the following: “[translation] Candidates for management positions such as BI-04 and BI-05 must take part in an interview to evaluate their leadership competencies.” Mr. Walsh stated that no interviews were held and that that sentence referred to affected employees applying for BI-04 or BI-05 positions who were not at those levels, not affected employees applying for positions at equivalent levels.

101        However, when asked why the grievor was not called to an interview to validate the leadership criterion for which she had not obtained a passing mark, Mr. Walsh replied that he did not know why the document stated that an interview was required. Instead, management had decided not to interview affected employees applying for positions at an equivalent level. He then acknowledged that he could not say that interviews were only for affected employees applying for higher-level positions.

102        Mr. Walsh was referred to the document containing the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5), in which a section in stage 1 entitled “[translation] Comments” states the following:

[Translation]

If it is deemed that an individual has not met the essential qualifications in the statement of merit criteria, a two-year retraining period must be considered in accordance with the Workforce Adjustment Directive and must be considered in the final decision-making process.

...

103        In addition, the email that Ms. Séguin sent to senior management on January 4, 2013 (Exhibit S-7), states the following:

[Translation]

...

An employee who fails (or who does not meet) the right-fit criterion and who fails the process while vacant positions are available shall be evaluated to determine if a two-year retraining program is possible. These situations will be dealt with case-by-case....

...

104        Mr. Walsh was asked about Mr. Savaria’s February 14, 2013, meeting with the grievor, at which she was informally told that Mr. Guitard would obtain the BI-04 (standards and guidelines) position and that Mr. Michaud would obtain the BI-04 (triage and planning) position. Mr. Walsh stated that on February 14, the employer had offered a position to Mr. Michaud (Exhibit S-22) without knowing if he would accept it.

105        Mr. Walsh did not remember the order in which the affected employees had been evaluated or whether the evaluation committee had first evaluated the grievor or Mr. Guitard.

106        Mr. Walsh acknowledged that in the grievor’s evaluation, the evaluation committee did not evaluate criteria AB13 (ability to establish relationships and to work with others to find collaborative solutions to complex problems) and P11 (innovation). When the committee decided that a competency was not met, it did not evaluate the other ones.

107        When asked why the grievor had not been evaluated on the first criterion, AB9 (ability to provide strategic advice on approaches and methods for resolving regulatory problems and questions), for the BI-04 (triage and planning) position, Mr. Walsh replied that the evaluation committee had evaluated criterion AB12 (ability to provide leadership and operational supervision (ability to make decisions when managing teams and other specialists)) and that she had not received a passing mark.

108        Since Mr. Michaud refused the transfer to the BI-04 (triage and planning) position on February 28, 2013 (Exhibit S-24), Mr. Walsh acknowledged that on that date, the position was still vacant. It was not offered to the grievor, and she was not offered retraining so that she could meet its qualifications, even though she had been declared a surplus employee on March 25, 2013 (Exhibit S-16), before Mr. Michaud, who was declared surplus on April 2, 2013 (Exhibit S-28).

109        When asked why he did not follow the directives for step 2, entitled “[translation] Considering Priority Employees”, in the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5), Mr. Walsh replied that he chose to offer the grievor another position because he felt that she was not qualified for the BI-04 (standards and guidelines) and BI-04 (triage and planning) positions. He stated that he did not offer Mr. Michaud the PM-05 (client liaison and partnerships) and that he did not evaluate him for the BI-04 (standards and guidelines) because Mr. Guitard was able to fill that position.

110        Mr. Walsh stated that he and Mr. Savaria knew Mr. Michaud very well, as they had supervised him for several years, and his evaluation corresponded to their knowledge. They determined that he had the competencies to fill the BI-04 (triage and planning) position.

