FPSLREB Decisions

[1]   The Public Service Alliance of Canada and Jacques Demers filed a complaint under paragraphs 23(1)(a) and 23(1)(d) of the Public Service Staff Relations Act (PSSRA). They allege that the employer, or someone acting on its behalf, failed to respect their rights under the PSSRA and its Regulations, including the right to representation under section 8, by refusing to receive Mr. Demers' classification grievance on the ground that he was not the incumbent at the time that the classification decision was made, pursuant to the conditions set out in the employer's grievance procedure.

[2]   The employer responded that in order to proceed with the review of a classification grievance, a preliminary review must to be carried out and the grievance declared valid according to the internal classification grievance procedure. In the employer's opinion, Mr. Demers was not entitled to file a grievance under this procedure because he was not the position incumbent at the time it was classified and, therefore, he was not denied any rights. There is no recourse to a complaint under section 23 of the PSSRA.

[3]   On May 30, 2002, five other employees filed a complaint along with Mr. Demers against the employer and Mssrs. Vince Renda and Daniel Tucker, acting on its behalf. These complainants withdrew, and Mr. Demers proceeded alone against the employer with an amended complaint. This amended complaint, which had already been communicated to the other party, was not contested. It only refers to the employer and Mr. Tucker. Mr. Demers testified on the facts related to him personally. The respondents did not call witnesses. The parties agreed to file Exhibits 1 to 13, including Canada Customs and Revenue Agency's "Classification Grievance Procedure" (CGP).

[4]   The amended complaint (Exhibit P-9) reads as follows:

[Translation]

APPENDIX A

[…]

According to the complainant:

The employer or a person acting on its behalf failed to comply with the Public Service Staff Relations Board Regulations on classification grievances and consequently failed to comply with the prohibitions listed in paragraph 23(1)(d) of the PSSRA. The complaint specifically, but not exclusively, addresses subsections 71(3) and 74(2) of the Regulations.

Moreover, the respondent interfered with the bargaining agent's right to represent an employee who had exercised his right to present a classification grievance, and in so doing failed to comply with the prohibitions listed in section 8 of the PSSRA.

[…]

[5]   The actions or omissions for which the employer is being reproached are briefly outlined below:

[Translation]

APPENDIX B

[…]

On November 1, 2001, Jacques Demers presented a classification grievance (attached). On February 18, 2002, Dan Tucker refused to acknowledge this grievance (see attached document).

The complainant argues that the employer's actions do not constitute a reasoned response to an employee's right to present a classification grievance. Moreover, the respondent, by its attitude, took away an opportunity to hold a hearing on the complaint and for the union to represent the employee.

[…]

[6]   Finally, the Board is asked to issue the following order:

[Translation]

[…]

APPENDIX C

1. Declare that the respondent violated section 8 of the PSSRA;

2. Order the respondent to cease and desist from committing such violations;

3. Order the respondent to address the classification grievance that resulted in the violations without further delay;

4. Confirm the complainant's right to have his classification grievance heard and to be represented by the union's designated representative;

5. Order that the classification grievance procedure be amended to comply with the provisions of the PSSRA; and

6. Order that whatever recourse is necessary in the opinion of the Board or the adjudicator to ensure that the complainant receives full compensation be passed and that all parties concerned comply with the legislation.

[…]

The evidence

[7]   The Agency's "Classification Grievance Procedure" (CGP) was passed by resolution in December 1999 (Exhibits 2-A to 2-C); the Agency thereby adopted the Treasury Board's existing procedure and directives (Exhibits 1-A to 1-C) for its own purposes. The provisions of this procedure (Exhibit 1-A) that are related to this case are as follows:

[…]

I.   GENERAL INFORMATION

A.   WHO CAN GRIEVE

1. The Public Service Staff Relations Act gives employees the right to present a grievance. For purposes of the classification grievance process, "employee" means any person employed in one of the departments and other portions of the Public Service specified in Part I, Schedule I of the Act, including persons who are employed in a managerial or confidential capacity.

2. Persons employed on a casual or term basis for a period of less than three months or those who are required to work less than one-third of the normal period for employees doing similar work do not have the right to present a classification grievance.

B.   DEFINITION OF A CLASSIFICATION GRIEVANCE

1. A classification grievance is a written complaint by an employee against the classification of the description of work he or she performs and which is assigned by the employing department or agency. For purposes of this grievance process, "Classification" does not include the work description or the effective date of the classification decision. These matters are resolved through the Staff Relations Grievance Process provided in the collective agreements.

