June 25, 2014
28.4.619
Background
Due to the work force adjustment exercise, it was determined that the services of the grievor's position were no longer required. Therefore in April, the grievor received a letter officially notifying her of her Opting status and was presented with the three transition Options. The grievor is contesting the Employer's decision to declare her as Opting, claiming violation of article 16 of the collective agreement, a violation of the Canadian Human Rights Act (CHRA), and claiming that the Employer failed in their duty to accommodate her on the basis of family status, as she was to be on maternity leave as of May. The grievor noted that though she would have preferred Option A (12 month surplus priority), she chose Option B (transitory support measure – departure date in March of the next year), as she believed that in choosing Option A, her family status would not be respected and that no accommodations would be made for her to find a new position while she was on maternity leave.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that it was not the issuance of the opting letter that was discriminatory, rather the application of the Work Force Adjustment Directive (WFAD) following the issuance of the letter that was. The Employer should have waited until the grievor had returned from maternity and parental leave to apply the option she would have chosen under the WFAD, Option A – twelve-month surplus priority period. The Employer did not abide by Part I of the WFAD, Roles and Responsibilities, in failing to fulfill its obligations to ensure the grievor was given every opportunity for continuous employment. Further to this, the Employer also violated the grievor's rights under the collective agreement and the CHRA. The decision of the Employer not to delay the application of the option chosen by the grievor until she returned to work following maternity and parental leave is contrary to well established principles in jurisprudence. The representative further noted that though the opting period of 120 days can continue to run concurrently with the grievor's maternity leave, any choice she made should only have become applicable on the day she came back to work after her maternity and parental leave. To apply them otherwise is discrimination based on sex and family status.
The Bargaining Agent representative referred to the TBS Frequently Asked Questions - Work Force Adjustment Agreements, which notes that for parental, maternity or extended sick leave, normally employees should receive written notice at the same time as other affected employees in their area. However to minimize adverse effects on the employees, the decision about whether to provide a guarantee of a reasonable job offer or access to the options will generally be made when they return to work. In light of this, the Employer has not demonstrated or explained why it deviated from the general application of the WFAD in a situation where human rights are applicable, and take precedence over any directive. As the CHRA is recognized as being part of any collective agreement or directive, it must be applied when making decisions affecting the rights of employees and must be followed above and beyond the language of any directive, including the WFAD.
The Bargaining Agent representative continued, noting that the violations under the collective agreement and the CHRA are evident and have been found to be discriminatory in all similar scenarios where the Employer makes an unfettered and blanket application of a directive without any forethought as to its impact on an employee. The refusal to delay the application of the option to the first day back from maternity and parental leave constitutes discrimination, and a refusal by the Employer to accommodate an employee for prohibited grounds specifically recognized by the CHRA. It was further noted that although the NJC By-Law 15 provides that the decision of the Committee must be made only by using the actual WFAD, the representative submitted that the CHRA must find application and cannot be ignored when deciding whether the employee was treated within the intent of the Directive.
Departmental Presentation
The Departmental representative maintained that the Department treated the grievor within the intent of the WFAD in its decision to provide her with the opting letter prior to her departure on maternity and parental leave. The work force adjustment exercise was a department-wide process, and upon a complete assessment of all the positions in the division, it was determined that the functions of the positions were to be discontinued as of March of the next year. As a result, all employees in the division were provided with opting letters in April.
The representative indicated that providing the letter to the grievor was not discriminatory, neither on the basis of family status nor on a disability, as she was provided with the same opportunities as her fellow colleagues in her division. All employees were provided the same letters; more specifically, none of the employees of the division were provided with a guarantee of a reasonable job offer. Providing the grievor the letter in April (48 days prior to the commencement of her maternity and parental leave in May) and at the same time as her colleagues was consistent with the Canadian Human Rights Commission's (CHRC) best practices.
Further to this, the direction from TBS was clear: once the option letter has been issued, there were no mechanisms in the WFAD or WFA Agreements to suspend or extend the 120-day opting period or the 12-month time-limited entitlement. Opting employees have 120 days to decide which of the three options they choose under section 6.3 of the WFAD. Additionally, once the 12-month surplus period begins, it cannot be interrupted or suspended. This information was shared with the grievor via email prior to her decision to opt for Option B – Transition Support Measure (TSM) of a cash payment based on years of service. As employees who choose this option must resign on a departure date specified by management, the grievor's departure date was March of the next year.
Although there is no mechanism to stop or delay an employee's surplus status, had the grievor decided to elect Option A, 12 month surplus status, the Employer would have made every reasonable effort to accommodate her needs, yet she never asked to be accommodated. Furthermore, had the grievor not decided to resign, the department would have kept her aware of, marketed, and referred her to job opportunities that would have become available and she would have been allowed to apply for these opportunities.
Executive Committee Decision
The Executive Committee considered the report of the Work Force Adjustment Committee and noted the impasse. The Executive Committee considered the information and circumstances in this grievance and agreed that in relation to the Work Force Adjustment Directive, the grievor was treated within the intent as she was offered the options as prescribed in Part VI, section 6.3. As such, the grievance is denied.