111        In re-examination, Mr. Walsh stated that the difference between AB10 (ability to make decisions when managing teams and other specialists) and AB12 (ability to provide leadership and operational supervision (ability to make decisions when managing teams and other specialists)) was that the first criterion was only for the BI-04 (triage and planning) position, while the second criterion was common to the BI-04 (standards and guidelines) and BI-04 (triage and planning) positions. If an affected employee applied for both positions, the evaluation committee evaluated the competencies common to both of them.

112        As for retraining, Mr. Walsh stated that it was not offered to the grievor because he felt that she did not have the competencies for the BI-04 (standards and guidelines) and BI-04 (triage and planning) positions. However, he acknowledged that the evaluation committee did not analyze whether she could have acquired the knowledge through retraining.

IV. Summary of the arguments

A. For the grievor

113        The grievor did not dispute that the employer could choose the procedure for staffing positions in the new structure. She also did not dispute that she applied for both the BI-04 (standards and guidelines) and BI-04 (triage and planning) positions and that she was evaluated.

114        The grievor emphasized that she was not called to an interview and that she was not offered retraining. She added that Mr. Michaud did not apply under the procedure communicated to the employees and that he did not express interest or submit a cover letter. He was not evaluated for the BI-04 (standards and guidelines) position and was not interviewed, and he was offered only the BI-04 (triage and planning) position.

115        The grievor submitted that she was declared a surplus and thus a priority employee on March 25, 2013, while Mr. Michaud was not declared a surplus employee until April 2, 2013. She noted that she had priority status under ss. 40 and 41 of the PSEA and s. 5 of the Public Service Employment Regulations (SOR/2005-334).

116        Mr. Michaud was offered a transfer to the BI-04 (triage and planning) position on February 14, 2013. He refused it on February 28, 2013. On May 3, 2013, the employer offered him a job in that same position. He accepted it on May 6, 2013. Therefore, the BI-04 (triage and planning) position was vacant until May 6, 2013.

117        On May 31, 2013, the employer offered the grievor the PM-05 (client liaison and partnerships) position with pay protection according to the pay scale for the BI-04 group and level as long as she held that position or until the maximum pay rate for the PM-05 position exceeded that of the BI-04 group and level. She accepted it on June 10, 2013. She had not applied for it.

118        The grievor argued that the issue is determining whether the employer violated clause 1.1.16 of the WFAA. According to her, the evidence shows that it did not “[translation] exhaust all other avenues” before appointing her to a lower-level position.

119        According to the grievor, the second sentence in clause 1.1.16 of the WFAA is not discretionary, given the use of the word “shall” in its English version, which reads as follows:

1.1.16 Appointment of surplus employees to alternative positions, whether with or without retraining, shall normally be at a level equivalent to that previously held by the employee, but this does not preclude appointment to a lower level. Departments or organizations shall avoid appointment to a lower level except where all other avenues have been exhausted.

120        The grievor invited me to interpret clause 1.1.16 according to the rules for interpreting collective agreements (see Public Service Alliance of Canada v. Treasury Board (Correctional Service of Canada), 2015 PSLREB 10).

121        According to the grievor, the employer should have respected its national staffing process (Exhibit S-5) and evaluated only the employees who submitted their candidatures. As indicated in Ms. Séguin’s January 4, 2013, email to senior management (Exhibit E-7), employees who had not submitted their candidatures for positions at offices that were to remain open had to wait until the evaluations were complete to find out the positions that would remain vacant.

122        Furthermore, the employer should have interviewed the employees and offered retraining. Clause 1.1.16 of the WFAA states that surplus employees can be appointed to other positions with or without retraining, which is set out in Part IV of the WFAA. The employer did not even evaluate the possibility of offering the grievor retraining.

123        As for the evaluation of her qualifications, the grievor argued that the evidence shows a lack of transparency and the arbitrariness of the exercise.

124        The evidence does not indicate the order in which the grievor was evaluated. In her application for the BI-04 (triage and planning) position, she followed the right-fit criteria. However, although the first right-fit criterion was AB9 (ability to provide strategic advice on approaches and methods for resolving regulatory problems and questions), the evaluation committee ignored it (Exhibit S-18). In addition, a shortage of observations appeared in Mr. Michaud’s written evaluation (Exhibit S-26).