C.   CIRCUMSTANCES JUSTIFYING THE PRESENTATION AND TIME LIMITS FOR PRESENTING A GRIEVANCE

1. A classification grievance must be submitted at the final level of the grievance process, where the grievance relates to classification. An employee shall present a grievance no later than on the 25th day after the day on which the employee is notified orally or in writing or, where the employee is not so notified, after the day on which he or she first becomes aware of an action or circumstance affecting the classification of the position he or she occupies. An employee has the right to be informed of all actions or circumstances affecting the classification of his or her position.

[…]

IV.   PRELIMINARY ACTION

A.   INITIAL EXAMINATION OF A CLASSIFICATION GRIEVANCE

1. All grievances must be examined for validity. The deputy head or nominee will determine whether it should be accepted or rejected.

2. A classification grievance must be accepted as long as the grievor was occupying the subject position at the time the classification decision was rendered, and, provided the grievance has been submitted within the time limits.

3. No distinction is to be made between an employee occupying a position on an acting or substantive basis. However, the work description forming the basis of the decision being grieved must be the work assigned to the position occupied by the employee who is presenting the grievance.

[…]

[8]   Mr. Demers has worked at the Agency since 1974, first as an auditor, then as a special investigator, from 1979 to 1993. After some time in the Appeals Division, he was appointed as acting team coordinator at the PM-04 level. In 2001, he returned to special investigations, criminal investigations program.

[9]   He held this position on an acting basis starting in April 2001. Following a selection process, he was given a letter of offer dated August 30, 2001 (Exhibit P-4). This letter indicated that his appointment would be effective August 1, 2001.

[10]   Mr. Demers explained that he accepted the offer on October 1, 2001, upon returning from a three-week course at Rigaud (Exhibit P-10). Upon his return to work on October 1, he became aware, for the first time, of the offer and the accompanying work description (Exhibit P 5). He presented his classification grievance on November 1, 2001, less than 25 days after accepting the letter of offer.

[11]   Mr. Demers indicated that it was after comparing the PM-04 position description with that of the AU-02 position that he decided to present his grievance. He indicated that he had returned to special investigations at a salary level that was identical to that of an AU-01. This resembled the situation at the time he left in 1993, when he held a PM-03 position. He was very disappointed, since he had left the division at that time because of what he saw as an injustice in terms of his classification compared with that of AUs, whose development the employer was promoting. Upon his return in 2001, he found that things had not improved. Thus, he finds himself in the same situation with a salary comparable to that of an AU-01, even though, in his opinion, the complexity of the files he is handling, given his experience, is higher and similar to that of files being handled by AU-02 employees. During cross-examination, he acknowledged that he cannot apply for an AU position because he is not eligible, given that he does not have a university degree.

[12]   He indicated that, upon his return in April, he was offered a PM-03 position. He turned down the offer, pushed for and got the acting PM-04 position, since his substantive position had been at the PM-04 level. He was appointed to the position with the understanding that he would have to take training to update his knowledge, which he did the following September. As previously mentioned, he also had to take part in a staffing competition.

[13]   In response to his grievance, he received a letter dated February 18, 2002, from Assistant Commissioner Daniel G.J. Tucker (Exhibit P-6) explaining the reasons for the refusal to accept the grievance and to proceed with its review. He then approached his union to explain the situation. At its request, he recorded his comments in a letter addressed to Michelle Tranchemontagne on April 29, 2002 (Exhibit P-13).

[14]   It is agreed that Mr. Demers was not in the position on June 10, 2000, when the position was classified. However, he believes that he had the right to the classification grievance as soon as he officially learned of the work description on October 1, 2001. This complaint is allegedly his only way of redressing the situation, which he sees as an injustice in the system.

[15]   During cross-examination, he explained that he had turned to his union to determine what recourse he had, after setting out his concerns. In his opinion, the position should have been classified at the AU-02 or PM-05 level. Essentially, it amounted to an issue of wage discrimination, since he believes that he is performing tasks of the same level of complexity as those performed by his colleagues at higher levels. He sees himself as a victim of wage discrimination and procedural unfairness.

