Docket: T-788-13
Citation:
2014 FC 688
Ottawa, Ontario, July 11, 2014
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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PUBLIC SERVICE ALLIANCE OF CANADA AND PROFESSIONAL INSTITUTE OF
THE PUBLIC SERVICE OF CANADA
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Respondents
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of an Adjudicator appointed pursuant to the Public Service Labour
Relations Act, SC 2003, c 22, s 2 (PSLRA) regarding policy grievances
brought by the Public Service Alliance of Canada (PSAC) and the Professional
Institute of the Public Service of Canada (PIPSC).
Background
[2]
PIPSC and PSAC, as bargaining agents for their
respective bargaining units, each presented policy grievances pursuant to
section 220 of the PSLRA. The grievances related to the manner in which the
Treasury Board applied the Workforce Adjustment Appendix, which forms a part of
the collective agreements between PSAC and the Treasury Board, and the
Workforce Adjustment Agreement, which is incorporated in all collective
agreements between PIPSC and the Treasury Board. The grievances were
consolidated as they raised similar issues and the relevant provisions of the
Workforce Adjustment Appendix and the Workforce Adjustment Agreement
(collectively, the WFAA) were identical.
[3]
Pursuant to section 221 of the PSLRA, the
grievances were referred to adjudication. No witnesses were called and the
grievances proceeded on the basis of oral and written submissions. The
Adjudicator was asked to rule on four questions. Question 1 is the subject of
the application for judicial review.
Decision Under Review
[4]
The decision, dated April 9, 2013 (Decision),
sets out Question 1 as follows:
1.
Is the employer [Treasury Board] required under
the WFAA [collectively, the Workforce Adjustment Appendix and the Workforce
Adjustment Agreement] to establish an alternation system or establish systems
and processes to facilitate alternation opportunities?
[5]
The Adjudicator also set out the relevant
provisions of the Workforce Adjustment Appendix, as representative of the WFAA,
and the positions of the parties.
[6]
In that regard, the Adjudicator stated that PSAC
and PIPSC took the view that sections 1.1.5, 1.1.30 and 6.2.1 of the WFAA gave
rise to an obligation of the Treasury Board, as the employer, to establish an
alternation system and to establish systems and processes to facilitate
alternation opportunities. Section 1.1.5 should be read to include
alternations and section 1.1.30 to include an obligation to facilitate
alternations. Section 6.2.1 required all departments or organizations to
participate in the alternation process. The primary objective of the WFAA was
an attempt to secure continued employment in the federal public service for
affected employees.
[7]
The Adjudicator stated that the Treasury Board
took the position that the WFAA did not create, and that the Treasury Board had
no obligation to establish, an alternation process. The WFAA specified, in
detail, the duties of the different actors, and almost all of the duties were
imposed on employees or departments. There was no role for the employer in the
alternation process. It was not legitimate to rely on the general obligations
of the WFAA to create any obligation in this regard for the employer. As for
section 1.1.5, it simply required departments to “…establish
systems to facilitate redeployment or retraining of their affected employees,
surplus employees, and laid-off persons”, and that it was not legitimate
to interpret “redeployment” as being the equivalent of an alternation.
[8]
The Adjudicator interpreted the issue before
him, in part, to be whether the WFAA required the Treasury Board (or
departments) to establish an alternation system or establish systems and
processes to facilitate alternation opportunities. He did not accept the
submissions of PSAC and PIPSC that sections 1.1.30 or 6.2.1 supported their
position. However, with respect to section 1.1.5, he found as follows:
24. However, section 1.1.5 requires the
establishment of systems that “…facilitate redeployment or retraining
of…affected employees, surplus employees, and laid-off persons.” The word
“redeployment” is not a term used in any pertinent legislation and is not a
term of art (although the word “deployment” is defined in subsection 2(1) of
the Public Service Employment Act, S.C. 2003, c 22, ss 12, 13). The
ordinary dictionary meaning of “redeployment,” in my view, is the assignment
(of troops, employees or resources) to a new place or task: see www.oxforddictionaries.com.
