Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Long-time public servant awarded more notice following dismissal Employee had been in position less than two years but held other jobs at federal and provincial levels BY JEFFREY R. SMITH A DISMISSED New Brunswick govern- ment employee who bounced between the provincial and federal civil service is entitled to receive credit for his previous stints of provincial service when calculating his no- tice entitlement, the New Brunswick Public Service Labour Relations Board has ruled. Stephen Smith, 50, began working for what is now the Canada Revenue Agency (CRA) in 1988 providing assistance to tax- payers at a call centre. e job was a sea- sonal one lasting 16 weeks. Two weeks after the end of that job, Smith was hired to be a collections investigation officer for CRA in Saint John, N.B. Smith continued to work full-time for CRA in Ottawa, Charlottetown, and back in Saint John until 2003. at year, he accept- ed a position with the Government House Leader's Office in the New Brunswick leg- islature. is was under the federal inter- change programme, which allowed Smith to keep his employee status, wage rates and benefits as a federal civil servant while work- ing at the provincial level. e federal and provincial civil services agreed to run the programme for a three-year term, allowing Smith to maintain his federal job security. When the programme ended, Smith re- turned to CRA as a senior human resources consultant. Two years later, he worked in the office of the federal regional minister for New Brunswick as a director of regional af- fairs, then returned to CRA in 2009. In 2010, Smith took an approved leave of absence from CRA, during which he worked in a provincial position until June 2014. e provincial position was "at the pleasure" of the premier and he would not have accepted it without the security of his CRA job. In April 2014, Smith was hired to be the executive director of the culture and corpo- rate services divisions in the New Brunswick Department of Tourism, Heritage and Cul- ture. ough it was a permanent position, he remained on leave from CRA. In September, a new government was elected in the province. Smith wasn't in- volved in the election and hadn't been given any reason to worry about his job, but he had heard rumours he might be a target. With his CRA leave coming to an end in November, he told his CRA manager things were "up in the air" and he would know better when the new government assumed power on Oct. 7. Employee resigned from federal position to continue in provincial job On Oct. 15, the CRA manager emailed Smith asking for a decision on his future. Smith felt it was the best option to resign from CRA, and on Oct. 21, Smith emailed the manager say he intended to resign on Nov. 28, based on "verbal information" he had received. He sent a formal resignation letter to CRA on Oct. 30. On Feb. 11, 2015, a new deputy minister for the Department of Tourism, Heritage and Culture took over and Smith was dis- missed. He told not to return to the work- place and his personal possessions would be sent to him. He was given a cheque for six months' pay and benefits in lieu of notice. Smith needed to get his cellphone, so he was allowed to go to his office with an HR official, an experience he found humiliating because he was seen by staff who had report- ed to him. He later filed a claim for additional notice, arguing six months wasn't enough based on his position and service. Smith said his total service as a federal and provincial public servant — 27 years —should be factored into his notice entitle- ment. He also argued he was treated un- fairly in the manner of his dismissal, since he had been assured after the election that his job wasn't in jeopardy. He also said he wasn't given a reasonable explanation for his dismissal. e board agreed that the termination of Smith's employment was unexpected, but there was no indication the Department of Tourism, Heritage and Culture did any- thing particularly malicious in the dismissal. While Smith may have felt humiliated when he was taken back to his desk to get his cell- phone, it was unlikely the staff who saw him saw it as part of his termination. ere was also no evidence Smith suffered from psy- chological stress beyond what would be nor- mal for someone who lost his job — he didn't take advantage of counselling offered by the employer, said the board. e board found it was inappropriate for the department to only factor in Smith's relatively short tenure with it, however. His other two stints as a provincial public servant while on leave from CRA — 2003 to 2006 and 2010 to 2014 — should also be counted, said the board. e board also found similar employment was difficult to find for a 50-year-old civil servant with Smith's experience. ough his previous provincial positions weren't secure, there was no reason to believe his last posi- tion wasn't long-term. Smith's inquiry about his job security following the election was evidence of his expectation to be in the job for a while. And though he "hedged his bets" by remaining on leave with CRA, he and the department intended his employment to be long-term if he did well, said the board. e board determined that 14 months was a more appropriate term of notice with Smith's service and the lack of similar work available. However, the board deducted two months from Smith's entitlement because of his lack of mitigation efforts — he failed to request reference letters or do more than search for jobs on the Internet, even though the provincial government provided a job- search service. As a result, the Department of Tourism, Heritage and Culture was or- dered to pay Smith 12 months' salary and benefits in lieu of notice. For more information see: • Smith and New Brunswick (Department of Tourism, Heritage and Culture), Re, 2015 CarswellNB 382 (N.B. Pub. Service Lab. Rel. Bd.). ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information.

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