FPSLREB Decisions

File: 166-2-28658 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN JANE E. WHYTE Grievor and TREASURY BOARD (Human Resources Development Canada)

Employer

Before: J. Barry Turner, Board Member For the Grievor: Harry Kopyto, Legal Agent For the Employer: Richard Fader, Counsel Heard at Kingston, Ontario, January 13, 1999.

Decision Page 1 DECISION Jane Whyte, a CR-4 classification level, Computer Systems Support Clerk, Human Resources Development Canada (HRDC), Information Technology Systems (ITS), Belleville, Ontario, is grieving the employer’s failure to reclassify her position and also alleges disguised discipline regarding the employer’s decision to terminate her acting assignment to a Computer Systems (CS-1) position in 1997. Her grievance reads: I grieve management’s failure to reclassify my CR-4 position to CS-1 as promised in 1994, and the decision to terminate my acting CS-1 status. I believe these actions are motivated by a disciplinary intent.

Ms. Whyte is requesting the following corrective action: Extension of the Acting CS-1 until action has been taken to reclassify my position to CS-1.

The parties advised me that the only issue they intend to address from the grievance, will be the alleged disguised discipline.

The hearing lasted one day with three witnesses testifying and twenty-seven exhibits submitted into evidence.

Summary of Evidence 1. Jane Whyte was first hired as a data entry operator in Belleville in 1970 as a CR-3; she became a CR-5, was red circled in 1985 to a CR-4 position but maintained pay entitlements as a CR-5 (Exhibit G-2). She first acted as a CS-1 in 1986 (Exhibit G-3). Ms. Whyte identified a Statement of Qualifications – CS-1, Computer Systems Programmer (Exhibit G-4) with attached background that explains why she was chosen for the CS-1 position along with her personal skills, written by Ken Reshnyk, Regional Chief, Computer Systems, Belleville, 1994, and her immediate supervisor in her acting assignment. Exhibit G-4 was prepared as a result of an appeal of Ms. Whyte’s acting assignment to a CS-1 position in January 1994 (Exhibit G-5). She had known Mr. Reshnyk for about 20 years in 1994.

Ms. Whyte testified that she had never been disciplined while in government service; she had never filed a grievance, and up to 1997 when her acting CS-1

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Decision Page 2 assignment was terminated, she had an “excellent personal working relationship with Mr. Reshnyk”.

The grievor said she worked her way up to a CS-1 programmer by taking on new responsibilities and whatever jobs would direct her towards her goal of becoming a CS-1. She took a voluntary course; she learned COBOL language (Common Business Oriented Language) at home, and went to night school at Loyalist College in Belleville for her micro-computer certificate that she received in the early nineties.

Ms. Whyte testified that everyone at her work place knew she had the goal of becoming a CS-1. It is also written on her performance evaluations that were done once every year or so. Her acting assignment as a CS-1 was continually renewed up to September 30, 1997 (Exhibit G-13). She said that acting assignments are not rare, and that Mr. Reshnyk had been acting in his current position for ten years. She and Mr. Reshnyk were friends for many years outside of work. They used to have coffee “twice a day every day” and talk about work, families, sports, etc.

Ms. Whyte was to have gone on an EZSPEC/URSA training course in North Carolina in February 1997. She had a great fear of flying that everyone in the office knew about, including Ken Reshnyk; she agonized over not going on the course for fear of disappointing others, including her working friend, Gail Parker, who said she would hold Ms. Whyte’s hand on the flight. A day or two before she was scheduled to leave, she informed her supervisor, Ken Reshnyk, she could not go. Her $800 ticket had already been purchased, and she was not aware whether the employer purchased cancellation insurance. After looking at alternate travel plans, she chose not to take the bus or the train. Her colleague, Gail Parker, also then chose not to go since she would have been the only person from Belleville on the course. Ms. Whyte testified that Ms. Parker told her she was foolish and was digging a hole for herself by not going on the course. Mr. Reshnyk did not say anything. Her relationship with Mr. Reshnyk then deteriorated quickly, since he had arranged for her to go in the first place. Since February 1997, she has had coffee with Mr. Reshnyk only two or three times; she described her relationship with him now as “nil”. She and Ms. Parker went from “being good friends to not talking”.