The question I have to address is whether the word “redeployment” could have
been intended to include alternations. I agree with the employer’s submission
that it would be wrong in principle to interpret the word “redeployment” as a
synonym for “alternation.” However, in an alternation, several things are
happening: the opting employee and the alternate find each other; the proposed
alternation is examined by the department; and then the two employees switch
positions, the opting employee moving to the position that is intended to
continue, and the alternate moving to the position that is slated for
elimination. In my view, the word “redeployment”, while not a synonym for
“alternation,” is apt to describe part of an alternation, namely, the process
whereby the two employees switch positions. It must be recalled that the whole
purpose of the WFAA is to address the issue of lay-offs and potential lay-offs
in a workforce adjustment situation, and that this is the context of the
parties’ use of the word “redeployment.” I also note that the systems that
departments are required to establish are those that will facilitate the
redeployment, among others, of “affected employees,” a term that includes
opting employees. I am therefore satisfied that section 1.1.5 applies to the
alternation process.
25. The obligation on the employer in
section 1.1.5 is to “…establish systems to facilitate redeployment…of… affected
employees…” Given the limited arguments I received in relation to Question 1,
I do not intend to spell out in this interim decision the parameters of this
obligation. It is sufficient for me to state that the obligation extends to
the facilitation of opting employees switching positions with alternates.
Issues
[9]
In my view the issues are as follows:
1.
Is the Applicant’s submission a new argument not
advanced before the Adjudicator and, if so, should it be considered on judicial
review?
2.
What is the standard of review?
3.
Was the Adjudicator’s decision reasonable?
Collective
Agreement Terms
[10]
It is of assistance to set out the relevant
provisions of the Workplace Adjustment Agreement, which are identical to the
relevant provisions of the Workplace Adjustment Appendix:
Objectives
It is the policy of the Treasury Board to
maximize employment opportunities for indeterminate employees affected by
workforce adjustment situations, primarily through ensuring that, wherever
possible, alternative employment opportunities are provided to them. This
should not be construed as the continuation of a specific position or job but
rather as continued employment.
[…]
Definitions
Affected employee (employé-e touché) Is an indeterminate employee who has been
informed in writing that his or her services may no longer be required because
of a workforce adjustment situation.
Alternation
(échange de postes) Occurs when an opting employee (not a surplus employee) who
wishes to remain in the Core Public Administration exchanges positions with a
non-affected employee (the alternate) willing to leave the Core Public
Administration with a transition support measure or with an education
allowance.
[…]
Education Allowance (indemnité d’étude) - is one of the options provided to an
indeterminate employee affected by normal workforce adjustment for whom the
deputy head cannot guarantee a reasonable job offer. The Education Allowance is
a cash payment, equal to the Transitional Support Measure (see Annex “B”), plus
a reimbursement of tuition from a recognized learning institution, book and
mandatory equipment costs, up to a maximum of ten thousand dollars ($10,000).
[…]
Opting Employee
(employé-e- optant) is an indeterminate employee whose services will no longer
be required because of a workforce adjustment situation, who has not received a
guarantee of a reasonable job offer from the deputy head and who has one
hundred and twenty (120) days to consider the options in section 6.3 of this
Appendix.
[…]
Surplus employee
(employé-e excédentaire) - is an indeterminate employee who has been formally
declared surplus, in writing, by his or her deputy head.
[…]
Workforce adjustment (réaménagement des effectifs) - is a situation that occurs when a
deputy head decides that the services of one or more indeterminate employees
will no longer be required beyond a specified date because of a lack of work,
the discontinuance of a function, a relocation in which the employee does not
wish to relocate or an alternative delivery initiative.
Part I
Roles and
responsibilities
Departments
or organizations
1.1.1 Since
indeterminate employees who are affected by workforce adjustment situations are
not themselves responsible for such situations, it is the responsibility of
departments or organizations to ensure that they are treated equitably and,
given every reasonable opportunity to continue their careers as public service
employees.
1.1.5
Departments or organizations shall establish systems to facilitate redeployment
or retraining of their affected employees, surplus employees, and laid-off
persons
[…]
Part VI
Options for employees
6.1 General
6.1.1 Deputy
heads will be expected to provide a guarantee of a reasonable job offer for
those affected employees for whom they know or can predict employment
availability. A deputy head who cannot provide such a guarantee shall provide
his or her reasons in writing, if requested by the employee. Affected employees
in receipt of this guarantee would not have access to the choice of options
below.
6.1.2 Employees
who are not in receipt of a guarantee of a reasonable job offer from the deputy
head have one hundred and twenty (120) days to consider the three options below
before a decision is required of them.