Complainants' arguments

[16]   The procedure used by the employer denied Mr. Demers his right to a classification grievance as provided under the PSSRA on the grounds that he did not hold the position when it was classified. This provision contravenes the rights of employees who are protected under the Act. The bargaining agent denounced the employer's practice as being unfair. In fact, Mr. Demers presented his grievance 22 days after officially learning of his position description. It was only after this that Mr. Demers' right to grieve began. The employer is not entitled to deny him this right; it must accept the grievance and investigate it. Procedural fairness was violated.

[17]   By refusing to accept such grievances, the employer denies the rights of public servants under the PSSRA. In so doing, the employer also suppresses the employee's right to be represented under section 8 of the PSSRA. Mr. Demers had the right to be heard and to be represented.

[18]   While the employer's right to determine the classification levels of positions is recognized, the employer cannot determine the conditions under which a grievance in this regard may be admissible. This is the issue in dispute here. The employer also has the authority to assign functions to positions and to determine other conditions of employment through its organizational authority in the Public Service. This does not take away from the employee's right to present a grievance on conditions of employment. Why would it be different for classification? Nor may the employer take advantage of the fact that the position is vacant to classify it and thereby avoid a grievance.

[19]   In support of its arguments, the bargaining agent submitted a number of decisions by the Board. The bargaining agent's representative pointed out that Public Service Alliance of Canada v. Treasury Board, PSSRB File Nos. 148-2-103 and 161-2-356 (1985) (QL), is highly applicable to this case. He raised the argument used by counsel for the applicant in that case at page 3, paragraph 10:

He argued that subsection 90(1) of the Act gave each employee a fundamental right, namely the right to grieve in respect of "any occurrence or matter affecting his terms and conditions of employment". The classification of an employee's position was such an occurrence or matter, according to Mr. Wright. As for section 7 of the Act, he contended that the applicant was not challenging the employer's right or authority to classify positions, but was merely raising questions of procedure in relation to classification grievances.

[20]   The decision rendered by Deputy Chairperson W.L. Nisbet, Q.C. in Burke et al. and the Public Service Alliance of Canada v. Napoli et al. (Transport Canada), PSSRB File No. 161-2-372 (1987) (QL), also confirms the right to grieve a classification. Board Member D. Kwavnick reached the same conclusions in Boyer and Marks, PSSRB File Nos. 161-2-516 and 517 (1989) (QL), page 33: "In respect of classification matters, section 91 assures employees of the right to challenge an employer decision once."

[21]   The Board's authority is also recognized in this matter. To this end, for the purposes of this case, counsel for the complainants raised the arguments presented in Boyer and Marks (supra) (page 24), to the effect that since the employer acknowledged the right to present a classification grievance in its "Personnel Management Manual", the employee may seek the protection of sections 23 and 8 of the PSSRA, as supported by Board Member Kwavnick (page 28).

[22]   Regarding timeframes, counsel for the complainants relied on the decision in Gendron v. Treasury Board (Environment Canada) , PSSRB File No. 166-2-19054 (1989) (QL), to confirm that Mr. Demers acted within the prescribed timeframe from the moment he came into possession of the required official documents and all the elements needed to assess his decision on presenting a grievance.

[23]   According to him, these decisions confirm that the employer, under circumstances such as those in this case, is required to comply with the PSSRA and its Regulations and to accept the grievance. It is required to proceed in compliance with the rules of procedural fairness. This is an important issue for all of its members since appointment to a position must give them the right to present a grievance. This point should be clarified.

[24]   In conclusion, I am being asked to allow the complaint and order the employer to initiate a classification process on Mr. Demers' position.

Respondents' arguments

[25]   Counsel for the respondents pointed out, from the outset, that the burden of proof falls on the employee who presents a complaint under sections 23 and 8 of the PSSRA. Thus, the complainant must convince me that the employer prevented him from exercising a right.

[26]   The first issue would, therefore, be to determine whether there is a right. The employee first had to establish a right before alleging that it had been denied. According to the employer, the complaint is unfounded since the right to present a classification grievance does not exist a priori.

[27]   The case law and the complainants recognize the employer's authority in the area of classification. This authority also gives the employer the right to set the procedures and means of contesting these classifications. In Chong v. Canada (Attorney General) , (1995), 104 FTR 253, and Hale v. Canada (Treasury Board), (1996), 112 FTR 216, the Federal Court confirmed that, since neither the Public Service Staff Relations Act nor the Financial Administration Act provides for such procedures, the Treasury Board has the authority to establish them. Thus, the Federal Court recognizes the latter's procedure in this area, as set out in its Personnel Management Manual.