125        As for the credibility of the witnesses, the grievor argued that her testimony and that of Mr. Michaud were coherent, credible, and consistent. Since Mr. Michaud was retired, he had no reason to not tell the truth, as the outcome would not affect him. In support of that argument, the grievor cited the well-known decision by the British Columbia Court of Appeal in Faryna v. Chorny, [1952] 2 D.L.R. 354.

126        The grievor referred to Mr. Michaud’s testimony that the BI-04 (triage and planning) position is less demanding in terms of responsibilities and decision making than the BI-04 (fish habitat conservation) position she held for 11 years. She argued that if the leadership criterion for the BI-04 (triage and planning) position was so important to the employer, why did that position remain vacant between Mr. Michaud’s retirement on January 15, 2015, and September 2015, as he stated?

127        In addition to asking that the employer evaluate her competencies for a BI-04 position, the grievor suggested that she lost future job opportunities because she was no longer a BI-04. Therefore, she seeks compensation under s. 228(2) of the PSLRA.

128        The grievor also cited the following decisions in support of her arguments: Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112; Stevens v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 34; and Chênevert.

B. For the employer

129        The employer argued that the grievor’s grievance raises only one question: Did it violate clause 1.1.16 of the WFAA?

130        The employer submitted that the evidence shows the implementation of a new organizational structure and new positions under a national staffing process (Exhibit S-5).

131        The grievor was the subject of an evaluation based on criteria that applied to all employees, and she did not meet the criteria for the new BI-04 (standards and guidelines) and BI-04 (triage and planning) positions. According to Mr. Walsh’s testimony, no other BI-04 position was available in the region, and no other position was considered equivalent under the position equivalency table. All possibilities were considered before offering the grievor a lower-level position.

132        The employer submitted that the WFAA’s objective was to retain the largest number of employees in indeterminate positions who were affected by the workforce adjustment. For example, the employer referred to clauses 1.1.14, 1.1.17, and 6.1.1 to 6.3.1 of the WFAA, which read as follows:

Part I

Roles and responsibilities

1.1 Departments or organizations

...

1.1.14 Deputy heads shall apply this Appendix so as to keep actual involuntary lay-offs to a minimum, and lay-offs shall normally only occur where an individual has refused a reasonable job offer, or is not mobile, or cannot be retrained within two (2) years, or is laid-off at his or her own request.

...

1.1.17 Home departments or organizations shall appoint as many of their own surplus employees or laid-off persons as possible, or identify alternative positions (both actual and anticipated) for which individuals can be retrained.

...

Part VI

Options for employees

6.1 General

6.1.1 Deputy heads will be expected to provide a guarantee of a reasonable job offer for those affected employees for whom they know or can predict employment availability. A deputy head who cannot provide such a guarantee shall provide his or her reasons in writing, if requested by the employee. Affected Employees in receipt of this guarantee would not have access to the choice of options below.

6.1.2 Employees who are not in receipt of a guarantee of a reasonable job offer from their deputy head have one hundred and twenty (120) days to consider the three (3) options below before a decision is required of them.

6.1.3 The opting employee must choose, in writing, one (1) of the three (3) options of section 6.3 of this Appendix within the one hundred and twenty (120) day window. The employee cannot change options once having made a written choice.

6.1.4 If the employee fails to select an option, the employee will be deemed to have selected option (a), twelve (12) month surplus priority period in which to secure a reasonable job offer at the end of the one hundred and twenty (120) day window.

6.1.5 If a reasonable job offer which does not require a relocation is made at any time during the one hundred and twenty (120) day opting period and prior to the written acceptance of the Transition Support Measure (TSM) or the Education Allowance Option, the employee is ineligible for the TSM or the Education Allowance.