6.1.3 The opting
employee must choose, in writing, one (1) of the three (3) options of section
6.3 of this Appendix within the one hundred and twenty (120) day window. The
employee cannot change options once he or she has made a written choice.
6.1.4 If the
employee fails to select an option, the employee will be deemed to have
selected Option (a), twelve (12) month surplus priority period in which to
secure a reasonable job offer, at the end of the one hundred and twenty (120)
day window.
[…]
6.2 Alternation
6.2.1 All
departments or organizations must participate in the alternation process.
6.2.2 An
alternation occurs when an opting employee who wishes to remain in the Core
Public Administration exchanges positions with a non-affected employee (the
alternate) willing to leave the Core Public Administration under the terms of
Part VI of this Appendix.
6.2.3 Only an
opting employee, not a surplus one, may alternate into an indeterminate
position that remains in the Core Public Administration.
[….]
6.3 Options
6.3.1 Only
opting employees who are not in receipt of the guarantee of a reasonable job
offer from the deputy head will have access to the choice of options below:
(a)
(i) Twelve (12) month surplus
priority period in which to secure are reasonable job offer: should a
reasonable job offer not be made within a period of twelve (12) months, the
employee will be laid off in accordance with the Public Service Employment Act.
Employees who choose or are deemed to have chosen this Option are surplus
employees.
(ii) At the request of the
employee, this twelve (12) month surplus priority period shall be extended by
the unused portion of the one hundred and twenty (120) day opting period referred
to in 6.1.2 which remains once the employee has selected in writing Option (a).
(iii) When a surplus employee who
has chosen, or who is deemed to have chosen, Option (a) offers to resign before
the end of the twelve (12) month surplus priority period, the deputy head may
authorise a lump-sum payment equal to the surplus employee’s pay for the
substantive position for the balance of the surplus period, up to a maximum of
six (6) months. The amount of the lump sum payment for the pay in lieu cannot
exceed the maximum of that which he or she would have received had they chosen
Option (b), the Transition Support Measure.
(iv) Departments or organizations
will make every reasonable effort to market a surplus employee during the
employee’s surplus period within his or her preferred area of mobility
or
(b) Transition Support Measure (TSM) is
a cash payment, based on the employee’s years of service in the public service
(see Annex “B”) made to an opting employee. Employees choosing this Option must
resign but will be considered to be laid-off for purposes of severance pay.
or
**
(c) Education allowance is a
Transitional Support Measure (see Option (b) above) plus an amount of not more
than ten thousand dollars ($10,000) for reimbursement of receipted expenses of
an opting employee for tuition from a learning institution and costs of books
and mandatory equipment.
Employees choosing Option (c) could either:
[….]
Submissions and Analysis
Issue 1 - Is the Applicant’s submission a new argument not
advanced before the Adjudicator and, if so, should it be considered on judicial
review?
Respondents’ Position
[11]
The Respondents submit that the sole issue
raised by the application for judicial review could have been, but was not
raised before the Adjudicator. Accordingly, the Court should not exercise its
discretion so as to now consider this new issue (Alberta (Information and Privacy Commissioner) v Alberta Teacher’s Association, 2011 SCC 61, [2011] 3
SCR 654 at paras 22-23 [Alberta Teachers]; Kainth v Canada (Minister
of Citizenship and Immigration), 2009 FC 100 at para 26 [Kainth]; Bekker
v Canada, 2004 FCA 186 at para 11 [Bekker]; Toussaint v Canada
(Labour Relations Board), [1993] FCJ No 616 at para 5 (CA) [Toussaint]).
[12]
The Respondents submit that the issue raised by
the Applicant is that the term “affected employees” cannot be interpreted to
include opting employees and, therefore, opting employees do not fall within
the scope of section 1.1.5 of the WFAA. However, that none of the Applicant’s
arguments in this respect were made before the Adjudicator. Further, the
Respondents’ written adjudication submissions clearly relied on section 1.1.5
and argued that the provision must be read as including alternating employees.
As an alternation by definition includes opting employees this should have
alerted the Applicant to the issue of whether affected employees include opting
employees and caused them to raise it before the Adjudicator. Additionally,
the Applicant made responding arguments concerning the applicability of section
1.1.5 which disputed the relevance of that provision on the basis that
“redeployment” did not include the concept of alternation, but this was not on
the basis that “opting employees” did not fit within any of the groups of
employees listed in section 1.1.5.