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Decision Page 3 While on vacation in July 1997, Ms. Whyte was told by a friend that Gail Parker and Ken Reshnyk were planning to reschedule the EZSPEC/URSA course in August 1997, and that Ms. Whyte might have to fly to it. Ms. Whyte felt stressed again by this, but decided she would go on the course some way other than by air. She then spoke about it with Mr. Reshnyk at the end of July and he said he still had her ticket from February. She told him then that she could not fly. Ms. Whyte then planned to drive to North Carolina with her husband who also works for HRDC, Belleville. She added that when she told Mr. Reshnyk about this plan, he responded: “That’s nice, a paid vacation”. She then received a memorandum from Mr. Reshnyk dated August 13, 1997 (Exhibit G-14), regarding the next EZSPEC/URSA course with her arrangements.

Exhibit G-14 said the course was “a mandatory requirement” for her current position. This made Ms. Whyte feel that if she did not take the course she might lose her acting assignment. She went on the course with three other persons from HRDC, two CS-2’s and a CS-3.

The grievor testified that the big difference between CR work and CS work, is that a CS does coding of programs normally on a daily basis. Ms. Whyte said since taking the EZSPEC/URSA course, she has never used it at all since it was not on her computer and was not on it by October 1997 (Exhibit G-17). She left the ITS on December 22, 1997.

The grievor testified that within a few days of taking the EZSPEC/URSA course, Mr. Reshnyk told her that her acting assignment would not be extended beyond September 30, 1997. She told him that at that moment she did not feel well and she went home. After she returned the next day, Mr. Reshnyk told her there were not enough funds available to continue her acting pay any more, and that the department did not want any more acting assignments. At her salary protected CR-5 level, she earned $33,092; as an acting CS-1, she earned $36,392.

Ms. Whyte testified that she was told there would be a board (a panel review) for her acting assignment. There never was one. She did not compete for another CS-1 position available at the time, since she was a day late to apply when she was told her acting assignment would end. After her acting assignment ceased, she said she did not

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Decision Page 4 really have a change of duties, but she trained Cindy Mumby to do her previous work. She did not know what ever happened to her airline ticket.

Ms. Whyte said she received the notice when her acting assignment would cease on October 14, 1997 (Exhibit G-15). She did not sign it. The grievor identified an E-mail dated November 29, 1997 (Exhibit G-19) from Ada Lee, a new Director in Toronto and Mr. Reshnyk’s boss, that outlined three “Teams for Development” made up of all CS’s. Ms. Whyte was chosen for one team.

Regarding the first level response to this grievance (Exhibit G-20), signed on December 12, 1997 by Ada Lee, that reads in part: “... This assignment should have been terminated at the end of the project ...” Ms. Whyte said the work she started on as an acting CS-1 in 1994 still continued in 1997 and had no finite end. The grievor identified notes prepared for the second and third level of the grievance procedure (Exhibit G-21) by her PIPSC steward, Ron Hugh, as well as the employer’s second level reply (Exhibit G-22), and final level response (Exhibit G-23).

Ms. Whyte identified an E-mail from Dean Miller, Director, F.A.&I.T. dated January 12, 1998 (Exhibit G-25) regarding Staff Announcements all of which were acting assignments, even though her acting assignment was terminated on September 30, 1997. She also identified a request to her from Kate Bradley, Operations, dated January 30, 1998 to “... be a resource person for Cindy Mumby for the first couple of weeks in February” (Exhibit G-26). Ms. Whyte declined. At the time she had relocated from ITS under Ken Reshnyk to ITC, Information Technology Centre, under Dale Ducarme.

