FPSLREB Decisions
Decision Information
Termination (Non-disciplinary) - Layoff - Grievance procedure (Timeliness) - Undated grievance - Early Retirement Incentive Program - Jurisdiction - Work Force Adjustment Directive - Reasonable job offer - while on leave without pay, during which the grievor was working in the private sector and which continued for four years, the grievor was notified that he had been declared a surplus employee under the Work Force Adjustment Directive (WFAD) - the employer made a job offer to the grievor, subject to the approval of a volunteer's resignation and request for pay in lieu of unfulfilled surplus status - the grievor's initial six-month surplus period was extended by the employer and the grievor was given more time to consider the job offer - the grievor requested the employer's authorization to resign under the Early Retirement Incentive Program (ERI Program) and informed the employer that he considered the job offer made to him to be unreasonable under the WFAD - the employer extended the grievor's surplus period once again - the employer then determined that the job offer made to the grievor was reasonable under the WFAD and, therefore, that the grievor was not eligible for the ERI - the employer further determined that the grievor had refused a reasonable job offer - however, the employer extended the grievor's surplus period once again - the grievor's surplus period was finally extended one last time, to coincide was a layoff date chosen by the employer - the grievor grieved his layoff - the National Joint Council (NJC) found that the job offer the employer made to the grievor was not reasonable under the WFAD and that there was no basis for the grievor's layoff - as a result, the employer offered the grievor a second position, at the same level as the one he had prior to being declared a surplus employee, and the grievor accepted it - the employer and the grievor could not agree on a date for the grievor to report to work, as the latter was alleging that he needed several months to complete the project on which he was working in the private sector - the employer notified the grievor to report to work on a given date and that his failure to do so would be considered a rejection of this second job offer - the grievor responded by stating that this second job offer was not a corrective action addressing the substance of the grievance he had filed and informed the employer that he was taking his grievance to the next level of the grievance procedure - the employer responded that it deemed the grievor's response to be a rejection of the second job offer - the NJC agreed with the grievor - the adjudicator rejected an argument by the employer that the grievance had not been filed in time, for the grievance had not been filed during the grievor's initial surplus period, and decided that the grievor's undated grievance was timely, because it had been filed during the grievor's total surplus period - the adjudicator found that, as far as the grievance before him was relating to the employer's decision not to allow the grievor to leave under the terms of the ERI Program, he lacked jurisdiction to entertain the grievor's claim, as the ERI Program does not arise from the collective agreement - the adjudicator found that the initial job offer was not reasonable under the WFAD, because the position being offered to the grievor was not vacant and there was no established date as to when it would become vacant - the adjudicator also took into account the fact that the employer extended the grievor's surplus period on four occasions - the adjudicator found that the second job offer made to the grievor, as a corrective action to his NJC grievance, was reasonable under the WFAD and that the grievor's surplus period should have been extended up to the date on which the grievor, by his action, refused that offer, when he failed to report to work on the date specified by the employer. Grievance allowed in part. Case cited: Connors (166-2-27605)
Decision Content
File: 166-2-28296 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN WILLIAM THOMAS VAUGHAN Grievor and TREASURY BOARD (Public Works and Government Services Canada)
Employer
Before: Colin Taylor, Q.C., Board Member For the Grievor: Paul Reniers, the Professional Institute of the Public Service of Canada
For the Employer: Richard Fader, Counsel
Heard at Vancouver, British Columbia, July 8 and 9, 1998.
1 I The Grievor, Mr. William T. Vaughan, is a mechanical engineer. He commenced employment in the Public Service in 1975 with Transport Canada and moved to Vancouver in 1980 with Public Works.
In or about 1990, the Grievor took a leave without pay which continued for about 4 years, during which time, the Grievor occupied an engineering position in the private sector.
On December 17, 1991, the Grievor was notified that his former position , Chief Maintenance Engineering, was staffed on an indeterminate basis.