6.2 Alternation

6.2.1 All departments or organizations must participate in the alternation process.

6.2.2 An alternation occurs when an opting employee who wishes to remain in the Core Public Administration exchanges positions with a non-affected employee (the alternate) willing to leave the Core Public Administration under the terms of Part VI of this Appendix.

6.2.3 Only an opting employee, not a surplus one, may alternate into an indeterminate position that remains in the Core Public Administration.

6.2.4 An indeterminate employee wishing to leave the Core Public Administration may express an interest in alternating with an opting employee. Management will decide, however, whether a proposed alternation will result in retaining the skills required to meet the ongoing needs of the position and the Core Public Administration.

6.2.5 An alternation must permanently eliminate a function or a position.

6.2.6 The opting employee moving into the unaffected position must be, to the degree determined by the Employer, able to meet the requirements of the position, including language requirements. The alternate moving into the opting position must meet the requirements of the position, except if the alternate will not be performing the duties of the position and the alternate will be struck off strength within five (5) days of the alternation.

6.2.7 An alternation should normally occur between employees at the same group and level. When the two (2) positions are not the same group and level, alternation can still occur when the positions can be considered equal. They are considered equal when the maximum rate of pay for the higher paid position is no more than six per cent [sic] (6%) higher than the maximum rate of pay for the lower paid position.

6.2.8 An alternation must occur on a given date, i.e. two (2) employees directly exchange positions on the same day. There is no provision in alternation for a “domino” effect or for “future considerations”.

6.3 Options

6.3.1 Only opting employees who are not in receipt of the guarantee of a reasonable job offer from the deputy head will have access to the choice of options below:

1. 
   
   1. Twelve (12) month surplus priority period in which to secure a reasonable job offer: Should a reasonable job offer not be made within a period of twelve (12) months, the employee will be laid off in accordance with the Public Service Employment Act. Employees who choose or are deemed to have chosen this option are surplus employees.
   2. At the request of the employee, this twelve (12) month surplus priority period shall be extended by the unused portion of the one hundred and twenty (120) day opting period referred to in 6.1.2 which remains once the employee has selected in writing option (a).
   3. When a surplus employee who has chosen, or who is deemed to have chosen, option (a) offers to resign before the end of the twelve (12) month surplus priority period, the deputy head may authorise a lump-sum payment equal to the surplus employee’s pay for the substantive position for the balance of the surplus period, up to a maximum of six (6) months. The amount of the lump sum payment for the pay in lieu cannot exceed the maximum of that which he or she would have received had they chosen option (b), the Transition Support Measure.
      
      **
   4. Departments or organizations will make every reasonable effort to market a surplus employee during the employee’s surplus period within his or her preferred area of mobility
      
      or
2. Transition Support Measure (TSM) is a cash payment, based on the employee’s years of service in the public service (see Annex “B”) made to an opting employee. Employees choosing this option must resign but will be considered to be laid-off for purposes of severance pay.
   
   or
   
   **
3. Education allowance is a Transitional Support Measure (see option (b) above) plus an amount of not more than ten thousand dollars ($10,000) for reimbursement of receipted expenses of an opting employee for tuition from a learning institution and costs of books and mandatory equipment.
   
   Employees choosing option (c) could either:
   1. resign from the Core Public Administration but be considered to be laid-off for severance pay purposes on the date of their departure;
      
      or
      
      delay their departure date and go on leave without pay for a maximum period of two (2) years, while attending the learning institution. The TSM shall be paid in one (1) or two (2) lump-sum amounts, at the employee’s request over a maximum two (2) year period. During this period, employees could continue to be public service benefit plan members and contribute both employer and employee share to the benefits plans and the Public Service Superannuation Plan. At the end of the two (2) year leave without pay period, unless the employee has found alternate employment in the Core Public Administration, the employee will be laid off in accordance with the Public Service Employment Act.

133        The employer noted that an opting letter is the last option when a vacant position needs to be filled.

134        The employer agreed that as stated in clause 1.1.16 of the WFAA, it had to exhaust all other avenues before appointing surplus employees to lower-level positions. According to it, clause 1.1.16 of the WFAA raises the two following questions: What were the other avenues? Were they exhausted?