[28]   Hence, in 1999, the employer passed a very restrictive "para-regulatory" procedure by resolution of the Agency (Exhibit P-2 bound). It is required to follow it. The resulting procedure (Exhibit P-1A), in particular the extracts quoted at the beginning of this decision, raises questions about whether the employer would have been acting illegally if it had accepted the grievance presented. According to the procedure, the grievance must be valid under that procedure in order to be subject to review. If the presentation of the grievance does not meet the established conditions, there is no right to grieve. Thus, the employer did not deny Mr. Demers his entitlement to exercise his right.

[29]   The facts in this case are clear and support the employer's decision: a position classification decision was made on October 6, 2000; at that time, Mr. Demers was not the incumbent of the position; he was appointed to it in 2001; the employer proceeded with the initial review of the grievance when it was received and rejected the presentation based on paragraph 2 of sub-section IV. A of its procedure. Thus, one must conclude that Mr. Demers was not denied anything.

[30]   Counsel for the employer likened this provision of the CGP to the limitations contained in section 91 of the PSSRA covering, for example, grievances related to issues arising from the Canadian Charter of Rights and Freedoms. Thus, a grievance adjudicator would have to decline jurisdiction under a prima facie Charter test. In such circumstances, the arbitrator would not be denying the employee the right to grieve since this right would not exist. The same applies here.

[31]   The Agency handles hundreds of cases a year. It cannot be accused of limiting the right to grievance; this would be incorrect. Moreover, there is no evidence of obfuscation on the part of the employer or respondent. It is simply that Mr. Demers did not have a valid grievance; there was no anti-union animus.

[32]   In conclusion on this issue, the employer argues that it would have been acting illegally if it had accepted the grievance. It did not deny Mr. Demers his rights because he had no right to present a grievance.

[33]   The employer presented other arguments. First, in looking more closely at paragraph 1 of sub-section I. C. of its procedure :

. An employee shall present a grievance no later than on the 25th day after the day on which the employee is notified orally or in writing or, where the employee is not so notified, after the day on which he or she first becomes aware of an action or circumstance affecting the classification of the position he or she occupies. (Emphasis added by undersigned)

it is evident that the grievance must concern an "action" affecting the classification of the position that would have happened within the last 25 days or even since Mr. Demers became the position incumbent, even if on an acting basis. No such "action" was taken by the employer within this timeframe in this case. The fact that Mr. Demers became aware of his position description upon his appointment is not an "action" within the meaning of paragraph 1. Moreover, if there was no classification decision, there must have been "circumstances" affecting the classification. In cross-examination, Mr. Demers indicated that he analysed his tasks himself, comparing them to those of an AU-02. Once again, this is certainly not the meaning of the term "circumstances".

[34]   In response to the bargaining agent's argument in reference to subsection 71(3) of the PSSRB Regulations, the employer argues that the action giving rise to the grievance must be the classification decision made in 2000. The action should be initiated by the employer instead of the employee.

[35]   The CGP specifies that this right is only available to the incumbent of the position at the time the classification decision is made. Why? The reason is that it is not possible to grant a right to grieve a classification each time the employer appoints an employee to a new position. This is not desirable and cannot be what Parliament intended. Moreover, the entire staffing process would be threatened.

[36]   Mr. Demers allegedly did not take the right approach. When faced with the refusal to have his grievance accepted, he could have asked for a judicial review. He could also have presented a grievance pertaining to his position description. This is a grievance that employees may initiate themselves and which may result in the position's reclassification. Finally, the employer pointed out that, contrary to what is alleged, Mr. Demers was not without recourse in the event of a negative response by the Board, since the classification action taken in 2000 provided for a review of the position's classification in May 2005. Twenty-five (25) days later, if Mr. Demers is not satisfied, he can grieve.

[37]   When Mr. Demers accepted the position in 2001, he knew what to expect, and he knew the position description and the environment since he had been acting in the position for several months. Mr. Demers cannot accept the position and then decide that it is not properly classified.

[38]   In conclusion, the complainants did not discharge their burden of proof and I should conclude that the complaint is unfounded.

