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

A dismissed New Brunswick government 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 notice 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 taxpayers at a call centre. The job was a seasonal 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. That year, he accepted a position with the Government House Leader’s Office in the New Brunswick legislature. This was under the federal interchange programme, which allowed Smith to keep his employee status, wage rates and benefits as a federal civil servant while working at the provincial level. The 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 returned 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 affairs, 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. The 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 corporate services divisions in the New Brunswick Department of Tourism, Heritage and Culture. Though it was a permanent position, he remained on leave from CRA.

In September, a new government was elected in the province. Smith wasn’t involved 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 dismissed. He told not to return to the workplace 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 reported 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 entitlement. He also argued he was treated unfairly 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.

The board agreed that the termination of Smith’s employment was unexpected, but there was no indication the Department of Tourism, Heritage and Culture did anything particularly malicious in the dismissal. While Smith may have felt humiliated when he was taken back to his desk to get his cellphone, it was unlikely the staff who saw him saw it as part of his termination. There was also no evidence Smith suffered from psychological stress beyond what would be normal for someone who lost his job — he didn’t take advantage of counselling offered by the employer, said the board.

The 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.

The board also found similar employment was difficult to find for a 50-year-old civil servant with Smith’s experience. Though his previous provincial positions weren’t secure, there was no reason to believe his last position 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.

The 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 ordered 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.).

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