Ms. Whyte testified that Mr. Reshnyk told her two other acting assignments from August 1997 in the restructuring were also terminated. However, she spoke to both persons who told her they did not lose their acting assignments.

The grievor had an old job description for her clerical position but none for the CS-1 position to which she had been assigned on an acting basis; she added that Mr. Reshnyk told her not to worry in that she “would be taken care of”. She was not aware of anyone like her ever being removed from an acting assignment for not doing all the duties of the position. In fact she believed the number of acting assignments in her region had increased. Ms. Whyte assumed she was sent on the EZSPEC/URSA

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Decision Page 5 course because she was doing a good job as a CS, and that Ms. Lee selected her for a 'Team for Development' in November 1997 for the same reason.

Ms. Whyte confirmed that Mr. Reshnyk understood her fear of flying and how it affected her; he was the manager most familiar with her work. Before ending her acting assignment, Mr. Reshnyk never told her she was not doing CS work duties; he knew her goal was to become a CS. Ms. Whyte added that Cindy Mumby, a CR-4, and Gail Parker, a CS-2, are now doing what she did as an acting CS-1. The grievor reiterated that, when she left her acting assignment, her programming work did not change. She felt a decision to end an acting assignment would come from one’s immediate supervisor.

During cross-examination, Ms. Whyte said that she had seen her CR job description and that Exhibit G-4, Statement of Qualifications – CS-1, Computer Systems Programmer, was not an official job description. She felt Exhibit G-4 had been written in good faith. She added she was never told the termination of her acting assignment was done for disciplinary reasons; Mr. Reshnyk was the one who told her about the termination, and it took place seven months after her not going on the training course in February 1997. Ms. Whyte said that part of the duties of her acting assignment was programming and she did coding, key entry 3, and COBOL programming, the more complex job. As an acting CS-1, she was promised her job description would be rewritten.

Ms. Whyte said when asked if Mr. Reshnyk was abusive or sarcastic when he made the comment about a 'paid vacation', she responded: “Sarcastic”.

She reconfirmed that she relocated to the ITC in December 1997 as a CR-5; she is still there, and another woman and Dale Ducarme were also told they would lose acting pay but are still in the department. She agreed that an acting assignment normally ends when the work disappears.

During re-examination, Ms. Whyte said in her case, her work did not disappear. She also said she knew Ken Reshnyk well enough to know that his 'paid vacation' comment was certainly sarcastic.

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Decision Page 6 2. Mr. Reshnyk has been an acting Chief for 14 years; he was the immediate supervisor of the grievor while she was an acting CS-1, and the manager who decided to assign her to this position. He said her duties changed during the acting assignment hereby she had to convert an old software program to a new one to generate programs for data entry. He believed the big conversion project ended in the fall of 1995, and was not ongoing in September 1997. By then, the volume of work was much less even though some duties remained. Mr. Reshnyk agreed that as an acting CS-1, Ms. Whyte did key entry software work with EZSPEC/URSA and COBOL software, but did not write programs. She only modified them on an ad hoc basis. He said to do complicated program changes requires computer science training. He added that Ms. Whyte was elevated in 1994 to assist with a high volume of work at the time, but by 1997 the volume had declined considerably.

Mr. Reshnyk testified that, since some staff were no longer doing all their acting duties in 1997, he was asked to reduce the acting pay requirements and Ms. Whyte’s assignment was reduced accordingly. He identified a CS-1 job description (Exhibit E-1), and added there is an overlap between CR-4 duties and CS-1 duties. He said initially Ms. Whyte performed CS-1 conversion work described in Exhibit E-1, but by September 1997 most of her work had been reduced to CR-4 duties since the “massive conversion project had disappeared by then”. After 14 years in this area of work, he has a lot of understanding of the differences between CS-1 and CR-4 work, and was therefore “one hundred percent certain Ms. Whyte was not doing the full duties of a CS-1 in September 1997”.