On October 12, 1994, the Grievor was notified that, pursuant to s.29(1) of the Public Service Employment Act, he was surplus to requirements due to lack of work with a scheduled layoff date of April 12, 1995.
The 1991 Work Force Adjustment Directive (WFAD) was deemed to be part of the collective agreement between the parties. The WFAD guaranteed every indeterminate employee, whose services were no longer required because of a workforce adjustment, a reasonable job offer within the Public Service.
The WFAD defines a reasonable job offer as:
2 “... an offer of indeterminate employment within the Public Service, normally at an equivalent level but not precluding higher or lower levels, and is guaranteed to an employee affected by normal work force adjustment who is both trainable and mobile. Where practicable, a reasonable job offer shall be within the employee’s headquarters area as defined in the Travel Policy;”
Article 1.1.14 of the WFAD provides that the surplus period shall be extended “until at least one such [reasonable job] offer has been made”.
If an employee refuses a reasonable job offer during the surplus period, the employee is subject to layoff at the end of such period. In the absence of a reasonable job offer, the surplus period is extended and the employee not laid off until after a reasonable job offer has been refused:
“1.1.31 When an employee refuses a reasonable job offer during the sixmonth notice period, he or she shall be subject to layoff at the end of such notice period. However, when the home department has been unable to make a reasonable job offer during the first sixmonth surplus period, such period shall be extended and the employee shall not be laid off until after a reasonable job offer has been refused.”
Article 1.4 of the WFAD requires employees affected by workplace adjustment situations to actively seek alternative employment in cooperation with their departments; to seek information about their entitlements and obligations and to seriously consider
3 job opportunities presented to them. In the words of Mr. Tarte:
“In order for the system to work all concerned must cooperate and provide the necessary flexibility.” James Sampson and Treasury Board (Indian and Northern Affairs Canada), May 13, 1996 (p.17) Board File 166 226494
On February 17, 1995, the Grievor received a job offer:
“... subject to the approval of a ‘Volunteer’s’ (under clause 7.2.6 of the WFA Directive) resignation and ‘Request For Pay In Lieu’ in order to place you as a surplus employee.
The effective date of this appointment is to be determined.” (emphasis in original)
On March 6, 1995, the Grievor replied to what he called the “conditional offer”, explaining that, in view of the conditions attached to the job offer, he had asked his Union for advice.
The Grievor went on to say that, since receiving the “conditional” job offer, he had become aware of a Treasury Board news release, dated February 21, 1995, with respect to downsizing of the Public Service and, in particular, had taken note of the “Early Retirement Incentive”. The Grievor wrote that Evan Heidinger from the Union had advised “from his knowledge of the measures, I am eligible for the ERI and that the
4 incentive is due to be in place by April 1, 1995”. The Grievor went on to say:
“This obviously changes the situation regarding my status and creates a third option to accepting or rejecting the conditional job offer.”
Dudley Rowlands was the volunteering employee under Article 7.2.6 of the WFAD.
Pursuant to the declaration of surplus employee status dated October 12, 1994, the Grievor’s layoff date of April 12, 1995 was approaching.
By letter dated April 10, 1995, the Employer extended the Grievor’s layoff date to July 12, 1995 “All other information in your initial letter dated October 12, 1994, remains applicable”.
On May 16, 1995, the Employer wrote to the Grievor extending the date for acceptance of the job offer:
“This letter is in reference to the outstanding offer of indeterminate appointment made February 17, 1995, to Head, Mechanical Engineering, position # 6200091, ENENG05, Architectural & Engineering Services, Public Works and Government Services Canada located at 1166 Alberni Street, Vancouver, B.C.
Please be advised that I am extending the response period for you to confirm your acceptance or rejection of this offer. Please respond by May 25, 1995. Failure to
5 respond will be considered a refusal of this offer and may lead to lay off.
