FPSLREB Decisions

Elimination of position - Declaration of surplus employee - Workforce Adjustment Directive - Disguised termination - Jurisdiction of adjudicator - Paragraph 92(1)(b) and subsection 92(3) of the Public Service Staff Relations Act (PSSRA) - the grievor challenged the employer's decision to declare him surplus, alleging that his employment had been terminated for disciplinary reasons because he had filed harassment complaints against management and some of his colleagues - the employer objected to the adjudicator's jurisdiction to hear the grievance claiming that the decision to declare the grievor surplus was an administrative decision made in good faith - the adjudicator took the objection under consideration and heard the evidence - the grievor argued that, during his period of surplus priority, management planned to hire someone with the same skills after his departure - he also argued that the departmental directives on how to proceed with workforce reduction had not been followed in his case - moreover, he pointed out that the employer had threatened him with disciplinary action, on three occasions, a few days before declaring him surplus - the employer replied that the grievor was declared surplus because it had been decided to terminate the program to which he was assigned - the employer added that the filing of harassment complaints or behaviour conducive to disciplinary action cannot protect an employee from workforce reductions - further, the employer argued that, at no time, did it act in a disloyal, underhanded or duplicitous manner, in bad faith or with treachery, hastily or dishonestly - the grievor replied that the employer used the context of budget cuts to get rid of an employee it considered unwanted - the adjudicator ruled that he had jurisdiction to determine whether the case before him was a disguised disciplinary action - he found that the evidence did not show that the decision to declare the grievor surplus was a disguised disciplinary action or anything other than an administrative decision made in good faith - consequently, the adjudicator determined that he did not have jurisdiction to hear the grievance. Grievance denied. Cases cited: Jacmain v. A.G. of Canada et al, [1978] 2 S.C.R. 15; Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (F.C.A.); Canada (Treasury Board) v. Rinaldi, February 25, 1997, T-761-96 (F.C.T.D.); Rinaldi (166-2-26927, 166-2-26928 and 166-2-27383).