Reasons for decision

[39]   The position held by Mr. Demers was created in June 2000, as shown by the classification decision provided (Exhibit P-3). This document clearly describes the classification action taken by the employer and its reasons. This was a new position. It was designated "PM0677", and it was to be effective May 18, 2000. Also indicated is the fact that the PM-04 classification was decided upon based on the evaluation of a classification committee. The next review date for this classification is set for May 8, 2005.

[40]   Mr. Demers accepted the offer of this position on October 1, 2001, after becoming familiar with and accepting the position description accompanying the letter of offer. He had held the same position on an acting basis since April 2001. He was also very familiar with the work since he had worked in special investigations from October 1979 to April 1993. The parties agreed that Mr. Demers was not the position incumbent in June 2000. Finally, the employer does not contest the fact that he presented his grievance 22 days after accepting the position and obtaining the position description attached thereto.

[41]   The complaint is based on paragraph 23(1)(a), subsection 8(1) and paragraph 8(2)(a) of the Act from the point of view that the employer allegedly interfered in Mr. Demers' representation by his union or unfairly discriminated against him in regard to his conditions of employment, based on his exercise of his rights under the Act. It is also based on subsection 23(d), from the point of view that sections 71 and 74 of the PSSRB Regulations were violated.

[42]   The Board's authority to hear complaints on classification grievances was recognized in Public Service Alliance of Canada v. Treasury Board, PSSRB File Nos. 148-2-103 and 161-2-356 (1985) (QL) and PSSRB File No. 148-2-103 (1985) (QL) and has not been challenged in this case.

[43]   The burden of proof in this type of case falls on the complainant. However, contrary to the arguments put forward by counsel for the employer, the complainant does not have to prove his right to grieve a classification. He has to prove his circumstances and the elements required to give rise to his complaint under section 23.

[44]   In fact, the question put to the Board is whether the employer is denying the employee his right to be heard and to be represented on a classification grievance by requiring, under its CGP, that the employee who presented the grievance be the incumbent of the position at the time of the classification action.

[45]   Thus, according to the complainants, it is from this question that stems the fact that the employer allegedly failed to [translation] "comply with the prohibitions set out in sections 8, 9 or 10" or failed to [translation] "comply with the Regulations on grievances made by the Board under section 100". I shall first address this latter item, which may suffice in determining the outcome of this complaint.

[46]   The employer's authority in regard to classification grievances is recognized by the complainants. Section 7 of the PSSRA is clear in this regard and takes into consideration the authority conferred on the employer by the legislation under which the Agency was created (paragraph 51(1)(c)). Moreover, the Federal Court of Canada has confirmed that this right carries with it the authority to determine the classification grievance procedure. The procedure under which this challenge may occur, hearings, written submissions, etc. falls within the employer's jurisdiction. The Federal Court also set the standard for procedural fairness with which the employer must comply in these matters in Chong and Hale (supra) and this need not be revisited. What is at issue in this case is the right of access to the classification grievance process, which is to say, determination of entitlement. The employer alleges that this entitlement did not exist in Mr. Demers' case since its regulations require that he be the incumbent of the position at the time of the classification decision. Can the employer restrict the right to classification grievance in this manner by setting an a priori condition in its regulations concerning the procedure for settling such grievances?

[47]   The legislative and regulatory hierarchy of this right in regard to classification must be examined. The source of the right to grieve a classification lies in the PSSRA. Section 91(1) of the PSSRA states:

[…]

. Where any employee feels aggrieved:

a) by the interpretation or application, in respect of the employee, of:

i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or,

.

b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii).

[…]

[48]   The right to grieve a classification is recognized in regard to work in the Public Service. It is also recognized by the employer in this case in its CGP in paragraph 1, sub-section I A.:

[…]

I. GENERAL INFORMATION

A. WHO CAN GRIEVE

1.   The Public Service Staff Relations Act gives employees the right to present a grievance. (.)

[…]

[49]   It is not, however, an adjudicable grievance (section 92 of the PSSRA) and the employer's decision is final and binding under the privative clause of subsection 96(3) of the PSSRA:

[…]

Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.

[…]

[50]   Finally, section 100 of the PSSRA confers on the Board the authority to establish regulations in relation to the procedure for the presentation of grievances (including the classification grievance), and subsection 100 (2) provides that any such procedure is in addition to the procedure contained in a collective agreement entered into by the employer and the bargaining agent.