If you have any questions or concerns, please feel free to contact Susan Dumbleton, Redeployment Services Officer, at # 6236085 or Taffy Metz, Human Resource Advisor, at # 6236091.”
The Grievor received details of the Early Retirement Incentive (ERI) program and, by letter dated May 24, 1995, he confirmed his decision of March 6, 1995 to leave the Public Service under the provisions of that program. For that purpose, the Grievor asserted that the job offer was not “reasonable”.
On July 11, 1995, one day before the expiry of the Grievor’s onceextended surplus period, the Employer again extended the surplus status to a new layoff date of August 31, 1995. The notice provided:
“All other information in your initial letter dated October 12, 1994 remains applicable.”
On July 25, 1995, the Employer wrote to the Grievor as follows:
“On February 17, 1995 an offer of indeterminate employment to the position of Head, Mechanical Engineering (#6200091) EN ENG05, Architectural and Engineering Services, Buildings, Public Works and Government Services Canada, 1166 Alberni Street, Vancouver, B.C. was sent to you.
In your letters of March 06, 1995 and March 24, 1995, you requested the ERI effective April 01, 1995.
This letter will confirm that in accordance with the Treasury Board Terms and Conditions on the Early Retirement Incentive (ERI) (previously forwarded to you), employees must, ‘if subject to the Workforce Adjustment Directive (WFAD), not have received a reasonable job offer before leaving the Public Service’. As you were provided with a Reasonable Job Offer on February 17, 1995, you are not eligible for the ERI.
As you have not accepted the offer of indeterminate employment as per our letters dated February 17, 1995 and May 16, 1995, I will be proceeding with a recommendation for layoff.”
Notwithstanding that letter, the Employer did not proceed with notice of layoff.
On August 31, 1995, the Employer’s surplus status was extended with a new layoff date of October 31, 1995. “All other information in your initial letter dated October 12, 1994 remains applicable.”
On January 23, 1996, the Employer notified the Grievor that he would be laid off on February 23, 1996 and his surplus status was extended to coincide with that date.
On March 4, 1996, the Grievor filed a grievance in the following form:
“I have received a letter from my Regional Director General, dated 23 January 1996, wherein she advises me that I will be laid off effective 23 February 1996. In February
7 1995 and prior, I had discussions with my then manager, J. Brown, about being declared surplus and receiving the separation benefit payable to those individuals eligible for retirement. Although these discussions have been ongoing, I have never received a firm answer from management until the abovenoted letter. I therefore grieve.
This an NJC grievance. I allege that the provisions of the Workforce Adjustment Directive have been contravened.”
The grievance requested: “That I be declared surplus under the provisions of the WFA Directive as it existed in April of 1995, including payment of the separation benefit.”
On December 12, 1996, the grievance was allowed at second level. The National Joint Council found that the job offer made on February 17, 1995 was not reasonable and there was no basis for layoff under the WFAD. The letter from the National Joint Council goes on to say:
“However, the corrective action you requested, that is for your layoff to be rescinded, is not possible under the Public Service Employment Act. Therefore, in order for you to be reinstated into the Public Service, the Deputy Minister has given instructions to regional management to identify and offer you a position.
Also, in light of the above, I cannot grant you the corrective action requested in your grievance presentation which was to be declared surplus under the provisions of the
8 WFA Directive as it existed in April 1995, including payment of the separation benefit.”
In response to the decision, the Employer, on December 24, 1996, offered the Grievor a position as Chief, Mechanical Engineer, ENENG05, which was equivalent to the position he had previously filled.
On January 10, 1997, the last day for acceptance, the Grievor accepted the offer without conditions.
On January 15, 1997, Mr. G.H. Davy, Regional Director, telephoned the Grievor to discuss the date on which the Grievor would report for duty. It was not a fruitful discussion. The Grievor would not commit to a date on which he would take up the position he had accepted. Mr. Davy was anxious to fill the position and pressed him for a commitment. The Grievor was then employed in the private sector and said he might need “several months” to fulfill his professional responsibilities. This was obviously of no benefit to Mr. Davy and clearly unsuitable.
