FPSLREB Decisions

Grievances referred to adjudication

[1]   Some of the grievors (see list at the end of the decision) worked as Technical Interpretation Officers in positions (PM-0677) classified at the PM-03 group and level in three locations ( Halifax, Toronto and Saint-John). Some other grievors worked as Enquiries Officers (position PM-1016) before they became Senior Business Services Agents (position PM-0522), at the PM-02 group and level.

[2]   The present decision deals with 52 grievances. Four grievances relate to split duties (Fred Adair, PSSRB File No. 166-34-32299; Gary Caithness, PSSRB File No. 166-34-32302; Claude Lavallée, PSSRB File No. 166-34-32303; and Robert Valcourt, PSSRB File No. 166-34-32304); the reply at the last level of the grievance process considered them to be job description grievances. One grievance is requesting acting pay (Ronald J. MacDonald, PSSRB File No. 166-34-32300) and the reply at the final level of the grievance process is related only to acting pay.

[3]   The Treasury Board was the employer until the creation of the Canada Customs and Revenue Agency (CCRA) on January 11, 1999. The grievors became CCRA employees with the coming into force of the legislation creating the Agency (S.C. 1999, c. 17, s. 91-101). The collective agreements in force and the grievances pending on the date of the creation of the CCRA were continued by effect of the legislation (S.C. 1999, c. 17, s. 101 and Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (the “former Act”), s. 48.1).

[4]   All of the grievances were referred to adjudication as job description grievances relying on Article M-32 of the Master Agreement between the Treasury Board and the Public Service Alliance of Canada or Article 35 of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administration Services Group (Exhibit G-1). The scheduled hearing was postponed many times at the request of the parties, thereby delaying the hearing to January 24, 2005.

[5]   The CCRA submitted a preliminary objection regarding the jurisdiction of an adjudicator to consider the grievances related to acting pay and split duties. That objection was taken under advisement and I will decide on it with the merits of the cases.

[6]   On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the former Act.

Summary of the evidence

[7]   The relevant clauses of the collective agreements read as follows:

[Master Agreement]

ARTICLE M-32

STATEMENT OF DUTIES

M-32.01 Upon written request, an employee shall be provided with a complete and current statement of the duties and responsibilities of his or her position, including the classification level and, where applicable, the point rating allotted by factor to his or her position, and an organization chart depicting the position’s place in the organization.

[Collective Agreement for the Program and

Administration Services Group]

ARTICLE 55

STATEMENT OF DUTIES

55.01  Upon written request, an employee shall be provided with a complete and current statement of the duties and responsibilities of his or her position, including the classification level and, where applicable, the point rating allotted by factor to his or her position, and an organization chart depicting the position’s place in the organization.

[8]   The Interpretations and Services Program (ISP) was founded in 1990 within the Department of National Revenue, Customs and Excise. The ISP has since been modified, because of changes to the workload and re-engineering of the department (Exhibits G-2 and E-1):

Period from 1990 to 1994:

-The Department of National Revenue, Taxation, and the Department of National Revenue, Customs and Excise, are two separate departments.

-The Goods and Services Tax (GST) was one of the responsibilities of the Department of National Revenue, Customs and Excise, and the ISP was assigned to Interpretations Officers (position PM-1015; PM-03 group and level) and to Enquiries Officers (position PM-1016; PM-02 group and level).

-After revisions to the Interpretations Officer position, the job description for position PM-1015 was revised on September 25, 1990.

1995 Administrative consolidation:

-The merging of the two departments resulted in the new Department of National Revenue, Customs, Excise and Taxation.

-Within Client Services, a Business Window Program was created for non-GST services to the clients. The ISP for GST-related services was also put in place and interpretations were given by the Interpretations Officers (PM-03) and the Enquiries Officers (PM-02).

1996-1997: Delineation of information and technical interpretations

-A Technical Interpretation and Services Program (TISP) was created to give technical interpretations and rulings. It was staffed with PM-03 Interpretations Officers and PM-02 Enquiries Officers.

-Some PM-02s were transferred to the Business Window Program, from position PM-1016 to the new position PM-0522.

-A centralization by region was performed for the TISP, which downsized from 55 offices to 10. The implementation of the Harmonized Sales Tax (HST) was assigned to Tax Services Offices with a TISP, over and above their GST workload, bringing more complexity to their Interpretations Officers’ duties.

1998-1999: Re-engineering of the Tax Services Offices

-A GST/HST Rulings Program was structured with Technical Interpretation Teams comprising Senior Technical Interpretation Analysts (STIAs) (position AU-0008; AU-02 group and level) and Technical Interpretation Officers (TIOs) (position PM-0667; PM-03 group and level) supervised by an AU-03 Team Leader (Exhibit E-2).

[9]   The re-engineering of the Tax Services Offices was carried out on January 1, 1999, and the delineation of work between the STIAs and the TIOs was gradually implemented. A TIO casework responsibility was developed by Team Leaders in January 1999, to clarify the criteria for the delineation of work (Exhibit G-4). The main distinction between the two positions is that the STIAs have the responsibility for complex cases and less complex cases are assigned to the TIOs (Exhibits G-5 and G-8). The following chart, used in the Atlantic Region for the delineation of work, specifies that complex work has to be assigned to STIAs and the less complex work to TIOs. The listing of the criteria is as follows (Exhibit G-4):

[10]   Kim McDonah, who testified on behalf of the grievors, stated that she was holding a TIO position. Her grievance, filed under PSSRB File No. 166-34-32311, identified her as performing a PM-02 job. The delineation of work was in use in December 2001, when she acted as a Team Leader (Exhibit E-3). The criteria applied in the Atlantic Region are similar to the ones in the Pacific Region (Exhibit G-4). The following part of an e-mail by Kim McDonah (Exhibit E-3) specifies the difficulty in applying the distinction between the responsibilities of STIAs and TIOs:

. . .

