Flynn and Treasury Board (National Defence)

Full Text

166-2-29015
Flynn and Treasury Board (National Defence)

Before: J. Potter
Appearances: J. Bart, for the Grievor; C. Bidal, for the Employer
Decision rendered: November 23, 1999

Position declared surplus – Early departure incentive (EDI) – Resignation – Jurisdiction – Whether disguised discipline – the grievor was a computer systems manager – his previous supervisor had told him that his position would not be affected by the department's restructuring – a new supervisor arrived six months afterwards – following complaints from the grievor's subordinates, his new supervisor suspended him, then reassigned him pending investigation – as a result of the investigation, the grievor received a written reprimand and was to receive training in managerial, supervisory and communications skills – three days later, the grievor was informed that his position would be declared surplus and that he would be on paid surplus status for a six-month period, followed by twelve months of unpaid surplus status – the grievor was also offered an EDI – no reasonable job offer was made to the grievor and he eventually opted for the EDI and resigned – the grievor alleged that the termination of his employment was disguised discipline – the employer objected to the adjudicator's jurisdiction to hear the case – it argued that the grievor had not shown that the termination of his employment was the result of anything other than his resignation – the employer added that it had no disciplinary motive for accepting the grievor's resignation – the employer submitted, in the alternative, that the termination of the grievor's employment was a layoff pursuant to the Public Service Employment Act – the grievor argued that the employer decided to declare his position surplus as a result of the complaints made against him – he added that the employer had not presented him with any reasonable job offer before he opted for EDI and that he did so only not to be forced into unpaid surplus status – the adjudicator stated that his jurisdiction to hear the grievance depended on whether the grievor's resignation amounted to disguised discipline – the adjudicator found that the evidence did not establish, on a balance of probabilities, that the employer's actions were anything other than administrative decisions dealing with a well-known downsizing exercise – the adjudicator declined jurisdiction to hear the grievance.

Grievance denied.

Cases cited: McIlroy (166-2-12359); Arsenault (166-2-23957).