The witness said he and the grievor discussed the arrangements for her to go on the August 1997 training course.

Mr. Reshnyk testified that he, and all other managers, met with the new Director, Ms. Ada Lee, sometime between the end of the grievor’s course in August 1997 and before the end of her acting period, to review who were on acting assignments in Belleville, and whether or not these persons were doing the full range of acting duties in order to determine who would stay on and who would not.

When asked why he did not terminate the grievor’s acting assignment in the fall of 1995 when the massive conversion project ended, Mr. Reshnyk said: “It was my

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Decision Page 7 mistake to have let the acting pay continue, and I was leaving it pending a reorganization that did not happen until Ada Lee met with managers in 1997. I extended all acting pay periods for the grievor.” He added that ending Ms. Whyte’s acting assignment was not to discipline her for the cancellation of the flight in February 1997 since he had known her for 25 years.

Mr. Reshnyk said: “There was some discomfort between Ms. Whyte and me after she did not take the course in February, but I did not really notice a change in our relationship until her acting pay stopped. Jane was very upset.” Mr. Reshnyk could not recall going for coffee with her after the acting pay period ended.

During cross-examination, Mr. Reshnyk could not say on what exact date the decision was made to end Ms. Whyte’s acting assignment, but it was probably sometime in September 1997, after his August holidays and after her EZSPEC/URSA course in North Carolina. He added that the meeting with Ms. Lee to discuss reducing acting pay situations was sometime from mid-July to the end of September. He said that over a few weeks he reviewed four or five acting assignments and two were changed. He added it was possible he could have decided to remove Ms. Whyte before his August 1997 vacation. Mr. Reshnyk said that between February and August 1997, he and Ms. Whyte still had coffee sometimes. He added: “Jane is a loving person, a personal friend, and even though we are not communicating now, I have known her for many years.” Mr. Reshnyk did not know why the grievor felt she had been disciplined by the ending of her acting assignment.

Regarding Exhibit G-4, the Statement of Qualifications – CS-1, Computer Systems Programmer, Mr. Reshnyk admitted he prepared it, but now does not agree with the educational requirements in it, but agrees with the rest of it. He said Exhibit G-4 relates to Ms. Whyte’s assignment on an acting basis to the CS-1 position, and that it was right to give it to her. The witness said the grievor was sent on the training course to learn how to use a replacement software program. He added it was his mistake not to have terminated her acting assignment in 1995 when he should have, possibly because she was a good worker and a good friend. Mr. Reshnyk admitted he was aware of Ms. Whyte’s fear of flying, but not the extent of her fear. He did not recall saying to Ms. Whyte that Gail Parker would hold her hand on the plane, but if he did say this, it would have been to be helpful.

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Decision Page 8 The witness said the airline ticket bought for the grievor in February 1997 was never used, and he did not know if anyone was ever questioned on it. He added he did not hope Ms. Whyte would have used it in August 1997.

Mr. Reshnyk testified that he discussed the ending of the grievor’s acting assignment during the grievance process with Ron Hugh, her union steward, when they tried to resolve the matter. He could not recall what he told Mr. Hugh. The witness said: “If someone is doing a substantial portion of a job description, he or she should stay in that job, but in Ms. Whyte’s case, the volume of the massive conversion exercise ended in 1995.” Mr. Reshnyk said when he and Ms. Whyte discussed the fact that she was not doing all the duties of a CS-1, she became upset and they had a short meeting. Mr. Reshnyk said that the EZSPEC/URSA program is not used much now. He did not know when it was installed. He said other CR’s in Ontario had not been required to take the EZSPEC/URSA training course. He agreed Ms. Whyte knew her job best.

The witness did not know if anyone would have said anything to him if Ms. Whyte had not been removed, but he added, all positions had to be looked at and it was his decision to remove her. He said an acting assignment can end if: (1) a priority transfer arrives; (2) the work disappears; (3) the incumbent of the position returns to the job. Mr. Reshnyk said as far as he could recall, five or six acting assignments ended because of lack of work in Belleville; he then added it is probably in the hundreds overall. All jobs in Belleville are now undergoing a classification review and that includes Ms. Whyte’s.