135        The employer argued that the national staffing process (Exhibit S-5) did not mention what would happen to employees who did not express interest in positions and that that remained a question for the employer to determine.

136        The employer maintained that under the national staffing process (Exhibit S-5), the evaluation committee could consider its personal knowledge of the candidates. The employer argued that in staffing matters, this does not constitute abuse of authority (see Visca v. Deputy Minister of Justice et al., 2007 PSST 0024).

137        As for the grievor’s evaluation, she did not meet the criteria established for the new BI-04 (standards and guidelines) and BI-04 (triage and planning) positions in terms of decision-making authority and responsibilities. The evaluation committee did not evaluate all the criteria because the grievor did not obtain a passing mark for criteria AB10 (ability to make decisions when managing teams and other specialists) and AB12 (ability to provide leadership and operational supervision (ability to make decisions when managing teams and other specialists)). According to Mr. Walsh, once one criterion was not met, the committee ceased evaluating, as all criteria had to be met to obtain a position.

138        The employer argued that neither the method for evaluating candidates nor how it was conducted was included in the WFAA.

139        As for Mr. Michaud’s testimony, the employer argued that his statements must not be used to determine the possibilities for filling the positions, as it is evidence about events that occurred after the employer’s decision was made (see Cie Minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 S.C.R. 1095). The employer referred to Mr. Michaud’s absence from his new BI-04 (triage and planning) position for 58 of 101 weeks. According to it, Mr. Michaud was unhappy with the decision to refuse him an opting letter, as he wanted to retire.

140        As for the other possibilities for the grievor, the employer noted Mr. Walsh’s testimony that he had looked into it and that no other BI-04 positions were available in the region.

141        As for retraining for the grievor, Mr. Walsh stated that that meant a formal evaluation by the evaluation committee. According to him, the committee discussed retraining but judged that the grievor could not acquire the knowledge for the position based on its knowledge of her work over the years. He testified that the committee had determined that Mr. Michaud had the competencies to fill the BI-04 (triage and planning) position. However, Mr. Walsh acknowledged that the committee did not evaluate the grievor for retraining.

142        According to the employer, since all possibilities were considered, thus, it went over offering the grievor a lower position, namely, at BI-02 or PM-05 (client liaison and partnerships). In his testimony, Mr. Walsh testified that he and the employer preferred that the grievor fill the PM-05 (client liaison and partnerships) position. The employer argued that although she would have preferred a biologist position, it was not required to respect the candidates’ preferences.

143        In evaluating Mr. Michaud based on personal knowledge, the evaluation committee acted in accordance with directives from national headquarters. Issuing an opting letter had to be the employer’s last option.

144        The employer submitted that the evidence did not show bad faith or adverse treatment on its part against the grievor.

145        As for possible remedies, the employer suggested that the Board could not appoint the grievor to a position or order that a staffing process be conducted anew.

146        As for the compensation claim, the employer submitted that there is no evidence of real damages (see Canada (Attorney General) v. Tipple, 2011 FC 762 at para. 58). The grievor did not testify about any harm that she suffered, there was no evidence of any, and there was no lost pay. The employer noted that in March 2012, she requested a BI-03 position.

147        According to the employer, the only possible remedy is a declaration that it acted incorrectly, and it asks that the grievance be dismissed, as the collective agreement was not violated.

C. The grievor’s response

148        The grievor argued that since the employer established the national staffing process (Exhibit S-5), it had to follow it. That exercise had to be carried out to achieve the WFAA’s objectives; otherwise the WFAA would have been devoid of meaning.

149        As for Mr. Michaud’s testimony, he was not interested in the BI-04 (triage and planning) position and did not deny that he wanted an opting letter.

150        With respect to retraining for the grievor, the employer acknowledged that that possibility was not evaluated.

