FPSLREB Decisions

[1]   Mr. Guy Lajoie is employed by the Correctional Service of Canada and has worked at the Archambault Institution since 1985.

[2]   On December 22, 2003, adjudicator Jean-Pierre Tessier rendered a decision with regard to the fact that Mr. Lajoie performs duties of a higher classification in an acting capacity.

[3]   This decision, Lajoie v. Treasury Board (Solicitor General Canada – Correctional Service), 2003 PSSRB 117, reads in part as follows:

…

In light of the above, I allow the grievance and instruct the employer to pay Mr. Lajoie a salary equivalent to a CX-02 position held in an acting capacity beginning 25 days prior to the grievance of July 15, 2000.

[4]   Considering that the employer has not given effect to this decision, on February 4, 2004, the employee filed a complaint under section 23, asking the Public Service Staff Relations Board (the Board) to take action as required in order to give effect to the decision.

[5]   Paragraph 23(1)(c) of the Public Service Staff Relations Act (PSSRA) provides as follows:

23. (1) The Board shall examine and inquire into any complaint made to it that the employer or an employee organization, or any person acting on behalf of the employer or employee organization, has failed

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(c) to give effect to a decision of an adjudicator with respect to a grievance;

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[6]   The complaint was heard on March 8, 2005, in Montréal.

The facts

[7]   At the beginning of the hearing, the employer objected to the fact that the Board had designated Jean-Pierre Tessier, Board Member, to hear the present complaint. According to the employer, the designated Board Member would be in conflict of interest because he was to rule on the implementation of a decision he himself rendered.

[8]   The objection was taken under advisement until the parties had presented their arguments on the matter and submitted case law.

[9]   With regard to the complaint itself, the employee stated that, following the decision, he received a cheque from the employer corresponding to the acting pay, for the period beginning 25 days prior to the grievance and ending on the date of the grievance. The cheque has not been cashed.

[10]   The cheque (Exhibit D-1) covers the period from June 12, 2000, to July 14, 2000.

[11]   The employee received no other amount from the employer and argued that he still performs the same duties.

Arguments by the parties

[12]   The employee argued that occupying a position in an acting capacity is something that is ongoing. By means of his grievance, he wanted to emphasize to the employer that he was being entrusted with duties of a higher level and that, from the time he started performing these duties and throughout the period during which he continues to perform them, he must be paid at a higher level. In his opinion, the grievance covers the present and extends to the future.

[13]   For its part, the employer argued that it did implement the decision since, in its opinion, the adjudicator did not indicate the end of the acting period. The only logical explanation is that the end of that period is the date the grievance was lodged.

[14]   According to the employer, the 2003 decision does not take into consideration evidence adduced after the grievance was lodged on July 15, 2000. Without that evidence, the adjudicator cannot assume that the employee performed duties of a higher level. Furthermore, the adjudicator does not have the authority to take into consideration facts occurring after the grievance, as the Supreme Court ruled in Compagnie minière Québec Cartier v. United Steelworkers of America, Local 6869, [1995] 2 S.C.R. 1095.

[15]   In a subsidiary argument, the employer argued that clause 48.07 of the collective agreement provides that employees shall be paid acting pay for the duration of the acting period. Thus this period is fixed, not ongoing. The only logical way to interpret the adjudicator's decision is to apply a fixed period. Referring to an ongoing period could be equivalent to classifying the employee at a higher level in future; however, the adjudicator does not have jurisdiction to determine classification.

Reasons for decision

[16]   In ruling on the objection by the employer with regard to the issue of conflict of interest, we must refer to the wording of the PSSRA:

97. (6) The Board may, in accordance with section 23, take such action as is contemplated by that section to give effect to the decision of an adjudicator on a grievance but shall not inquire into the basis or substance of the decision.

[17]   The decision the Board is called upon to render under subsection 97(6) is quite separate from the decision by the grievance adjudicator.

[18]   On this point, in Public Service Alliance of Canada v. Treasury Board, Board File No. 161-2-703 (1993) (QL), Chairperson (then Deputy Chairperson) Yvon Tarte expresses himself as follows at page 6:

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On the merits of the case I must make it clear as I did in the "Phillips" decision (supra) that it is not within my jurisdiction or responsibility to decide whether or not the adjudicator's decision which is the subject of this section 23 complaint was correct. Subsection 97(6) of the Public Service Staff Relations Act (set out below) is very clear in its direction to the Board that it must not inquire into the basis or substance of an adjudication decision during its examination of a complaint relating to that decision.

97. (6) The Board may, in accordance with section 23, take such action as is contemplated by that section to give effect to the decision of an adjudicator on a grievance but shall not inquire into the basis or substance of the decision.

This is to be contrasted with the Board's power to review, rescind, amend, alter or vary any of its own decisions under section 27 of the Act. If Parliament intended the same power of review to be available with regard to adjudication decisions it could easily have added language to that effect.

