FPSLREB Decisions
Decision Information
Work Force Adjustment Directive - Surplus status - Relocation - Definition - the grievor, a research scientist in Saskatoon, was assigned temporarily to a five-year project in Regina - the assignment agreement provided that the grievor's assignment to Regina would become permanent at the end of the five years - during the project, the grievor was declared a surplus employee pursuant to the Work Force Adjustment Directive, and was offered different options - he chose to take the Early Departure Incentive (EDI), and resigned accordingly - he then asked the employer to relocate him to Vancouver Island, and offered to pay the costs supplemental to a relocation to Saskatoon - the employer denied the request, on the basis that the grievor was not entitled to a relocation, as he was not moving to a new place of duty - the grievor argued that it was unreasonable for the employer to have sent him to work in Regina, declare him a surplus employee and then just leave him there, without help - the employer replied that employees are entitled to relocation benefits when they move from one place of duty to another and that, as the grievor had retired, he was not moving to a new place of duty - moreover, the employer reminded the adjudicator that the assignment agreement provided for the grievor's permanent assignment to Regina at the end of the project - the adjudicator found that the grievor's decision to accept the EDI deprived him of any entitlement to a relocation he could have had, had he opted for a six-month job protection with priority rights for appointment to another position in the public service - the adjudicator concluded that the grievor's move to Vancouver Island was not the result of his going to a new place of duty. Grievance denied.
Decision Content
File: 166-2-28334 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN WILLIAM F. WARWICK Grievor and TREASURY BOARD (Environment Canada)
Employer
Before: Ken Norman, Board Member For the Grievor: Evan M. Heidinger, Professional Institute of the Public Service of Canada
For the Employer: Ronald M. Snyder, Counsel
Heard at Regina, Saskatchewan, May 20, 1998
Decision Page 1 DECISION The question raised by this grievance is that of entitlement to a relocation allowance. The issue was argued on an agreed statement of facts, with attached exhibits. The material facts are as follows.
Dr. Bill Warwick was a research scientist (SE-RES-02) at the National Hydrology Research Institute, of Environment Canada, in Saskatoon. (NHRI) In November of 1993, he was assigned to the Water Quality Branch, Inland Waters Directorate, Conservation & Protection in Regina. The document accomplishing this move took the form of a five-year temporary assignment. But, in paragraph 4 of the assignment agreement, the parties note that they anticipate that, upon satisfactory completion of the five years, Dr. Warwick would transfer permanently to Regina.
On October 4, 1996, Dr. Warwick learned officially of something which he had received notice of in March of 1995. As a consequence of a program review process triggered by the Federal Budget, he had been told that there was downsizing to be done which might affect him. As part of phase 3 of this exercise, Dr. Warwick finally received a letter from R.W. Slater, Assistant Deputy Minister, Environmental Conservation Service, that his position would become surplus to requirements as of the following day. As a consequence, he would remain on salary for six months. This letter presented a number of options: - The Early Retirement Incentive (ERI) - The Early Departure Incentive (EDI) - Lump Sum Payments under the Workforce Adjustment Directive (WFAD) (where applicable)
- Priority rights for job placement within the Public Service
On November 25, 1996, Dr. Warwick opted for an EDI pay-out and resigned as of January 3, 1997.
The issue for adjudication was presented to the Employer by a letter of October 3, 1996 from Dr. Warwick. He wrote this letter a week after being advised that his position was "affected" in the phase 3 downsizing process and that a surplus letter might be issued at any time. With this information in hand, Dr. Warwick wrote to W.D. Gummer of the Ecological Research Division, Regina, stating that pursuant to
Public Service Staff Relations Board
Decision Page 2 the assignment agreement, the Employer was required to return him to NHRI (Saskatoon) when his assignment was terminated. He further indicated that upon termination of his assignment, he was intending to relocate to Vancouver Island. Therefore, he was prepared to pay the difference between relocation to Saskatoon and any higher costs associated with relocation to the Island. By letter of October 24, R.A. Halliday, Director of NHRI, replied that, as there was no requirement for him to "return to duty" in Saskatoon, there was no entitlement to a relocation allowance.
With that, a grievance was filed. This grievance came before the Travel Committee and the Executive Committee of the National Joint Council of the Public Service of Canada. Both of these joint committees expressed the opinion that a relocation allowance was not due to Dr. Warwick as his situation did not entail "a relocation from one place of duty to another."
Arguments Both parties agreed on two points. First, the Treasury Board Relocation Directive does not address the issue of positions being declared surplus to requirements. Second, the interpretive issue before me is simple and depends only on a plain reading of that document. Mr. Heidinger's primary contention was that it is unreasonable to allow the silence in the Relocation Directive to produce the result that the Employer could send an employee to another location on temporary assignment, declare him surplus to requirements and then just leave him there without helping him to return home with his household goods. To dramatize this point, Mr. Heidinger invited me to consider the hypothetical of a member of the foreign service having all of his or her household goods in a remote land in the aftermath of a surplus declaration. And, though Mr. Heidinger based his argument on the collective agreement, he did note that the assignment agreement contemplated a relocation allowance for return to Saskatoon on its termination.
Mr. Snyder submitted that the answer to the interpretive question posed by this grievance is to be found in the definitions of "relocation" and "place of duty" in the Relocation Directive.
Public Service Staff Relations Board
Decision Page 3 Relocation means the authorized move of an employee from one place of duty to another ...
Place of duty means the location of the official station or headquarters ... to which an appointee is required to report for duty ...
Given the EDI option taken up by Dr. Warwick, there was no "place of duty" for him to report to on the termination of his assignment in Regina. As for the assignment agreement, two points were made. First, it was subject to the Relocation Directive. Second, it was intended not to be temporary. The parties anticipate in the text of the agreement that the assignment will mature into a permanent situation for Dr. Warwick in Regina. Finally, and in the alternative, Mr. Snyder contended that sustaining the grievance could not deliver to Dr. Warwick what he wanted as relocation allowances are based on actual expenditures. Therefore, the grievor would have to move to Saskatoon, rather than to Vancouver Island in order to be able to lodge a valid claim.
Decision I am persuaded that the definition section of the Relocation Directive is what must be my guide rather than the Directive's silence on the issue of surplus declarations. The reason for this is that, on the facts before me, there is no vacuum. Dr. Warwick's choice to take the EDI and head for Vancouver Island left him in a different position than the one raised in Mr. Heidinger's powerful hypothetical. This course, as chosen by him, means that he was not abandoned, with his household goods, in Regina by his Employer's decision to declare his position in Saskatoon surplus to requirements. Rather, he was presented with several options, one of which was to choose "Priority rights for job placement within the Public Service". Had he taken this course, then he would have a "place of duty" to which eventually he may have been authorized to move. And, as a consequence, he would then have every right to a relocation allowance.
Public Service Staff Relations Board
Decision Page 4 For this reason, I agree with the interpretation of the Travel and Executive Committees of the National Joint Council of the Public Service of Canada that Dr. Warwick was treated properly under the Relocation Directive as his choice to accept the EDI and move to Vancouver Island did not involve a relocation from one "place of duty" to another. Accordingly, this grievance is dismissed. There is no need for me to address any of the other arguments as this point of interpretation and application to the agreed facts is dispositive.
Ken Norman Board Member
SASKATOON, June 2, 1998
Public Service Staff Relations Board