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Know Your Rights - Flawed Training Program Trumps Lay-off

Contributor: Anna Preto A/Regional Representative Prairie/Northwest Territories Region

An individual grievance filed in October 2004 was successfully concluded in January 2009, following a four-year battle including two rounds of adjudication by the Public Service Labour Relations Board and judicial review by the Federal Court of Canada.

The case involved the application of the Employment Transition Appendix (ETA) at a particular Agency. Of note, the ETA is virtually identical to the Work Force Adjustment Directive (WFA) which applies to some federal public service departments.

In September 2003, the member’s position was declared surplus and he received what the employer deemed to be a reasonable job offer subject to the successful completion of a six-month training program devised by the employer.

As the six-months drew to a close, the employer declared that the member had not adequately performed during the last month of the Training Program and was unsuccessful in completing same.

As provided for in the ETA (and the WFA), the member was then declared to be laid off and his employment was terminated. In the subsequent grievance and adjudication, the member maintained that his lay-off was a disguised discharge, that the Training Program had been deficient, and that his lay-off was premature.

In an adjudication decision handed down in February 2007 (some 15 months after the case had been heard) the adjudicator ruled in favour of the Agency. He concluded that there was insufficient evidence to support the allegation that the lay-off was a disguised discipline. He also concluded that the grievor had not established that he had successfully completed the Training Program and, therefore, that the grievor had not established sufficient grounds to warrant reinstatement.

Lastly, the adjudicator refused to examine the adequacy of the Agency’s Training Program citing a lack of jurisdiction: “the adequacy of a retraining program under the ETA was a matter purely within the purview of the employer”.

With this last ruling, in this particular case, the adjudicator surprisingly reversed the onus for termination in determining that the employee was responsible for establishing that the employer did not have sufficient grounds to support the termination. This ruling had serious ramifications for members who might find themselves in a work force adjustment situation and, for that reason, PIPSC supported the grievor in his application to the Federal Court of Canada for judicial review of the adjudicator’s decision.

On February 19, 2008, the Federal Court of Canada allowed the grievor’s application and ordered that the matter be remitted to a different adjudicator for redetermination on the merits. The Court ruled that there was insufficient evidence to pursue the allegation that the lay-off was a disguised discharge. However, the Court made the following important and precedent-setting ruling:

[17] I do not agree that the adequacy of the retraining program created under the transition provisions of this collective agreement was a matter purely within the purview of the Agency and that the only basis for the Adjudicator to look behind that program was to determine whether it was surreptitiously set up to fail.

[18] The Employment Transition provisions of the collective agreement impose significant positive duties on the Agency to provide “reasonable” and “appropriate” retraining with a view to facilitating the continued employment of its surplus employees. Article 1.1.1 of the Employment Transition Appendix requires the Agency to give “every reasonable opportunity” to surplus employees to continue their careers; Article 4.1.1 stipulates that the Agency “shall make every reasonable effort to retrain” its surplus employees; Article 4.1.3 allows for up to two years of retraining; and, finally, Article 4.2.2 imposes upon the Agency the responsibility “for ensuring that an appropriate retraining plan is prepared”.

The Training Program was flawed in that it failed to prepare the grievor for the new work place, which was rife with human resources management and labour relations issues.

[20] I accept that the burden of showing that the employer breached the collective agreement rests upon the affected employee. Nevertheless, the Adjudicator has a responsibility to decide, on the evidence, whether the retraining program was “reasonable” and “appropriate” to permit the employee to meet the expectations for the new position. Such a retraining program is not expected to be perfect but the Adjudicator must assess whether the program was objectively adequate, in the circumstances, to facilitate the reappointment of the surplus employee. In short, when an employer makes specific contractual promises to its employees of the sort made here by the Agency, it does not enjoy an unfettered, unilateral discretion to determine how those promises will be executed.”

[22] In summary, I am satisfied that the Adjudicator erred in law by holding that he was not required to determine whether the Agency breached the collective agreement in the design and implementation of the retraining program ... The employer had a contractual obligation to provide “reasonable” and “appropriate” retraining ... whether it did so has yet to be determined. In the result ... the grievance must be redetermined by a different adjudicator on the merits.”

In November 2008, as directed by the Federal Court, a different adjudicator heard the grievance. At this new hearing, the Institute brought evidence that the Training Program was seriously flawed, both in its design and in its implementation.

We brought key evidence by means of a thorough examination in chief of the grievor and his witness, followed by a vigorous cross examination of the Agency’s witnesses. Our evidence convinced the adjudicator that the Training Program was flawed in that it failed to prepare the grievor for the new work place, which was rife with human resources management and labour relations issues.

We were able to show that these issues had been there, unresolved, long before the grievor arrived. We were also able to show that the Agency took a “sink or swim” attitude towards the grievor during the last month of the Training Program, failing to provide him with training and support during that time.

In a decision delivered in January 2009, the adjudicator ruled in our favour, and ordered the Agency to: (1) reinstate the grievor as a surplus employee and, from there, to apply the provisions of the ETA; and, (2) compensate the grievor for all loss of salary and benefits that he incurred from (the date of his lay-off), to the time of his reinstatement, less what he received from other employment during that period.

This successful outcome is beneficial not only for the grievor individually, but also benefits all PIPSC members because it sets an important precedent. The jurisprudence this case has established is relevant to any member who finds himself the subject of a Training Program under any of the work force adjustment provisions, be they the ETA or the WFA, or some other directive containing similar language.

Comparing the language of the ETA and WFA provisions

  Employment Transition Appendix (ETA) Work Force Adjustment Directive (WFA)
1.1.1 "it is the responsibility of the Agency to ensure" that surplus employees are "given every reasonable opportunity to continue their careers as Agency employees" "it is the responsibility of departments to ensure" that surplus employees are "given every possible opportunity to continue their careers as public service employees"
4.2.2 the Agency is responsible "for ensuring that an appropriate retraining plan is prepared and is agreed to in writing by the surplus employee and the appropriate manager" the home department "is responsible for ensuring that an appropriate retraining plan is prepared and is agreed to in writing by the surplus employee and the delegated officers of the home and appointing departments"
4.1.1 the Agency "shall make every reasonable effort to retrain" its surplus employees departments "shall make every reasonable effort to retrain" its surplus employees

4.1.3
allows for "up to two years of retraining" allows for "up to two years of retraining"

Publish Date: 22-JUN-2009 01:47 PM