Thank you, Mr. Chair. I understand the question to be: Is there a difference today versus what would be the result if the amendments were passed as to the Minister’s power to direct appoint an employee who’s facing layoff to a position where there is already an incumbent in that position? That power today does exist under the Minister’s authority and will continue to exist with the amendments. Neither today nor after the amendments would the Minister have the ability to remove the present incumbent from the position for which we are essentially double filling, would be the terminology. There are only particular ways that an employer can legally remove an employee from their employment with the public service. The amendments would not allow for the present incumbent to be bumped out, which is the labour term.
Debates of Oct. 31st, 2014
This is page numbers 5107 – 5142 of the Hansard for the 17th Assembly, 5th Session. The original version can be accessed on the Legislative Assembly's website or by contacting the Legislative Assembly Library. The word of the day was public.
Topics
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Macneil
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Bob Bromley Weledeh
Thank you, Mr. Chair, and thanks for that response. I think that sums up my understanding in the area that I needed it.
The second thing I’d like to ask about is I note in the summary of the bill, if I can just quote that starting in the middle: “to permit employees identified for layoff to be placed in vacant positions without disrupting their continuous employment status.” I know the intent here of the Minister – and he must, I’m sure, be in line with that – is to make the appointments into vacant positions. That is what the summary of the bill says. But in fact it does not say that in the legislation. This is a point that’s been raised by my colleague Mr. Dolynny. Why do we state it clearly in the summary but then not clearly in this clause?
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Tom Beaulieu Tu Nedhe
Thank you, Mr. Chairman. The reason that the LP does not speak to vacant versus any position is because the LP is about layoff versus laid off. This is where we are coming forward with that amendment. We are not coming forward to amend other parts of the public service in this LP. The detail on how we can insert “vacant” versus “any” position, I will ask Ms. MacNeil to provide what the steps would be in order for us to bring that LP forward. Thank you.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Macneil
Thank you, Mr. Chairman. I believe the intent of the legislative proposal is to keep the power of the Minister consistent with the power of the present day, of the ability to appoint an employee who is facing layoff to any position in the public service. That position may be vacant; it may not be vacant. There are certainly times where the logical place to place the employee may be a position that currently does have an incumbent, but perhaps that employee is set to retire in four months and we would be double filling that position. There certainly are times where we would want to directly appoint the employee into a position where it is presently occupied; therefore, it would not be vacant.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Bob Bromley Weledeh
Thank you, Mr. Chair. Yes, thank you for that response. I am getting some clarity on it here.
I guess, are there any corralling sidebars with respect to this potential to double fill? To ensure that the example that was used, somebody is about to retire, that would be acceptable, but somebody that was not about to retire and was being forced out without due process, that would be something, I suspect, committee would not appreciate or support. So are there any controls at all on the double filling potential? Thank you.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Macneil
As far as the concern of whether or not the employee who is the incumbent in the
position would be forced out, the controls, of course, would be our labour employment legislation that governs the ability of which an employer can legally remove an employee from their employment. The employer, the GNWT, does not have the ability to force out an employee from their position. There must be cause to remove an employee from the position they currently hold.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Bob Bromley Weledeh
Have there been any cases in the last year or two that the Minister is aware of where we have done this sort of thing, double filling positions?
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Tom Beaulieu Tu Nedhe
Thank you, Mr. Chairman. We may not have all the stats here, but I will just draw on the deputy minister’s knowledge in that area. Ms. Desjardins.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Desjardins
Thank you, Mr. Chair. We would have to review that, but most likely we would be looking at those kinds of placements as well. When we do our succession planning or plan around layoffs, we look at any vacancies or any potential vacancies.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Wendy Bisaro Frame Lake
Thanks, Mr. Chair. I just want to follow up a bit on this same subject. I think Mr. Bromley has covered most of it.
My question here is similar to his and maybe I will try asking it in a different way. My concern is that it has been referenced that GNWT can’t just remove an employee, but where is it written that we can’t do that? What safeguards exist? Where are they that one could go look at them and read them that basically states we can’t just remove somebody or we have to have cause to remove somebody? Because it’s not clear what safeguards are in place to prevent the Minister from parachuting somebody into a job and booting out the incumbent. Thank you.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Macneil
Thank you, Mr. Chair. As far as a place to read the safeguards and guidelines, the difficulty there is that the majority would come from jurisprudence, from case law, from accepted principles of labour and employment law.
So if I could run through a hypothetical scenario that would apply to the vast majority of our employees that are unionized; therefore, the Collective Agreement applies and labour law would apply, which is how we reference the law that applies to unionized work settings. If we follow through with the scenario of we have an employee
identified for layoff, we choose to direct appoint them into a position where there is presently an incumbent and the end results of that would be that the employing department then is dismissing the incumbent and removing them from the workplace.
I can tell you from my experience in labour relations, what would then happen is that employee, who is a member of the union, would go to their union, the union would disagree that it’s a valid termination, they would allege it’s a termination without just cause and file a grievance on behalf of that employee. Then the grievance process kicks in, which is established under the Collective Agreement, where they file the grievance, it goes through the various stages where the employer is required to respond to the grievance. If the parties cannot come to a resolution on their own, the grievance is then referred to arbitration, so it goes before a third party neutral arbitrator, where the labour jurisprudence very much comes into play because that will guide the determination of the arbitrator as to whether or not the employer had just cause to remove the incumbent. Should the arbitrator disagree with the employer’s position and find that we did not have just cause, the more-often-than-not remedy is that that employee is provided the option, as a remedy, to be reinstated to their position in addition to the likelihood of back pay to cover the period of time that they had been removed from their employment without cause.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Alfred Moses Inuvik Boot Lake
Thank you, Mr. Chair. Under this clause, as well, the way it is being worded, there is some concern in terms of the powers that fall onto the Minister here. I guess the first one, it says, “if the Minister is of the opinion that an employee identified for layoff under subsection (1) is suitable for continued employment in the public service, the Minister may appoint the employee without competition to any position...” So the first one is of the opinion. So it is, I guess, the Minister’s opinion, and what constitutes what the Minister believes is right rather than what the resume or somebody’s qualifications are in place? Thank you.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Tom Beaulieu Tu Nedhe
Thank you, Mr. Chairman. There is no change requested in this area. This is not part of our LP that we present here today. The statement that “within the opinion of the Minister, this individual be suitable for another position” is currently in the act. Thank you.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Alfred Moses Inuvik Boot Lake
I guess we can look back at statistics and see what kind of direct appointments might have been done in that sense. It is a concern because we do put a lot of power into the Minister’s
hands in terms of his opinion on who might be able to take another job.
I guess, moving further down in the clause, it does say, “without competition to any position in the public service…” As I stated in my general comments, we have over 5,000 jobs in the GNWT. We also learned over this past summer’s session that some of these positions are left vacant on purpose.
How does the Minister have the authority to appoint an employee who has been identified for layoff with any position within the departments? How does the Minister work with other Ministers to ensure that they can just take that position and move it into any public service position in the public service? Thank you.
Consideration in Committee of the Whole of Bills and Other Matters
Consideration in Committee of the Whole of Bills and Other Matters
Tom Beaulieu Tu Nedhe
Again, although we’re not contemplating any change in this area or asking for a change or bringing an LP forward asking for a change in this area, I will have Ms. MacNeil explain the process to try to provide some comfort to the Members. There is a lengthy process that we go through in order to make these appointments.