On January 22, 1997, Mr. Davy notified the Grievor that his appointment was effective February 17, 1997 and failure to report for duty would be considered a rejection of the offer of employment.
On February 13, 1997, the Grievor wrote to the Employer as follows:
9 “I am in receipt of your letter of January 22, 1997 regarding position #6200091A.
I understand that the job offer was made as a result of the directive issued by Mr. G.R. Curran, Departmental Liaison Officer, National Joint Council, to identify and offer me a position. This directive was issued in response to my grievance, which was allowed by him.
However, in spite of the grievance being allowed, this proposed corrective action does not appear to address the substance of my grievance. Therefore the grievance has been taken to the next level by PIPS.
As I stated on January 15th, when we spoke on the telephone, in view of the ambiguity of the response to the grievance, I am unable to make any commitments regarding a start date at present, and cannot accept the ultimatum in your letter. When the grievance process has been properly completed with a coherent conclusion, I will be able to assess the situation and come to an informed decision.
I appreciate your cooperation in this matter.”
Mr. Davy responded on February 24, 1997: “This will acknowledge receipt of your letter dated February 13th, 1997, and received by fax on February 14th, in response to my letter of January 22nd, 1997, regarding your reporting date.
I must confirm that it is essential that I staff the abovenoted position. As your letter indicates that you are ‘unable to make any commitments regarding a start date at present’, your letter is deemed to be a refusal of a reasonable job offer.” (emphasis added)
On November 12, 1997, the National Joint Council decided that, since the first job offer received by the Grievor was not reasonable, “... the grievor was not treated within the intent of the directive.”
II Notwithstanding the form of the grievance and the remedy requested, it is clear that the Grievor has, throughout this long process, had his sights set squarely on securing the ERI. As early as March 6, 1995, the Grievor told the Employer that the ERI program “creates a third option to accepting or rejecting the conditional job offer”. He then formally requested the ERI.
On May 24, 1995, the Grievor took exception to the first job offer and said he was “exercising my right to leave the Public Service under the provisions of the ERI”.
The ERI was the Grievor’s clear objective and that was the central thrust of the Union’s submission in these proceedings.
11 III Unlike the WFAD, the ERI is not a part of the collective agreement, nor is it a part of the WFAD. It flows from a regulation. How can it be said that the Grievor’s claim for ERI flows from the interpretation or application of the collective agreement? Moreover, the grievance does not claim ERI and the Employer was not prepared to meet this claim. The reference to adjudication provides that the grievance is referred to adjudication under s.92(1)(a) of the Act and stipulates that the Grievor relies on s.36.03(28) Workforce Adjustment Policy. There is no mention of the ERI.
Even if the Union was permitted to overcome the defect in the grievance with respect to the claim for ERI, there remains the insuperable hurdle of my jurisdiction to deal with such a claim. If it could be said that the dispute between the parties, viewed in its essential character, arises from the collective agreement, then the principles enunciated in Weber v. Ontario Hydro (1995) 125 D.L.R. (4th) 583 and New Brunswick v. O’Leary (1995) 125 D.L.R. (4th) 609 might aid the Grievor.
Leaving aside the grievance, the essential character of the dispute, as framed by the Union in these proceedings, is a claim for ERI, a program established by regulation under the Special Retirement Arrangements Act which has, for its purpose, the reduction of the Public Service by providing an
12 incentive to employees declared surplus between April 1, 1995 and March 31, 1998.
Eligibility for ERI can not be said to arise from the collective agreement. I observe, in passing, a National Joint Council bulletin of June 29, 1998, which, on page 4, contains the following:
“Grievance 28.4.499 Early Retirement Incentive
The Executive Committee considers a grievance in regard to Early Retirement Incentive (ERI).