151        As for the importance of relations with indigenous peoples that the employer attributed to the PM-05 (client liaison and partnerships) position, the grievor testified that she had no experience in that area.

152        The grievor submitted that she was not considered for a BI-02 position and that she was not evaluated for one.

V. Reasons

153        In a workforce adjustment context, one of the guiding principles is maintaining the employment of indeterminate employees. In that respect, the WFAA’s “Objectives” section contains the following sentence: “This should not be construed as the continuation of a specific position or job but rather as continued employment.”

154        By appointing the grievor to the PM-05 (client liaison and partnerships) position, for which she had not applied, the employer ensured her continued employment with the federal public service.

155        However, this case is a matter of determining whether the employer violated the collective agreement, namely, clause 1.1.16 of the WFAA, cited earlier and reproduced here for ease of consultation:

1.1.16 Appointment of surplus employees to alternative positions, whether with or without retraining, shall normally be at a level equivalent to that previously held by the employee, but this does not preclude appointment to a lower level. Departments or organizations shall avoid appointment to a lower level except where all other avenues have been exhausted.

156        The grievor, who held the BI-04 (fish habitat conservation) position, in her grievance alleged that the employer did not “[translation] exhaust all other avenues” before appointing her to a lower-level position, namely, the PM-05 (client liaison and partnerships) position, and that it did not appropriately evaluate her competencies.

157        Before addressing that issue, in light of the employer’s comments, clarification is needed on the contradiction between on the one hand the testimonies of the grievor and Mr. Michaud and on the other hand Mr. Walsh’s with respect to what he said at the employee meeting on October 24, 2012, i.e., whether affected employees who did not express interest in a position would be entitled to an opting letter. As I am not seized with a grievance filed by Mr. Michaud claiming that the employer should have followed up on his request for an opting letter, I cannot decide this question, and I am not required to resolve the contradiction in the testimonies on this matter.

158        However, I find that Mr. Michaud’s testimony and the documentary evidence about, among other things, the fact that he did not express interest in a BI-04 position and that he refused a transfer to the BI-04 (triage and planning) position before accepting the employer’s job offer, provide context as to how the employer conducted the workforce adjustment in the Québec Region, specifically in Mont-Joli. Furthermore, I find useful Mr. Michaud’s description of his duties in the BI-04 (triage and planning) position compared to the positions that he had held throughout his career with the employer.

159        A workforce adjustment can have serious repercussions on affected indeterminate employees. That is clear from reading the WFAA’s objectives and its clauses 1.1.1 and 1.1.2. That is why it is important that the rules and directives that the employer put in place be compliant with the WFAA and be followed in such an exercise. Mr. Walsh agreed that all the steps described in the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5) that he communicated to employees on October 24, 2012, and in the collective agreement’s provisions, had to be followed.

160        The workforce adjustment that took place with Fish Habitat Management restructuring was a serious exercise. According to the evidence, the employer offered affected employees training for interviews and for preparing their files. Those who wanted to leave the public service voluntarily received the services of financial advisors.

161        However, I believe that the employer did not follow all the directives and rules that it put in place to give effect to the WFAA’s provisions, which resulted in it not exhausting all other possibilities before appointing the grievor to a lower-level position.

162        I will deal first with the evaluation committee’s evaluation of the grievor.

163        Mr. Walsh stated that it was decided at the employer’s national level to not request performance evaluations of affected employees, as they were not conducted consistently across the country and because not all employees had annual evaluations.

164        The grievor applied for both the BI-04 (standards and guidelines) and BI-04 (triage and planning) positions. She was not successfully primarily because, according to the committee’s evaluation, she did not meet the leadership criterion. According to the evidence, Mr. Dupuis did not know the candidates. Mr. Walsh and Mr. Savaria knew them, and Mr. Walsh made the final decisions. He stated that he and Mr. Savaria used their knowledge of the grievor to reach their decision, as was permitted under the national staffing process (Exhibit S-5), as follows: “[translation] Managers may refer to their personal knowledge of the candidates during the evaluation process to validate the information provided” [emphasis added]. It is clear that that text did not allow the evaluation committee to use only its personal impressions to evaluate a candidate, although it could use such impressions to validate information the candidate provided.