…

N.B.: " Phillip s" refers to Public Service Alliance of Canada v. Treasury Board (Board File No. 161-2-693).

[19]   The fact that the Board Member responsible for ruling on the complaint is the same person who ruled on the grievance does not place him in conflict of interest, since his role is governed by the wording of section 97 and he may not inquire into the basis or substance of that decision.

[20]   In Re Emerald Transport, [2000] CIRB no. 91 (QL), the Canada Industrial Relations Board dismisses a motion to disqualify and finds that no reasonable apprehension of bias exists because a Board Member who has recently rendered a decision involving parties hears a new complaint between the same parties.

[21]   On numerous occasions, the Board has given a Board Member responsibility for ruling on a complaint of failure to give effect to a decision that the same person rendered as an adjudicator. Reference may be made to the following cases in particular: Pellicore v. Treasury Board, 2001 PSSRB 96; Vaughn v. Treasury Board (Public Works and Government Services Canada) (Board File No. 166-2-28296) (1999) (QL) ; Professional Institute of the Public Service of Canada v. Treasury Board (Agriculture Canada) (Board File No. 161-2-692) (1993) (QL) ; and Coughtry v. Treasury Board (Fisheries and Oceans), 2000 PSSRB 72.

[22]   Accordingly, I dismiss the objection by the employer.

[23]   With regard to the merits of the present case, I note two factors. First, the employer argues that the decision cannot have effect following the date of the grievance and that, if that were the case, the parties should have been asked to adduce evidence on this point. Secondly, the employer argues that not limiting the acting period is equivalent to classifying the employee at a higher level.

[24]   The decision to which the employee asks that effect be given indicates as follows.

1. The adjudicator determined that Mr. Lajoie:

   …

   … performs duties similar to those of his other two colleagues holding positions classified as CX-02 and who work within the framework of a two-year slow rotation at the visits and correspondence service.

   …

   Mr. Lajoie trains new arrivals at the visits and correspondence service and performs the same tasks they do; he should, therefore, in an acting capacity, receive the same pay as required by article 48.07 of the collective agreement.

   In light of the above, I allow the grievance and instruct the employer to pay Mr. Lajoie a salary equivalent to a CX-02 position held in an acting capacity beginning 25 days prior to the grievance of July 15, 2000.

[25]   The grievance hinges on clause 48.07 of the collective agreement, which is worded as follows:

48.07 When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least one (1) working day, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts,

[26]   The adjudicator determined that Mr. Lajoie was a person described in clause 48.07. He determined that the acting period started in June 2000, 25 days prior to the date the grievance was filed on July 15, 2000.

[27]   The decision does not specify the date the acting period ends; a reading of the text of the decision does not indicate that there were any discussions on this point.

[28]   The employer decided that the end of the acting period is the date of the grievance. It argued that the adjudicator was obliged to determine an acting period. According to the employer, an interpretation that the effect of the adjudication decision was ongoing would be illegal since it would mean that the adjudicator's decision would effectively classify the employee at a higher level.

[29]   I cannot accept that interpretation, because clause 48.07 deals specifically with appointment to a position at a higher level. What is involved is not considering that the employee holds a higher classification, but paying him as if he had been appointed to that level. Thus, there is an ongoing effect.

[30]   On a subsidiary point, I must add that the employer's position is equivalent to saying that the right to apply clause 48.07 would cease once a grievance was filed, and that in order to benefit from acting pay, one would have to lodge a grievance every 25 days. Such an interpretation would have a negative effect and would run counter to the context of labour relations.

[31]   On the basis of Compagnie minière Québec Cartier (supra), the employer argued that, in the absence of subsequent-event evidence, the adjudication decision may not be given effect beyond the date of the grievance.

[32]   I cannot accept that allegation since, in Compagnie minière Québec Cartier (supra), the Supreme Court prohibited adjudicators ruling on a grievance from relying on events occurring after the grievance. In the present case, the adjudicator rules that, beginning at the time of the grievance, Mr. Lajoie performed duties of a higher level and should have the benefit of clause 48.07 of the collective agreement.

[33]   The adjudicator did not determine the end of Mr. Lajoie's acting period. Thus, the Board may not act for him in determining that date.

[34]   However, the adjudicator indicated that Mr. Lajoie was entitled to receive the same pay as his co-workers, as clause 48.07 of the collective agreement requires. Since the essence of the dispute was resolved by the decision, it is the employer's responsibility to apply clause 48.07.

[35]   Accordingly, I instruct the employer to apply clause 48.07 of the collective agreement in accordance with the adjudication decision, and to pay Mr. Lajoie acting pay during the acting period beginning on the date he began to perform these duties, that is, June 12 , 2000, as if he had been appointed to this higher level.

Jean-Pierre Tessier,
Board Member

OTTAWA , March 31, 2005.

P.S.S.R.B Translation