FPSLREB Decisions

Jurisdiction - Termination (disciplinary) - Termination under the guise of lay-off - Procedure - Remedy - Payment in lieu of reinstatement - the grievor claimed that his lay-off as a result of a reverse order of merit exercise was in fact a termination for disciplinary reasons - the grievor also filed a grievance claiming that prior to the lay-off the employer had failed to provide him with a reasonable job offer in accordance with the employer's Work Force Adjustment Policy - the employer objected to the adjudicator's jurisdiction to entertain the grievance on the basis that the employer's actions were administrative in nature and thus could not be the subject of a referral to adjudication under section 92 of the Public Service Staff Relations Act - the adjudicator decided that he would rule on the employer's objection after having heard the evidence - the adjudicator found that the employer had been dissatisfied with the grievor's performance and conduct for a number of years but had never given the grievor formal notice of its dissatisfaction, contrary to the employer's own policies - the result of the process leading to the grievor's lay-off was pre-determined as the employer had identified the grievor as the person most likely to be laid off - in fact, the grievor had been removed from the organizational chart prior to the lay-off - in effect, the lay-off constituted a disciplinary termination - thus, the adjudicator found that section 92 conferred upon him jurisdiction to deal with the termination grievance and found on the evidence that the grievor had been unjustly terminated - the adjudicator commented that in all but the most exceptional cases the remedy in the face of an unjust termination is reinstatement - nevertheless, the adjudicator did not reinstate the grievor - he found that although the grievor had never been given formal notice of his shortcomings, he was apprised of them verbally - however, the grievor did not recognize these shortcomings - the adjudicator also found that the employer had lost confidence in the grievor - in view of the climate in which the grievor would have been reinstated, the adjudicator felt that the grievor would derive more benefit from payment in lieu of reinstatement - considering the grievor's years of service and clean disciplinary record, he was awarded the amount of $70,000 - the second grievance was denied as the adjudicator found that the employer was not required to make a reasonable job offer to the grievor. Grievance against termination allowed in part. Grievance regarding reasonable job offer denied.