165        I am left wondering about the fact that the evaluation committee made its decision about the grievor based on a lack of leadership. She testified that in the 11 years she held the BI-04 (fish habitat conservation) position, the employer never mentioned to her that she lacked leadership. The employer did not contradict her testimony in that respect. Mr. Savaria, her supervisor, did not testify. That Mr. Walsh and Mr. Savaria used their personal knowledge of her to form the impression that she lacked leadership was not consistent with the fact that she held the BI-04 (fish habitat conservation) position for 11 years.

166        One directive that I believe the employer did not follow was about affected employees’ expressions of interest in positions.

167        The forms that affected employees had to fill out to express their interest in the positions to be filled required that they submit their choices no later than December 14, 2012, failing which the employer would deem that they had chosen not to take part in the exercise.

168        In addition, Ms. Séguin’s January 4, 2013, email to senior management (Exhibit E-7) indicated that affected employees who had not applied for positions at offices that were to remain open had to wait until the evaluations ended to find out the positions that would remain vacant. Although Mr. Michaud did not express interest in a position and advised the employer of that several times, he received a transfer offer and a job offer from it for the BI-04 (triage and planning) position. Those offers were based solely on personal impressions, without advising or consulting him.

169        In addition to going against the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5) with respect to expressions of interest, the transfer offer and the job offer made to Mr. Michaud also contradicted the employer’s rule that an evaluation committee’s personal impressions of candidates could be used to validate the provided information. However, Mr. Michaud did not provide any information to the employer on the BI-04 (triage and planning) position.

170        On February 14, 2013, the employer offered Mr. Michaud a transfer to the BI-04 (triage and planning) position, which he refused on February 28, 2013. According to the evidence, the position remained vacant until May 6, 2013, when he accepted a job offer for it.

171        The grievor was declared a surplus employee on March 25, 2013, before Mr. Michaud, who was declared a surplus employee on April 2, 2013.

172        However, between February 28 and May 6, 2013, the employer did not offer the grievor an interview or consider the possibility of offering her retraining to acquire the knowledge for the vacant BI-04 (triage and planning) position, contrary to the WFAA and its own directives.

173        Step 1 of the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5) was intended for affected employees expressing interest in positions at the same or an equivalent group and level. The strategy states the following: “[Translation] Candidates for management positions such as BI-04 and BI-05 must be interviewed to evaluate their leadership competencies.”

174        Mr. Walsh first stated that there were no candidate interviews and that according to him, step 1 of the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5) did not apply to affected employees who applied for an equivalent position but only to those at a lower level who expressed interest in a BI-04 or BI-05 position. However, he then acknowledged that he could not affirm that the interviews were only for employees applying for positions at a higher level.

175        By not interviewing the grievor to evaluate her leadership competencies, the employer did not seriously consider the possibility of offering her either the BI-04 (standards and guidelines) or the BI-04 (triage and planning) position. Furthermore, given her uncontradicted testimony that the employer had never accused her of lacking leadership, an interview to that end would have allowed it to consider relevant facts that might have come to light and to have a legitimate basis for its decision.

176        As for retraining, step 1 of the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5), as well as Ms. Séguin’s January 4, 2013, email to senior management (Exhibit E-7), state that an affected employee who does not meet the “right-fit” criterion for a position must be considered for a two-year retraining period in accordance with the WFAA before a final decision is made on a transfer.