Mr. Reshnyk could not say for sure if 15 of 23 CS positions in the Ontario Region are acting assignments, or if 12 of 27 CS positions at national headquarters are also acting, but he said management has made a serious effort to remove acting assignments, and some are being reclassified. As far as he knew, only one other CR had done programming like Ms. Whyte. Gail Parker’s acting CS-3 assignment went back to a CS-2 when he took over some of her responsibilities. Mr. Reshnyk knows the grievor’s husband who also works for HRDC in Belleville, and he discussed how to resolve the grievance with him as well as Ron Hugh.

During re-examination, when asked what test was applied to end the grievor’s acting assignment, Mr. Reshnyk said he looked at all aspects of her acting job to

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Decision Page 9 determine what she did and what she did not do, especially since he felt he knew her job well. The witness added he wrote Exhibit G-4, the Statement of Qualifications – CS-1, Computer Systems Programmer, to support acting pay for Ms. Whyte; he said that Exhibit G-4 did not replace her own job description.

3. Ron Hugh, a 14 year PIPSC steward at HRDC Belleville, who has known the grievor for 19 years at the Belleville office, was called by Mr. Kopyto in reply. He said during all these years, he has observed Ms. Whyte’s and Mr. Reshnyk’s working relationship and they had a long standing friendship. After February 1997, he noticed Ms. Whyte going for breaks with someone else other than Ken Reshnyk or Gail Parker; therefore he asked Steve Whyte, the grievor’s husband, what happened.

Mr. Hugh is on the PIPSC’s CS negotiating committee and, after surveying the 50 CS’ in his building, he discovered of the 23 assigned to Ontario, 15 are acting, and of the 27 assigned to the national office, 12 are acting. He also did not believe the EZSPEC/URSA program had yet been put onto the Belleville computers. He added that it is not a CR duty to do programming or to maintain programs, but someone does this to advance himself or herself. Mr. Hugh testified that “rarely do CS’s lose acting positions especially leading up to the Y2K. We can not get enough of them.” He said they have recently changed the staffing requirements to hire CS’s outside of the Public Service Commission. Mr. Hugh had never experienced the termination of an acting assignment the way Ms. Whyte was terminated.

During cross-examination, Mr. Hugh said there is a shortage of CS’s now and his understanding of the basic requirements to become one is any student who qualifies is eligible. When asked if it became more obvious there was a problem between the grievor and Mr. Reshnyk after her acting pay ended, Mr. Hugh said that since the grievor’s husband works beside him, and Mr. Hugh saw there was a problem in February 1997, he asked Mr. Whyte then what went wrong.

Argument for the Grievor Mr. Kopyto argued that Ms. Whyte, was an employee with 27 years service, no disciplinary record and good performance reviews; she was a good person and was not a disgruntled employee; she was red-circled as a CR-4 in 1985; she performed as a CS-1 often and took courses to improve her skills that made her more advanced than the

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Decision Page 10 average CR; she was routinely re-appointed as an acting CS-1 from 1994 to 1997 to do lots of programming, and was suddenly told she would no longer be allowed to act as a CS-1.

In February 1997 everyone, including her supervisor Ken Reshnyk, knew she had a great fear of flying; therefore she decided not to go on a training course in North Carolina, even though a colleague, Gail Parker, was prepared to hold her hand on the plane. Mr. Kopyto argued that, after her decision not to go on the course, her long time personal relationship with supervisor Ken Reshnyk disappeared. Mr. Kopyto argued that I can therefore find strong evidence to taint Mr. Reshnyk’s notice to end her acting pay months later. He also argued Ms. Whyte was made to feel she let others down when Gail Parker told her she foolish and was digging a hole for herself.