Thank you. Clause 4. Mr. Bromley.
Thank you, Mr. Chair. I’m just going to attempt once more at my question. I apologize; I do not have a legal background. I’m trying to determine, with reference to the initial phrase under Section 4(3), “Notwithstanding any other provision of this act...” I’m just wondering, going back to the Public Service Act as it now stands before amendment, whether it enables the Minister to appoint a person into a position that is already filled, thereby displacing that person. Can the Minister do that already today without reference to what’s happening in this amendment?
Thank you, Mr. Bromley. Minister Bromley.
Thank you, Mr. Chairman. As to a bit of a response, I’ll have Nicole provide the majority of the response. What we’re asking for here is just a change in the term. The legislative proposal presented here today is the legislative proposal that is trying to put the least impact possible on an individual that is affected by layoff. Currently, this legislation reads that the individual has to be laid off and everything else is the same. If we’re going to make change in this legislation, that’s not something that we’re proposing, that’s outside of our legislative proposal here today, then we would have to go back to the union with that. However, I will ask Ms. MacNeil to provide more detail.
Thank you, Mr. Beaulieu. Ms. MacNeil.
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.
Thank you, Ms. MacNeil. Mr. Bromley.
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?
Thank you, Mr. Bromley. Minister Beaulieu.
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.
Thank you, Mr. Beaulieu. Ms. 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.
Thank you, Ms. MacNeil. Mr. Bromley.
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.
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.
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?
Thank you, Mr. Bromley. Minister Beaulieu.
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.
Thank you. Deputy Minister.
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.
Thank you, Deputy Minister Desjardins. Next I have Ms. Bisaro.
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.
Thank you, Ms. Bisaro. Ms. 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.
Thank you, Ms. MacNeil. Next I have Mr. Moses.
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.
Thank you, Mr. Moses. Minister Beaulieu.
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.
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.
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.
Thank you, Minister Beaulieu. Ms. MacNeil.
Thank you, Mr. Chair. With regard to the concern expressed over in the opinion of the Minister, certainly the process before consideration would be brought to the Minister’s desk, would be the input of the employing department of the employee who is facing layoff, and I note the final qualifier to the language is it’s a position for which the employee is qualified, which is key here. There would be the information brought forward from the employing department, that although it’s unfortunate that the positon that the incumbent presently holds is either being moved or being eliminated for business reasons, that individual is a valued public servant and is one that should be kept, if at all possible, with the public service, and the position that they would be appointed to must be one for which they are qualified for, and all of that background information and briefing notes would be provided to the Minister for his consideration based on the information from those who are on the front lines and who are aware of this employee’s skills and abilities.
Thank you, Ms. MacNeil. Mr. Moses.
Thanks, Mr. Chair. I think that’s where we get a little bit of a concern, is that if it’s the opinion that we want to keep somebody continued within the public service sector, that if we do find a position that they’re qualified for, say, in the Department of Justice, and they’re leaving, maybe, the Department of Human Resources, that in the other department there’s the opportunity for other employees, especially now that we’re trying to do this regional engagement strategy, that we’re not taking somebody in that positon that might have been there for 20 years and now we’re filling a vacant positon that didn’t go out for competition when we might have two or three other qualified candidates that have worked in that department for years. That’s where I get a little concerned. I’ve seen it happen. I’ve seen employees who’ve worked in departments waiting for a competition to open but under the direction from Ministers I’ve seen positions get filled where we had qualified staff who’ve worked for about 20 years within the government and we just bypass them without any regard, so that we can keep somebody’s continuity with the government up to speed and kind of disrespecting and taking out of consideration these employees who’ve served with that department for a long time.
What provisions are in place that would prevent that from happening, that a job that’s vacant does not go out for competition when we already have qualified people in that department?
Thank you, Mr. Moses. Minister Beaulieu.
I’m going to have Ms. MacNeil explain the process of how the positions are filled. I don’t know how we would go about trying to talk about what happens in the department that’s going to be receiving the affected employee and what happens in there, but we will do our best to try to answer the concern. I’ll ask Ms. MacNeil to add more to that.
Thank you, Mr. Beaulieu. Ms. MacNeil.