177        In re-examination, Mr. Walsh stated that retraining was not offered to the grievor because he felt that she did not have the competencies for the BI-05 (standards and guidelines) and BI-04 (triage and planning) positions in which she had expressed interest. However, he acknowledged that the evaluation committee did not analyze whether she could acquire that knowledge through retraining. The position Mr. Walsh took in his testimony contradicted the WFAA’s letter and spirit. I have already found that the method the employer used to meet the WFAA’s objectives, namely, the national staffing strategy, cannot be isolated from the WFAA itself. Clause 1.1.1 of the WFAA states that in workforce adjustment situations, the employer is responsible for treating affected employees equitably. As I have indicated, the Habitat Management Program staffing strategy (Exhibits S-2-A and E-5) and Ms. Séguin’s January 4, 2013, email (Exhibit E-7) provide that if an individual does not meet the essential qualifications in the statement of merit criteria, a two-year training period must be considered.

178        First, I find Mr. Walsh’s testimony somewhat exaggerated because according to the evidence, the grievor held the BI-04 (fish habitat conservation) position for 11 years, which included complex responsibilities. Furthermore, according to Mr. Michaud’s testimony, the responsibilities of the BI-04 (triage and planning) position were less demanding and less complex than those of the BI-04 (fish habitat conservation) position. So it seems that if the grievor actually had leadership problems, a retraining period would have allowed her to address them. It must be remembered that Mr. Michaud had once worked on her team in a BI-03 position and had acted in the BI-04 (fish habitat conservation) position for two-and-a-half years, while she was on leave.

179        Furthermore, Mr. Walsh admitted that the employer did not analyze whether the grievor could have acquired the necessary qualifications through retraining. I believe that by not offering her retraining, the employer acted arbitrarily, as it did not follow its procedure. By refusing to interview her, it decided to ignore relevant facts that could have come to light.

180        I find that by not following its directives, the employer acted arbitrarily in its treatment of the grievor, that it did not exhaust all avenues before appointing her to a position at a level lower than BI-04, and that it contravened clause 1.1.16 of the WFAA.

181        As a corrective measure, the grievor asked that the employer evaluate her competencies for a BI-04 position. In her arguments, she also sought compensation under s. 228(2) of the PSLRA for the loss of future jobs, as she no longer has a BI-04 position.

182        As for the evaluation claim, I note that the March 25, 2013, letter informing the grievor that she had been declared a surplus employee (Exhibit S-16) contained a guarantee of reinstatement priority to a position at the BI-04 group and level or to a position at an equivalent or lower level. I also note that the letter dated May 31, 2013, offering her a job in the PM-05 (client liaison and partnerships) position (Exhibit S-17) contains the same guarantee of reinstatement priority. That guarantee conforms with the English version of paragraph 5 of Annex C of the WFAA and conforms with the provisions of s. 10 of the Public Service Employment Regulations (SOR/2005-334). Therefore, in the circumstances of this case, she could have claimed a reintegration priority for a position at the BI-04 group and level or an equivalent or lower position as of June 10, 2013, for a period of one year. I find that under the circumstances, the guarantee of reinstatement priority is an appropriate corrective measure to remedy the employer’s contravention of clause 1.1.16 of the WFAA. However, I believe that it is appropriate to offer the grievor a retraining period to perfect her leadership skills.

183        With respect to the compensation claim, it must be remembered that the grievor was appointed to the PM-05 (client liaison and partnerships) position with salary protection under the pay scale for the BI-04 group and level. Furthermore, she did not submit any evidence of a loss of future jobs, of damage, or of harm suffered. Therefore, I dismiss this claim.

184        For all of the above reasons, the Board makes the following order:

VI. Order

185        The objection to the Board’s jurisdiction to hear the grievance is dismissed.

186        The objection to the deadline for filing a part of the grievance is dismissed.

187        I declare that the employer acted arbitrarily against the grievor in the workforce adjustment.

188        I declare that the employer violated clause 1.1.16 of Appendix G of the collective agreement, on workforce adjustment, by appointing the grievor to a lower-level position.

189        I order the employer to offer the grievor a retraining period of up to two years from the date of this decision, to perfect her leadership skills.

April 26, 2018.

FPSLREB Translation