The ERI Program is not provided for under the Work Force Adjustment Directive and is therefore beyond the jurisdiction of the National Joint Council. The Executive Committee agreed that it lacked jurisdiction to deal with the matter.”
Even if the Grievor had overcome the defect in the grievance which makes no claim for ERI, I conclude that I do not have jurisdiction to consider the claim. See to the same effect: Connors and Treasury Board (Revenue Canada Taxation) Board File 166227605.
Since I have determined that I am without jurisdiction with respect to ERI, it would be unwise for me to comment on the merits of the Grievor’s claim which was exhaustively canvassed before me.
13 IV The Employer submitted that the grievance was not filed on time and should, therefore, be denied.
The Employer suggested the grievance, to be timely, should have been filed in relation to the events of February 1995 through to April 1995. I do not agree. The Grievor’s notice period continued to be extended following the job offer in February 1995 through to his layoff in February 1996.
The Grievor was laid off on February 23, 1996 and his grievance, while undated, was filed with a covering letter dated March 4, 1996. The Employer’s timeliness argument is dismissed.
V With respect to the Grievor’s claim under the WFAD, it is my view that the job offer dated February 17, 1995 was not reasonable. The position was not vacant nor was there an established date when it would become vacant. The offer was based on the possibility that the position might become vacant under circumstances dependent on the incumbent. I observe that the National Joint Council came to a similar conclusion.
By letters dated April 10, 1995, July 11, 1995 and August 31, 1995, the Grievor’s surplus period was
14 extended to a new layoff date of October 31, 1995. These extensions were in accordance with Article 1.1.14 of the WFAD which reads:
“Departments shall guarantee every affected or surplus employee who is both mobile and retrainable a reasonable job offer during the surplus period, and shall extend any such surplus period until at least one such offer has been made. Where practicable, a reasonable job offer shall be within the employee’s headquarters area as defined in the Travel Policy. Deputy heads shall apply this directive so as to keep actual involuntary layoffs 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 years, or is laid off at his or her own request.”
On January 23, 1996, the Grievor’s surplus status was again extended to a new layoff date of February 23, 1996. The second paragraph of that letter reads:
“You will cease to be an employee at the close of business on February 23, 1996, unless you are offered and accept a position prior to that date.”
The Employer suggested that the job offer of February 17, 1995, which I have determined not to have been reasonable, was subsequently made reasonable. There is no satisfactory evidence of that nor would it seem did the Employer think so since it continued to extend the Grievor’s surplus status and layoff date and it’s letter of January 23, 1996 speaks to a layoff
15 unless the Grievor is offered a position by the layoff date.
On December 24, 1996, the Grievor did receive a reasonable job offer which he accepted. He subsequently failed to report for duty which I consider to be a refusal of the reasonable job offer. I observe that, in his letter dated February 24, 1997, Mr. Davy characterized the Grievor’s failure to report for duty as the refusal of a “reasonable job offer”.
The purported layoff by the Employer on February 23, 1996 was invalid. The Grievor was entitled to an extension of his surplus status until “at least one such [reasonable job] offer has been made” (Article 1.1.14 WFAD). That did not occur until December 24, 1996. Thus, the Grievor’s surplus period should have been extended to February 17, 1997 which was the date upon which the Grievor should have reported for duty.
In the result, it is declared that: 1. The Employer’s layoff of the Grievor on February 23, 1996 was invalid.
2. The Grievor’s surplus period should have been extended to February 17, 1997, the date on which he was to report for duty.
16 3. The Grievor’s failure to report for duty on February 17, 1997 was a refusal of a reasonable job offer.
4. The Grievor was laid off as at February 17, 1997. 5. The Grievor is entitled to the separation benefit, pursuant to Article 7.3.1 of the WFAD.
I retain jurisdiction to deal with any issues arising out of the implementation of this Award.
DATED at Vancouver, British Columbia, this 12th day of August, 1998.
_________________________ Colin Taylor, Q.C.