The concept of searching out possible positions for employees facing layoff comes from the guidelines and principles set out in our Staff Retention Policy, which is a policy that has been passed by the Financial Management Board. Certainly, it is a focus of government and an important factor for government to do everything they can to retain employees who, for no reason of their own, the positon is being eliminated, and those employees, through our Staff Retention Policy, have been designated as having priority and that we must consider possible opportunities for them short of having to proceed with actually laying them off.
Thank you, Ms. MacNeil. Mr. Moses.
I’m not too familiar with the Staff Retention Policy, but if there are provisions in there that respect that, but it’s also stated in this clause that it’s still under the opinion of the Minister here. Should those type of positions happen where the Minister does direct appoint an employee that’s identified for layoff into a position that wasn’t put up for competition but we did have qualified individuals in that department, is there an appeals process for the affected employees in the department where the job wasn’t put up for competition? Is there an appeals process on their behalf, the person who might have been working 20 years waiting to get to that job? Is there an appeals process that they can bring forth when a person with maybe only two or three years in the public service gets that position?
Thank you, Mr. Moses. Minister Beaulieu.
Thank you, Mr. Chairman. There is no appeal process for this situation.
Mr. Chairman, as I stated, that is a concern for me that if we bypass the process of a competition to accommodate a certain individual that are long-term employees within the government that we might have given awards to, long-term service awards to, are not getting the due respect that they should deserve moving forward. That is a concern, and I think there should be something in place like an appeals process for these individuals who have committed years of service to the GNWT.
One last area of concern is just the double filling of positions, as you heard earlier, in terms of somebody identified. That would mean we’re not paying two people to do the job of one job position even though there’s going to be on-the-job training and those kinds of things. Now we’re having two people do the job of one person, and once again, it’s speaking to the integrity of somebody who’s wanting to maybe retire out of public service who might have put in 30 years, and now instead of giving them the integrity to do their job, it might be a big project on their way out of their project, now we’re sending somebody else in and it all moves kind of like we’re pushing them out the door a lot sooner. That’s just another concern for our long-term employees who have done good work on our behalf and now we’re back double filling a job and paying two people to do the job of one person. I just wanted to put that concern out there as well.
We’re not equipped to make changes to the Public Service Act as a whole. These amendments are not contemplated here today. This legislative proposal does not contemplate those amendments. They are in the current Public Service Act.
We agree that there should be a review of the Public Service Act. We have indicated that a review of the Public Service Act would take about two years.
These are amendments within the Public Service Act that we’re looking at and we consider to be minor amendments to streamline, simplify and improve the process for employees. It is all of the other things that need to be reviewed in the Public Service Act that are being contemplated here today.
I can perhaps ask Ms. MacNeil to talk a bit about the Public Service Act, or maybe specific to some of the concerns that are brought forward today.
Thank you, Minister Beaulieu. Ms. MacNeil.
Thank you, Mr. Chair. I would like to comment on the concerns raised with regard to the double fill concept. Certainly, when we have an employee who has served the public service for, as the example illustrated, 30 years, and has done valued service and has contributed over that time, a key to preserving that work is proper succession planning. That’s an important factor for any employer. It certainly is important for the public service. The idea of double filling as someone is about to retire is, in part, so that we do not lose the continuity of the good work that that individual has established and done. Bringing in someone to work alongside of them would certainly be explained as to the purpose and I would hope that the present incumbent would agree with the employer the need for ensuring that all that corporate knowledge that they know, the process and the work and certainly on a specific project is properly transitioned to an individual who will be replacing them as they retire. That is the purpose. It certainly is not to make someone feel devalued, but in fact I would hope it has the contrary effect of ensuring that person appreciates that the employer does see the value of the work that they contributed and we want to ensure that it continues with the employee coming in behind them after their long period of service.
Thank you, Ms. MacNeil. Next I have Mr. Dolynny.
Thank you, Mr. Chair. I have been listening very attentively to the issue regarding this clause. To save time and energy of the House I’d like to move a motion, Mr. Chair.
Thank you, Mr. Dolynny. Go ahead, Mr. Dolynny.
