Colleagues,

I wanted to update you about what the Association is doing about (1) the related issues of the 4th wave of the COVID epidemic and the return to the office and (2) security against dismissal without cause.

Return to Office

As we all know, the policy of the government in relation to return to work is to secretly make decisions, announce them and (then maybe) backtrack. The idea that occupational health and safety is a joint responsibility of employees and employers and that employees should be consulted has apparently not occurred to anyone. Last Fall, during a caretaker period, PSA tried to put through a “back to the office” plan just as the second wave of COVID was hitting, apparently based on pressure from Downtown Victoria businesses. That was ultimately abandoned and of course in November 2020 the Province went back into lockdown.  We pulled together as a public service and as a branch during the pandemic. It makes no sense to plan a return to the office unilaterally.  As an unrecognized association, there are limits to what we can do.

At the Branch level, we have had preliminary discussions with Branch management about return to office policies, although not yet about the question of how physical offices will be assigned once this occurs. We are assured that Branch management supports flexibility about working at home. Please let us know if that is not your experience. We have passed on concerns about the “Telework Agreement” and have some informal information that it may be revised.

For office allocation, Branch management is proposing a rule that no one will have a dedicated office unless they work at least 4 days a week in the office. This is clearly going to create a disincentive to working away from the office. I do not think anyone objects to the principle that, all other things being equal, dedicated office space should be provided in priority to those who are working at the office the most. But the 4 day figure is, so far as we can tell, an arbitrary one. We are proposing a more principled approach in which the Branch first receives information about preferences, adjusts those if necessary for operational needs, and then provides for an allocation rule based on available office resources.

The Federal government has mandated vaccination for all federal public servants. We recognize concerns about breakthrough infections and the possibility of passing those on to unvaccinated children or vulnerable friends and family for whom vaccines may be less efficacious. We also recognize the importance of individual autonomy, although we certainly encourage everyone to get vaccinated. Please let us know your views on this issue and any other health and safety issues around return to the office and the current public health situation.

Job Security Against Dismissal

Unfortunately, one of our members was dismissed without cause. The BCGLA arranged for legal representation. I cannot say any more about the circumstances, but would like to talk to you all about the systemic implications for our job security as employees who have been excluded from collective bargaining by statute.

The government can terminate the employment of any one of us at any time without cause if it is willing to pay damages in lieu of a notice period. As long as the ADAG, DAG and Deputy for PSA approve it, anyone can lose their job with no recourse. It is no disrespect to any of the people doing these jobs to note that they are not independent. Moreover, none of them hear the employee’s side of the story before acting. While BCGLA has provided representation for disciplinary measures short of dismissal, the PSA takes the position that termination without alleging cause is not “disciplinary.” So we are in the absurd situation that we can help people facing a letter of expectation to ensure the process if fair and reasonable, but not people facing loss of their job.  An individual has the right to a “support person” at the meeting where they are told they are fired, but that person cannot make any arguments as to why the firing should not take place.

If we are recognized as a bargaining agent and obtain a collective agreement, no one can lose their job without a right to access a third-party grievance/arbitration process. That does not mean that no one will ever be fired. But it does mean that management will have to document problems and address them with employees on a progressive basis, and that a neutral decision maker can ultimately hear both sides of the story. It means that if the problems are actually a personality conflict or principled disagreement with a supervisor, this can be addressed. And if they are because of mental health issues or other factors that are beyond the employee’s control, those can also be addressed.

In recent years, Legal Services Branch has been growing. But there is no guarantee that will continue forever. It is foreseeable that governments will be under fiscal pressure in the near future. If there is downsizing, under the current regime, there is no principled basis on which management would decide who would stay and who would go.

Job security is important to everyone. But we have the specific problem that it is part of our job description to tell powerful people things they do not necessarily want to hear. I fell we can be reasonably confident that if someone were fired for telling the truth, it would be possible to prove it before an independent arbitrator. But would that be possible if the only safeguards are within management itself, especially in a layoff situation? For this reason, I have long thought that our core job of making sure the executive government acts in accordance with the rule of law requires bringing the rule of law to the workplace relations we are subject to. And that can only occur with a recognized bargaining agent and a grievance/arbitration procedure.

Since we are always seeking incremental gains, we asked executive management and the PSA whether BCGLA could make representations on behalf of a member whose dismissal was being contemplated before it was formally done. We were told no.

The collective remedy for this situation is to organize together in the post-pandemic world (presuming that comes) and to put pressure on government to talk to us in good faith about recognition as a bargaining agent. In the Fall, we will be putting together events online and in person in Victoria and Vancouver to get your feedback about how to do this.

Individually, I would urge everyone not to do the traditional lawyer thing and internalize stress, overwork and mental health issues. In my experience, these are almost always at the root of performance issues for people who have been high functioning. The last two years have been particularly hard on mental health for everyone. If these issues are identified to the employer as the reason for performance issues, then there are legal obligations to accommodate. If they are not, dismissals can occur without notice.

Whatever happens, please reach out to your BCGLA executive members to see what we can do.

In solidarity,

Gareth Morley

President, BC Government Lawyers Association

Pronouns: he/him/his

I gratefully acknowledge that I live and work on the traditional territory of the Lekwungen Peoples, specifically the Songhees and Esquimalt First Nations.