[51]   Of course, these provisions are found in sections 71 and 74 of the PSSRB Regulations on classification grievances. These regulations state that (a) the grievance is only presented at the final level, and (b) the employer has 60 days to respond. Subsection 71(3) gives 25 days to present a grievance.

[52]   The parties have recognized that in this case, these are the applicable regulations. No rule in this regard may be contained in the collective agreement between the parties, since classification is the exclusive jurisdiction of the employer. Which brings me to the CGP.

[53]   This procedure was passed unilaterally by the employer. It is allowed to do this as long as it does not contravene the PSSRA and its Regulations. Under the Board's regulations, Mr. Demers had 25 days to present his grievance starting on the day on which he first became aware of the action or circumstance affecting the classification of the position or the day on which he was notified. He can only meet these conditions once he becomes the position incumbent, as confirmed in Gendron v. Treasury Board (supra) .

[54]   Yet, paragraph 2 of subsection IV A., which is at the core of this debate, states:

A classification grievance must be accepted as long as the grievor was occupying the subject position at the time the classification decision was rendered, and provided the grievance has been submitted within the time limits.

[55]   It goes without saying that the right to grieve a classification belongs to the incumbent of the position. The case law also recognizes that this right belongs to the individual who is performing the functions on an acting basis: Burke et al. and Public Service Alliance of Canada v. Napoli et al. (Transport Canada) (supra). It is understandable that the employer should wish to restrict the right to such grievances to individuals who are legitimate incumbents. Sound labour relations would also support this. An employee should not be able to present a grievance concerning a position of which he/she is not the incumbent or whose functions he/she is not performing.

[56]   In this case, the employer's procedure requires Mr. Demers to have been the incumbent of the position at the time the classification decision was made. Since it is acknowledged that this was not the case, the employer simply concluded that Mr. Demers did not have the right to grieve. This is incorrect. The right to grieve may not be restricted by a procedure unilaterally passed by the employer, in this case the CGP, notwithstanding the employer's authority in the area of classification and its authority to establish grievance procedures. It cannot go that far.

[57]   I must focus on the employer's argument that the limitation it imposed in its procedure has the same effect as any other limitation under subsection 91(1) of the PSSRA:

in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2) (limitations concerning national security and the bargaining agent's authority when the collective agreement is in question) to present the grievance (.).

[58]   I cannot accept this argument. The limitation imposed by the employer through the CGP concerns an area of redress stemming from the PSSRA. There is no administrative procedure for redress other than that provided under section 91 of the PSSRA. Thus, the comparison is tenuous and can only lead to confusion. The employer's recognized authority in the area of classification under its incorporating act (and recognized by the PSSRA) covers the classification of positions. The redress for contesting it falls under the PSSRA, while the procedure for such redress, i.e. hearings, written submissions, etc., comes from the employer inasmuch as it complies with the rules of procedural fairness set by the Federal Court and does not contravene PSSRA regulations.

[59]   It is important to make a clear distinction between the issue of authority conferred on the employer in relation to the grievance process and the source of the right to grieve, which underlies redress, over which the employer has no authority.

[60]   Thus, the employer may not, through its grievance procedure, unilaterally deny this right, which is otherwise recognized under section 91 of the PSSRA. The latter does not set any a priori condition to recourse to the right to grieve. It sets a timeframe after which it expires.

[61]   It goes without saying that the classification of a position cannot be grieved as long as the position has no incumbent. This was a new position, as reflected in the decision of June 10, 2000 (Exhibit P-3). At the time it was classified, there was no incumbent who could have grieved within the 25 days allowed from the time of the decision. Mr. Demers was appointed close to one year later.

[62]   The employer argues that allowing a new incumbent to contest a classification after accepting its terms and conditions by signing the offer and position description would be abusive and would interfere with sound classification and staffing management. It says that Mr. Demers signed the terms and conditions of employment for this position, including its classification, in full awareness. He cannot, 25 days later, contest the classification since no classification action was taken by the employer during that time.

[63]   This brings us to subsection 71(3) of the PSSRA Regulations concerning the issue of when the 25-day period would start and whether any action should have been taken during this period. It reads as follows:

An employee shall present a grievance no later than on the twenty-fifth day after the day on which the employee first had knowledge of any act, omission or other matter giving rise to the grievance or the employee was notified of the act, omission or other matter, whichever is the earlier.