Applicant’s Position
[13]
The Applicant made no written submissions on
this point. However, when appearing before me submitted that the issue of
whether the term affected employees includes opting employees arose from the
Adjudicator’s reasons, it was not dealt with at the hearing. In such
circumstances, the Applicant cannot be expected to speculate on what the
Adjudicator’s reasons may include and raise these as issues at the hearing.
These circumstances are distinguished from Bekker, above, which
concerned the raising of a Charter argument for the first time and without
notice at judicial review; Kainth, above, which concerned the
admissibility of new evidence on judicial review; and, Toussaint, above,
which concerned the dismissal of a complaint by an employee alleging that a
union had failed in its duty of fair representation. There, an argument was
advanced that a relevant provision of the subject collective agreement was
invalid which had not been argued before the Labour Relations Board. The Court
held that it could not decide a question which had not been raised before the
administrative tribunal.
[14]
The Applicant also submitted that while the
PSAC’s written arbitration submission addressed section 1.1.5, it did not
address the question of whether the term affected employees includes opting
employees. Further, the Applicant’s submissions directly addressed the
Respondents’ submissions in that they asserted that section 1.1.5 makes no
mention of alternations. In any event, the interpretation of section 1.1.5 is
not a new issue.
Analysis
[15]
The Court has the discretion not to consider an
issue for the first time on judicial review where it would be inappropriate to
do so. Generally, this discretion will not be exercised in favour of an
applicant on judicial review where the issue could have been, but was not,
raised before the tribunal (Alberta Teachers, above, at paras 22-23).
[16]
The Court in Alberta Teachers noted that
there are a number of rationales justifying this general rule. These include
that the legislature has entrusted the determination of the issue to the
administrative tribunal. Accordingly, Courts should respect the legislative
choice of the tribunal as the first instance decision-maker by providing the
tribunal with an opportunity to address and treat the issue first and to make
its views known. This is particularly true where the issue raised for the
first time on judicial review relates to the tribunal’s specialized function or
expertise. In such circumstances, the Court should be careful not to overlook
the loss of the benefit of the tribunals’ views inherent in allowing the issue
to be raised. Further, the raising of an issue for the first time on judicial
review may unfairly prejudice the opposing party and may deny the Court the
adequate evidentiary record required to consider the issue (Alberta Teachers,
above, at paras 24, 26).
[17]
However, in Alberta Teachers, the Court
ultimately concluded that the rationale for the rule had limited application in
that case. There, the Commissioner had expressed his views in several other
decisions and, therefore, had the opportunity to decide the issue in first
instance providing the benefit of his expertise. Further, no evidence was
required to consider the issue and no prejudice was alleged. Rather, it was a
straightforward determination of the law, the basis of which could be
considered on judicial review.
[18]
In this matter, the record indicates that in its
written submissions to the Adjudicator, PSAC relied on section 1.1.5 (and
1.1.30 and 6.2.1) of the WFAA to support its position that the Treasury Board
was required to establish an alternation system or establish systems and
processes to facilitate alternation opportunities. As regards to section
1.1.5, PSAC submitted:
PSAC maintains that this provision must be read
as including alternating employees. First, while 1.1.5 is a provision that
relates to all workforce adjustment situations, there is nothing in the WFAA
that suggests the provision should be limited so as to not include alternation.
PSAC further submits that, as “redeployment” is not defined in the WFAA or the
collective agreement generally, the definition of “deployment” from the Public
Service Employment Act…should inform the interpretation of 1.1.5.
“Deployment” is defined in the PSEA as “the transfer of a person from
one position to another.” This broad definition clearly encompasses alternation
and therefore 1.1.5 should be read as including alternation.
[19]
The Applicant’s written submissions to the
Adjudicator argued that if the parties had intended to impose an obligation on
the Treasury Board to establish an alternation system or establish systems and
processes to facilitate alternation opportunities, it would have indicated this
expressly and in detail. However, the WFAA is silent on these obligations and
reading them in by way of reference to general provisions would be a
significant departure from the parties’ intentions. With respect to section
1.1.5, the Applicant submitted that it only concerns systems to facilitate redeployment
or retraining and does not mention a system for alternations.
[20]
In the present application, the Applicant argues
that the Adjudicator linked the requirement in section 1.1.5 to the alternation
process by reading “opting employees” into “affected employees”. However, an
“opting employee” is neither an affected employee, a surplus employee nor a
laid off employee, all three of which terms are defined in the WFAA provisions
separately from the definition of opting employees. The term “affected employees”
cannot be interpreted to include opting employees and, therefore, the latter
does not fall within section 1.1.5.
