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166-34-32035 (2004 PSSRB 172)
Kreway v. Canada Customs and Revenue Agency
Before: J. W. Potter
Appearances: D. Seaboyer, for the Grievor; R. Armstrong, for the Employer
Decision rendered: December 10, 2004
Workforce Adjustment provision - Grievor declared surplus - Reasonable job offer - Whether position grievor sought fell under terms of WFA or whether it constituted a promotion - Salary of position sought marginally superior to salary of grievor's former position - Definition of equivalent - Whether definition applied to present situation - Damages - the grievor's AS-04 position was re-located to another city and reclassified to a higher level - the grievor discussed his interest in a PM-04 Team Leader position and the employer raised no concerns about this or about his qualifications - the grievor was advised that he would be placed in another position without reference to the WFA Appendix as the employer believed it did not apply to the grievor's situation - during this period, a decision in another case regarding application of WFA was issued by PSSRB - the decision indicated that the WFA Appendix did apply - the employer then issued a letter advising the grievor that he did fall under the WFA Appendix - the grievor was informed that there were no vacancies at the AS-04 level -- the grievor was offered a PM-02 position - the grievor accepted but grieved as he felt he should have been offered the PM-04 position - the salary for a PM-04 position is approximately $2000 higher than the salary for AS-04 position - the employer considered it to be a promotion according to the pay rules used by the employer and considered the PM-02 position to be a reasonable job offer - according to definition of "equivalent position" found in the collective agreement, the grievor argued that he should have been offered the position - the employer was found to be in violation of the collective agreement - the employer should have advised the grievor in writing of his right to avail himself of the provisions of the WFA upon relocation of his position - WFA requires offer of "equivalent position - AS-04 position is such a position -- the definition of equivalent in WFA Appendix is found in the provision regarding alternations - the definition nonetheless applies throughout the Appendix - to hold otherwise would mean that different meanings would be attributed to the term "equivalent" within the same Appendix - the employer was ordered to reconstruct situation as it existed at relevant time in order to determine what positions should have been offered to the grievor under the terms of the WFA - damages not appropriate.
Case cited: Dowton, PSSRB File no. 166-2-16026 (1987).