Canadian HR Reporter

CANADIAN HR REPORTER December 11, 2017 EMPLOYMENT LAW 5 OSGOODE'S PART-TIME PROFESSIONAL LLM IN LABOUR RELATIONS AND EMPLOYMENT LAW DEVELOP YOUR EXPERTISE Get out from behind your desk and into a rich learning environment that puts you in a room with highly engaged and inspiring peers, including senior HR professionals, exeutives and labour and employment lawyers, who are just as passionate about what they do as you are. Learn more at osgoodepd.ca/hrreporter Start in Fall 2018 Outside Toronto? Distance learning options are available. Manager's assumption of pending retirement leads to age discrimination CBSA worker keen to receive cash incentive by giving downsized employee her job A federal government employee has been awarded $25,000 for age discrimination after she was denied a chance to take ad- vantage of a retirement incentive by giv- ing her job to another employee under a workforce adjustment directive. Diane Legros, 67, worked as a senior policy analyst at the Ca- nadian Border Services Agency (CBSA). In the federal public ser- vice since 1989, she joined CBSA in 2011 through a staffing process. In the 2011-12 fiscal year, the federal government implement- ed a deficit reduction action plan that required all public service agencies to reduce staff and gov- ernment spending. Part of the plan involved a "workforce ad- justment directive" to maximize employment opportunities for any public servants who wanted to remain in the public service but had their jobs eliminated by finding alternative employment whenever possible. In addition, employees who were close to retirement were given an incentive — a cash pay- ment based on years of service — if they gave up their positions to employees whose jobs were being cut. is directive was incorporat- ed into the government's various collective agreements. Any em- ployee wishing to leave the public service could post his position on a government website — the pro- cess was called alternation — and management would decide if any- one applying was suitable. In 2012, Legros was 62 years old but she wasn't prepared to retire because she had taken extended medical leave from 2006 to 2009, during which she had lost income and incurred medical expenses. So Legros was interested in the in- centive because the cash payment could allow her to retire. However, Legros' manager re- fused her request as it had been decided Legros' position could be eliminated as part of the cost-cut- ting since Legros was likely close to retirement. But Legros felt her position was too important to be eliminated, and she had never indicated her intention to retire anytime soon. On the recommendation of a union representative, Legros posted her position anyway, be- lieving the collective agreement and the workforce adjustment directive allowed her to do so. When management saw it, they removed it from CBSA's website. But Legros received about 15 applications for her job, which she sent to her manager, who in- formed the employees that the al- ternation of Legros' position had not been approved. Legros filed a grievance against the decision to deny the alternation and claimed she was being discriminated against because of her age. ere were many grievances filed regarding the workforce ad- justment directive, and in April 2013, an adjudicator determined there was nothing in the direc- tive's wording that said a depart- ment could consider its future planning in the context of an alternation, and a proposed al- ternation could only be blocked if the employee in question had given a notice of resignation of retirement. Legros' union representative advised her of the decision and recommended she resume her al- ternation steps. Her manager was told by human resources that she had to review any applicants for Legros' position, but the manager still felt it would be problematic as Legros' job was to be eliminated when she eventually retired. The manager reviewed the applicants but found none were qualified for the position, mostly because they didn't have experi- ence developing and implement- ing policies and procedures gov- erning CBSA real property man- agement activities — a qualifica- tion Legros hadn't been required to have when she started and wasn't in the official job descrip- tion, but the manager decided was important because of the unique- ness of CBSA's real property, such as border controls. Legros spoke to her manager on June 18, 2013, and was told her position would still be eliminated once she retired and it would be pointless to send her any more applications. CBSA took Legros' grievance to the final level of the grievance process and determined that an alternation for her position could occur. However, Legros filed a second grievance as there was no acknowledgment that the agency had discriminated against her based on her age and her man- ager's attitude made an alterna- tion impossible — she didn't in- terview any candidates and never sent them the requirements of the position in advance. Board weighs in e Public Sector Labour Rela- tions and Employment Board found Legros' age played "a major role in the employer's decision" regarding alternation. Legros was identified as someone whose po- sition could be eliminated soon as she would retire shortly, but Legros had not indicated any plans to retire. is was "the stereotyped view of (Legros) as being of a certain age and retiring soon" that hinted at discrimination right off the bat, said the board. is was impor- tant because the Supreme Court of Canada had established that "an employer's perception of a medi- cal condition is just as important as the condition itself " and the same could be applied to another protected ground. e board also found that once the employer considered Legros' grievance and determined she was entitled to an alternation, Legros' manager "did everything in her power to prevent one from taking place." e manager's fail- ure to review the applicants and addition of an experience qualifi- cation that hadn't been in place for the position before showed "bla- tant bad faith" and was related to Legros' age, said the board. "(e manager) continued to view (Legros') position as one that she did not want to fill because, in her view, it would no longer be funded after (Legros) departed," said the board. "Once again, she was counting on (Legros) retiring, which she could not have contemplated with such certainty had (Legros) been 10 or 15 years younger. In other words, the benefit continued to be denied, and (Legros') age was certainly a factor." e board found the manager didn't allow the alternation be- cause she was convinced Legros would retire soon — a discrimi- natory decision based on Legros' age. Because CBSA allowed the manager to continue to hold up the alternation, even after the grievance, that warranted extra damages as well, said the board. CBSA was ordered to pay Legros $15,000 for the age dis- crimination and another $10,000 in special compensation for pain and suffering and the denial of potential retirement with the in- centive because of "the wilful and reckless refusal to adhere" to the workforce adjustment directive's principles. For more information see: •Legros c. Conseil du Trésor (Agence des services frontaliers du Canada), 2017 CarswellNat 5897 (Fed. Public Sector Lab. Rel. & Emp. Bd.). Jeffrey Smith is the editor of Ca- nadian Employment Law To- day. For more information, visit www.employmentlawtoday.com. Jeffrey Smith Legal View

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