[21]
Ultimately, the Adjudicator found that the term
“redeployment”, as found in the context of section 1.1.5, described a part of
the alternation process. He then went on to note that the systems that
departments are required to establish are those that will facilitate
redeployment, amongst others, of affected employees – a term that he stated
included opting employees. For both of these reasons, the Adjudicator was
satisfied that section 1.1.5 applies to the alternation process.
[22]
In my view, it was open to the Applicant to have
argued before the Adjudicator, as regards to section 1.1.5, that the term
“affected employee” does not include an “opting employee”. However, on review
of the record, it appears that this was not the focus of the parties at the
adjudication, rather that this question arose from the Adjudicator’s reasons.
Further, because the parties both addressed section 1.1.5 at the adjudication,
what the Applicant now raises is not so much a new issue but one which is
related to the central focus of their submissions, being whether or not section
1.1.5 included alternations.
[23]
Additionally, as in Alberta Teachers,
here the rationales for the rule against permitting new issues to be addressed
at judicial review may have limited application. In this case, the Court has
the benefit of the Adjudicator’s view on this issue of the interpretation of
section 1.1.5. While his reasons on the point are limited, his contextual
approach in interpreting the provisions of the WFFA is sufficient to explain
his finding. Further, there is no allegation that permitting the argument to
proceed would prejudice the Respondents. And, finally, there are also no
concerns about a further evidentiary record to support this argument given that
at the adjudication no witnesses were called and the matter was before the
Adjudicator on the basis of written and oral submissions only.
[24]
Accordingly, the application may proceed.
Issue 2 - What is the standard of review?
Applicant’s Submissions
[25]
The Applicant submits that the standard of
review for a decision of the Public Service Labour Relations Board and its adjudicator
in interpreting and applying the provisions of a collective agreement has
previously been determined to be reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paras 57, 62 [Dunsmuir]; Attorney
General of Canada v Bearss, 2010 FC 299 at para 23 [Bearss]; Attorney
General of Canada v Bucholtz et al, 2011 FC 1259 at paras 36-38 [Bucholtz]).
[26]
A decision of an adjudicator or arbitrator will
be found to be unreasonable where they have ignored the plain and ordinary
meaning of a term of a collective agreement (Canada (Attorney General) v
Lamothe, 2009 FCA 2 at para 13; Newfoundland and Labrador Nurses' Union
v Newfoundland and Labrador (Treasury Board), 2009 NLCA 60 at paras 20, 22,
leave to appeal to SCC refused in [2009] SCCA No 544 [Newfoundland and
Labrador Nurses]) or they have interpreted a collective agreement in a
manner that produces an absurdity (Saint John (City) v Saint John
Firefighters’ Assn, 2011 NBCA 31 at paras 41, 45).
Respondents’ Submissions
[27]
The Respondents agree that the standard of
review in this matter is reasonableness (Bucholtz, and Bearss,
both above). In Bearss, the Court found that while the employer’s
proposed interpretation of the collective agreement would have been reasonably
open to the adjudicator, the Court had no basis to interfere with his decision
as the interpretation he adopted was also reasonably open to him. It is
insufficient for a Court to conclude that another interpretation would have
been reasonable, or that it would have reached a different result. The Court
could only set aside the adjudicator’s decision if it fell outside the range of
possible, acceptable outcomes in light of the facts and the law.
Analysis
[28]
An exhaustive analysis is not required in every
case to determine the proper standard of review. Courts must first ascertain
whether jurisprudence has already determined in a satisfactory manner the
degree of deference to be accorded to a decision-maker with regard to a
particular category of question (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 53 [Khosa];
Dunsmuir, above, at paras 57, 62). If so, then that standard of review
may be adopted.
[29]
I agree with the parties that the Adjudicator’s Decision
in interpreting and applying the provisions of a collective agreement is
subject to a standard of reasonableness (Bearss, above; Bucholtz,
above; see also Canada (Attorney General) v McManaman, 2013 FC
1064 at para 14).