[64]   Hence, in the event of any disparity between the two sets of regulations, this is the provision that must be used to determine whether Mr. Demers met the requirements. According to the PSSRA Regulations, the clock starts when Mr. Demers first learns of the action, omission or other matter giving rise to the grievance.

[65]   The employer alleges that there was no action, omission or other matter giving rise to the grievance within the 25 days after Mr. Demers signed his contract. Such action or other matter dates back to June 2000. The bargaining agent argues that as long as the position has no incumbent, there is no one who can contest it.

[66]   The employer also indicates that Mr. Demers had held the position on an acting basis since April 2001. Would he have been in a position to contest the position classification at that time? Was he not already aware of the job requirements and duties? He later participated in a staffing competition that clearly identified the position at the PM-04 level. The employer argues that, under these circumstances, Mr. Demers was in no position to contest the position's classification. It added that his decision to grieve was based on a superficial analysis. There was no action on the part of the employer during this time.

[67]   I must agree with Board Member Kwavnick's opinion in Gendron v. Treasury Board (supra) and recognize that the position incumbent is only in a position to contest the classification of his/her position once he/she is in possession of the official documents supporting his/her argument. The evidence is that Mr. Demers was only in possession of these documents as of October 1, 2001. Such timeframes (expiry of rights) must be calculated with precision and be based on objective elements. It would be difficult to determine subjectively the moment when Mr. Demers became sufficiently aware of the situation to enable him to participate fully and truly in the process: Hale v. Canada (Treasury Board) (supra) (page 11).

[68]   Mr. Demers found himself in a difficult situation in the months following his acting appointment. He succeeded in being appointed at the PM-04 instead of the PM-03 level, which the employer had initially offered him. He then agreed to the conditions for updating his knowledge. Starting in June, he had to participate in a selection process. He then had to await the outcome of the competition. Thus, it was not until October 1 that he was really in a position to present a classification grievance on his position. There is no doubt that Mr. Demers had already been aware for some time of the tasks associated with his position and had for some time known that his situation had not improved since his departure in 1993. However, it is difficult to see how he could have presented a classification grievance for a position for which he had applied and was still awaiting the outcome of the competition. The classification grievance could not proceed until after Mr. Demers had signed his position description. Section 5 of IV A of the CGP states that:

A classification grievance cannot be considered valid when the job content is being contested ..

[69]   In Boyer and Marks (supra), at page 28, Board Member Kwavnick confirmed that "in the case of those grievances which deal with matters of classification, where the rights of the employer are very broad.the authority of the Board under section 90 (now section 91) does not, with one exception, go beyond ensuring that the right to present a grievance, as set out above, is safeguarded". In the previous paragraph, he indicates that this right must not be reduced to a "hollow mockery", and goes on to say: "that the right of an employee to present a grievance necessarily implies an obligation on the part of the employer to turn its mind to the subject matter of the grievance, to consider those matters and to provide a reasoned response."

[70]   In conclusion, I believe that the employer may not unilaterally restrict the employee's right to present a classification grievance through its CGP by requiring that the employee be the incumbent of the position at the time of the classification. Subsection 74(3) of the PSSRA Regulations provides that the timeframe should begin at the time when the employee first becomes aware of the situation giving rise to the grievance. Mr. Demers officially became aware of the position description on October 1, 2001, and the 25-day timeframe during which he could grieve started on that day.

[71]   Therefore, I will allow the complaint against the employer under subsection 23(d) of the PSSRA. With regard to respondent Tucker, there is no evidence on the facts and actions that would justify having the complaint allowed against him personally.

[72]   Having allowed the complaint under these provisions, I do not need to analyse the file and conclude pursuant to subsection 23(a) of the Act.

[73]   I declare that the contested portion of the "Classification Grievance Procedure" contravenes the Act and its regulations and is therefore null and void.

[74]   I declare that the Agency did not comply with one of the regulations respecting grievances made by the Board under section 100 of the PSSRA.

[75]   I order the respondent to cease this violation of the Board's Act and regulations.

[76]   I order the respondent to address the classification grievance of Jacques Demers without further delay.

[77]   I confirm the right of the complainant, Mr. Demers, to have his grievance heard and to be represented by his union in this classification grievance.

Sylvie Matteau,
Deputy Chairperson

OTTAWA, August 20, 2004

P.S.S.R.B. Translation