Was acting employee demoted and penalized?
This instalment of You Make the Call looks at a federal employee who filled a managerial position higher than her regular job on an acting basis for several months but was returned to her old position after she was deemed to be unqualified.
Karen Peters works as a senior advisor in the Federal Treaty Negotiation Office (FTNO) in Vancouver, which is part of the Department of Indian Affairs and Northern Development. In November 2001, Peters was assigned the duties, on an acting basis, of a vacant higher-level managerial position. She performed the duties of her original position and the new position and received higher pay until June 2002 to reflect the increased duties. She did not at any point receive an official offer of promotion to the managerial position, though an extension of the acting assignment was offered.
Peters’ supervisors agreed to assess her skills with the possibility of giving her the managerial position on a full-time basis. Though she received a positive performance review in the acting capacity, they found Peters did not meet the requirements for the full-time position. They suggested she continue temporarily “as a development opportunity” while they filled her normal advisor position.
Peters thought this would make it easier for them “to get rid of her” and ended her acting assignment. On March 24, 2004, Peters met with her supervisors who then told her she was not performing her job to their satisfaction, her advisor position was being reclassified and she would be declared a “surplus” employee. After she filed a grievance, she was awarded retroactive pay for her acting appointment and a position similar to her old senior advisor job was “re-established” in April 2005 with her as the incumbent at her old salary and outlining her current qualifications.
Peters believed the success of her original grievance should have resulted in her returning to the managerial position. She claimed her performance in the acting assignment demonstrated “the required standard of performance” and the positive review and extension showed FTNO thought she was capable of doing the job. She argued the reclassification of her old position and declaring her “surplus” then restoring her to her old job level was a disciplinary measure and amounted to a financial penalty. She demanded to be restored to the higher position with pay retroactive to the date of the reclassification.
You make the call
Was the employee penalized by demotion from a higher-level position?
OR
Was the employee never promoted in the first place?
If you said she was never promoted in the first place, you’re right. There was no official offer of the full-time managerial position and FTNO made it clear she was performing the duties on an acting basis. When her senior advisor position was re-established and reclassified, it was at the same level as her original job.
The adjudicator said the employer’s actions in offering to help her skills development, its efforts to ensure she remained employed by establishing a position similar to her old one and the fact it was Peters who ended her acting assignment, were inconsistent with her claims of disciplinary measures.
The adjudicator noted Peters confirmed she had never successfully competed for a higher position. Her performance of managerial duties on an acting basis “at no point involved her substantive appointment” to the managerial position.
Because her substantive position remained at the original advisor level, returning her pay to that level after the acting assignment was over could not be seen as a financial penalty. “An employee must be moved to a position with a lower rate of pay to be demoted. There is not evidence that (Peters) ever occupied (a higher-level) position as a term or indeterminate employee.” See Peters v. Canada (Treasury Board–Department of Indian Affairs and Northern Development), 2007 CarswellNat 257 (Can. Pub. Service Lab. Rel. Bd.).
Karen Peters works as a senior advisor in the Federal Treaty Negotiation Office (FTNO) in Vancouver, which is part of the Department of Indian Affairs and Northern Development. In November 2001, Peters was assigned the duties, on an acting basis, of a vacant higher-level managerial position. She performed the duties of her original position and the new position and received higher pay until June 2002 to reflect the increased duties. She did not at any point receive an official offer of promotion to the managerial position, though an extension of the acting assignment was offered.
Peters’ supervisors agreed to assess her skills with the possibility of giving her the managerial position on a full-time basis. Though she received a positive performance review in the acting capacity, they found Peters did not meet the requirements for the full-time position. They suggested she continue temporarily “as a development opportunity” while they filled her normal advisor position.
Peters thought this would make it easier for them “to get rid of her” and ended her acting assignment. On March 24, 2004, Peters met with her supervisors who then told her she was not performing her job to their satisfaction, her advisor position was being reclassified and she would be declared a “surplus” employee. After she filed a grievance, she was awarded retroactive pay for her acting appointment and a position similar to her old senior advisor job was “re-established” in April 2005 with her as the incumbent at her old salary and outlining her current qualifications.
Peters believed the success of her original grievance should have resulted in her returning to the managerial position. She claimed her performance in the acting assignment demonstrated “the required standard of performance” and the positive review and extension showed FTNO thought she was capable of doing the job. She argued the reclassification of her old position and declaring her “surplus” then restoring her to her old job level was a disciplinary measure and amounted to a financial penalty. She demanded to be restored to the higher position with pay retroactive to the date of the reclassification.
You make the call
Was the employee penalized by demotion from a higher-level position?
OR
Was the employee never promoted in the first place?
If you said she was never promoted in the first place, you’re right. There was no official offer of the full-time managerial position and FTNO made it clear she was performing the duties on an acting basis. When her senior advisor position was re-established and reclassified, it was at the same level as her original job.
The adjudicator said the employer’s actions in offering to help her skills development, its efforts to ensure she remained employed by establishing a position similar to her old one and the fact it was Peters who ended her acting assignment, were inconsistent with her claims of disciplinary measures.
The adjudicator noted Peters confirmed she had never successfully competed for a higher position. Her performance of managerial duties on an acting basis “at no point involved her substantive appointment” to the managerial position.
Because her substantive position remained at the original advisor level, returning her pay to that level after the acting assignment was over could not be seen as a financial penalty. “An employee must be moved to a position with a lower rate of pay to be demoted. There is not evidence that (Peters) ever occupied (a higher-level) position as a term or indeterminate employee.” See Peters v. Canada (Treasury Board–Department of Indian Affairs and Northern Development), 2007 CarswellNat 257 (Can. Pub. Service Lab. Rel. Bd.).