[30]
In reviewing the Decision on the standard of
reasonableness, the Court should not intervene unless the Adjudicator came to a
conclusion that is not transparent, justifiable and intelligible and within the
range of acceptable outcomes based on the evidence before it (Dunsmuir, above,
at para 47; Khosa, above, at para 59). It is not up to a reviewing
court to substitute its own view of a preferable outcome, nor is it the
function of the reviewing court to reweigh the evidence.
Issue 3 - Was the Adjudicator’s Decision reasonable?
Applicant’s Submissions
[31]
The Applicant submits that the Adjudicator’s Decision
is unreasonable as it ignores the plain and ordinary meaning of defined terms
of the WFAA and because it interprets the WFAA in a manner that produces an
absurdity by extending the scope of section 1.1.5 in a manner not contemplated
or negotiated by the parties.
[32]
The essence of the Applicant’s submissions is
that the parties chose to separately define “affected employee”, “opting
employee” and “surplus employee” in the WFAA. The term “affected employee”
does not include an “opting employee”. As the terms are defined separately and
are mutually exclusive, there was no basis for the Adjudicator to read “opting
employees” into “affected employees” when interpreting section 1.1.5 and,
thereby, extending the reach of that provision.
[33]
The Applicant submits that each of these defined
terms represents a stage along a continuum for employees. An employee begins
as an affected employee whose services may no longer be required because of a
workforce adjustment situation. This can cover a wide group of employees who,
ultimately, may not find themselves in an actual workforce adjustment
situation. When it is determined that an employee’s services are no longer
required, they are no longer an “affected employee” and become either an
“opting employee” or receive a guarantee of a reasonable job offer. At the end
of the 120-day opting period, an employee may move further along the continuum
and become a surplus employee (section 6.3.1(a)(i)). This illustrates that the
parties to the WFAA cast their minds to the issue and choose to separately
define these terms.
[34]
This is not a point requiring the application of
the Adjudicator’s expertise and it is clear that he simply made an error.
Respondents’ Submissions
[35]
The Respondents submit that the Adjudicator’s
interpretation of the term “affected employees” as including opting employees
was reasonable. This interpretation was consistent with the context of the
WFAA and its underlying objective and was reasonably open to the Adjudicator.
The Applicant has not presented any compelling argument that an “affected employee”
cannot reasonably be interpreted to include an “opting employee” and its
interpretation would undermine the overall purpose of the WFAA.
[36]
In essence, the Adjudicator found that once an
employee becomes an opting employee, he or she is still an affected employee
and, therefore, can have both affected and opting status at the same time. The
Adjudicator interpreted opting employees as being a subgroup of affected
employees.
[37]
The Respondents submit that the Applicant has
not presented an interpretive argument supporting its assertion that affected
employees and opting employees are mutually exclusive. The mere fact that they
are separately defined terms does not necessarily mean that they are mutually
exclusive. Therefore, there is nothing inherently unreasonable about the
Adjudicator’s conclusion that “opting employees” constitute a defined subgroup
of “affected employees”.
[38]
The Adjudicator’s interpretation is consistent
with other provisions of the WFAA such as the definition of the “education
allowance”. Since an education allowance is one of the three options available
to opting employees, it implies that for the purposes of the WFAA, opting
employees are still considered to be affected employees. Further, the
interpretation is also consistent with the “Objectives” section of the WFAA.
Therefore, the Applicant’s claim that each employee status represents a
discrete stage along a continuum is inconsistent with the language of the WFAA.
[39]
The Applicant’s interpretation would lead to
absurd results as indicated by section 6.2.2 of the alternation provisions of
the WFAA. This provision only makes sense if the term affected employee
includes opting employees. Further, according to the Applicant’s
interpretation, the employer is obligated to establish systems to facilitate
redeployment or retraining of affected employees, surplus employees, and laid off
persons, but it has no such obligation for opting employees. This is illogical
and undermines the purpose of maximizing employment opportunities for employees
affected by a workforce adjustment. It also frustrates the purpose expressed
in the “Objectives” section of the WFAA.
[40]
The Adjudicator’s finding that “affected
employees” includes opting employees was logical, consistent with the WFAA as a
whole and its underlying purpose and fell within the range of possible
acceptable outcomes.
Analysis
[41]
The WFAA does separately define the terms
“affected employee”, “opting employee” and “surplus employee”, all of which
terms are used in section 1.1.5. The commonality of the three terms is that
they all concern indeterminate employees.
[42]
The Applicant argues that these defined terms
are mutually exclusive and that a continuum applies that precludes an affected
employee from also being an opting employee. However, the continuum described
by the Applicant is not explicit in the WFAA nor is the subcategory
characterization of the Respondents.
[43]
That said, in my view, the provisions of the
WFAA do not entirely support the Applicant’s position. For example, section
6.1.1 requires deputy heads to provide a guarantee of a reasonable job offer
for those “affected employees” for whom they know or can predict employment
availability. It goes on to state that affected employees in receipt of
the guarantee would not have access to the choice of options set out below (in
section 6.3.1). Thus, while the definition of “affected employees” states that
they are indeterminate employees who have been informed that their services
“may” no longer be required because of a workforce adjustment situation, while
“opting employees” are defined as those whose services “will” no longer be
required, section 6.1.1 refers to “affected employees” in reference to
employees who have received a guarantee. Their services will be
required, yet they remain affected employees. This implies that affected
employees not in receipt of the guarantee would have access to the opting
provisions, but also remain affected employees.
[44]
Further, section 6.2.2 of the alternation
provisions of the WFAA states that “[a]n alternation
occurs when an opting employee who wishes to remain in the Core Public
Administration exchanges positions with a non-affected employee (the alternate)
willing to leave the Core Public Administration under the terms of Part VI of
this Appendix”. If, as the Applicant suggests, an affected employee
excludes an opting employee then there would be no need to refer to a
“non-affected” employee. The Applicant’s interpretation would mean that an
opting employee could alternate with another opting employee as it is not an
affected employee. The provision, as written, reflects the intent of the
parties and the alternation process only if the term “affected employee”
includes opting employees.
[45]
Similarly, the WFAA defines an “education
allowance” as “…one of the options provided to an
indeterminate employee affected by normal workforce adjustment for whom the
deputy head cannot guarantee a reasonable job offer…” . The education
allowance uses the term “affected by” yet it is one option available to opting
employees as per section 6.3.1.
[46]
I would also note that where the WFAA intended
to exclude one group of employees in reference to another, it does so
explicitly. For example, the definition of alternation makes it clear that it
occurs when “an opting employee (not a surplus employee)
who wishes to remain in the Core Public Administration exchanges positions with
a non-affected employee”. Section 6.2.3 states that “only an opting employee, not a surplus one, may alternate into
an indeterminate position that remains in the Core Public Administration”.
There are no similar carve outs between affected employees and opting
employees.
[47]
In his reasons, the Adjudicator addresses the
question of whether the word “redeployment” as used in section 1.1.5 could
include alternations. In concluding that a redeployment was apt to describe
part of an alternation but was not synonymous with one, he noted that it must
be recalled that the whole purpose of the WFAA is to address the issue of
lay-offs and potential lay-offs in a workforce adjustment situation and that it
was in that context that the parties to the WFAA used the word “redeployment”.
From there, he found that the systems that departments are required to
establish are those that will facilitate the redeployment, amongst others, of
“affected employees,” “a term that includes opting employees”. He was
therefore satisfied that section 1.1.5 applies to the alternation process. In
my view, while the Adjudicator’s Decision turned on the redeployment issue, he
also considered section 1.1.5 in the context of the purpose of the WFAA as a
whole which is consistent with the principles of collective agreement
interpretation (Ronald M. Snyder, Collective Agreement Arbitration in Canada
(4th ed), (LexisNexis: Canada 2009) at pp 28-31).
[48]
In that regard, the stated objectives of the
WFAA are to maximize employment opportunities for indeterminate employees
“affected by” workforce adjustment situations, primarily through ensuring that,
wherever possible, alternative employment opportunities are provided to them.
Section 1.1.1 states that since indeterminate employees who are “affected by”
workforce adjustment situations are not themselves responsible for such
situations, it is the responsibility of departments or organizations to ensure that
they are treated equitably and, given every reasonable opportunity to continue
their careers as public service employees.
[49]
Given this, and considering the deference owed
to adjudicators in cases of this nature (Bucholtz, above, at para 37; Bearss,
above, at paras 23, 35) and that all employees are in one way or another
“affected by” workplace adjustments regardless of the ultimate outcome in any
given circumstances, the Adjudicator’s interpretation of the term “affected
employees” as including “opting employees” was reasonably open for him to make
and falls within a range of acceptable and possible outcomes (Dunsmuir,
above, at paras 47-48; Newfoundland and Labrador Nurses, above, at para
15).
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