The main distinction between the two job descriptions is the utilization of the term “complex” in the duties of the AU-02. The use of the term complex, in reference to the delineation of workload, is a [sic ] not easy to distinguish in some cases. The more difficult enquiries will be the responsibility of the AU-02 and the basic cases and cases with a certain degree of complexity are the responsibility of the PM-03. In addition to the term “complex”, the AU-02 job description provides that their distinct duties include the responsibility “on the application of taxes within various sectors of the economy for key industry groups (e.g. in areas such as real property, financial services/institutions, oil and gas, imports/exports, transportation and tourism, etc.).

The details of the client service provided by the AU-02 and PM-03 within the unit also differentiates the clientele accountability. That is, the PM-03’s internal client base refers specifically to staff in the PM group and to issues originally handled by PM group staff (i.e. an auditor in a PM job description). However, the AU-02 internal client base refers to officers and managers from AU group, P&L Branch at HQs and as well, Member of Parliament and their staff, and officials from other Departments. Also PM-03s are to serve small to large sized businesses, whereas AU-02 officers are to serve provincial associations, PSBs, governments, and medium-large to very large sized national and multi-national businesses and their representatives (e.g. lawyers, accountants, and other tax professionals).

Nevertheless, to develop a practical framework, the association between the numerous factors and the varying degree of weight that each factor will contribute must be considered on a case-by-case basis as to the degree of complexity . . . .

. . .

[11]   In the day-to-day delineation of work, the Team Leader must determine the complexity of each case and assign it to a TIO if it is less complex and to a STIA if it is in the complex range. On some occasions, a less complex case assigned to a TIO appears to be more complex after evaluation and research are performed. In that circumstance, the TIO work description states (Exhibit G-5):

. . .

Key Activities

. . .

-	Identifies complex cases involving a specialized or complex issue for referral to Senior Technical Interpretations Analyst or for transfer to Headquarters. Consults with Headquarters as needed to discuss and clarify technical issues and/or to solicit or provide information.

. . .

[12]   The Performance Expectations, Review and Appraisal Report completed for Kim McDonah for the period from January 1 to June 30, 1999 (Exhibit G-3) specifies that:

. . .

PART 5 – INDIVIDUAL EXPECTATIONS

Expectations

. . .

4.	To exercise sound judgement in determining during the course of providing rulings or interpretations (orally or in writing) issues that should be referred to another function or working level, and in determining the most appropriate means for such referral.. . .

. . .

[13]   On the issue of referring the more complex cases to a Team Leader for transfer to a STIA, the grievors adduced evidence showing that they have the choice of requesting that the Team Leader transfer the case to a STIA or completing the work themselves. They feel that referring cases to the Team Leader for a transfer to a STIA can be damaging to their performance evaluation, notwithstanding the fact that the TIOs were told that they are not supposed to do complex cases. The TIOs have to prove to their Team Leader that a case has the complexity of a STIA case. If a TIO feels comfortable handling the more complex case, he or she can take it over. The grievors presented evidence to the effect that they normally choose to complete the work whenever they consider the case to be more complex after an evaluation. They concluded that, from 1999 to the date of the grievances, the TIOs have been carrying out STIAs key activities when they provide work in more complex cases. The grievors’ submitted evidence suggesting that they perform the tasks listed under the “complex” column of the delineation chart (Exhibit G-4).

[14]   For its part, the CCRA’s evidence supported the proposition that the delineation on the basis of complexity is not an exact science and that the Team Leaders have to use their own judgement in applying the criteria of delineation for the workload assignment. Guidelines to determine complexity were specified in January 1999 (Exhibit G-4) and delineation frameworks were implemented in each region. Mr. Pun stated that he uses mental delineation to assign the work because he does not have to look at the guidelines to determine the complexity of the cases. In his opinion, the fact that a TIO returns a complex case for reassignment to an STIA will not affect that TIO’s performance appraisal, notwithstanding the general comments to the contrary which were stated at the Excise and GST/HST Ruling Conference held in November 2002 (Exhibit G-14).

[15]   Brian Basden stated that the TIOs appreciate handling complex cases, but they are not required to do so. They have the option of transferring them or handling them if they feel comfortable with them. In cross-examination, he admitted that a third option is available to the TIOs: the complex cases have to be reassigned to a STIA.

[16]   W.J. (Bill) Parker testified that he received performance pay for the period between January 1 and 29, 1999, for which the employer recognized that he handled complex cases assigned to STIAs. He stated that he still performed the same tasks, but that his employer did not want to admit that this was the case. Kathy MacDonald stated that she received acting pay for the period from January 1 to 29, 1999, for which the employer recognized that she performed duties at the AU-2 group and level. Both refused to sign the memorandum of agreement handed to them by the Director of the Hamilton Tax Services (Exhibits G-10 and G-12). They explained that they did not want to sign anything that looked as if they waived any claim of redress relating to the circumstances that resulted in acting pay for the related period.

[17]   The CCRA admitted at the hearing that the grievors performed STIA tasks at the AU-02 group and level during the transition period from January 1 to 29, 1999. After that short period of time, the delineation of work between a TIO and a STIA was carried out by the Team Leaders and the employees were directed to give back complex cases to their Team Leaders for referral to the STIAs or for transfer to Headquarters.

[18]   The CCRA’s reply at the last level of the grievance process as regards the grievances related to the split duties showed that they were considered job description grievances, with respect to positions PM-1015 and PM-0667, but denied the grievances as untimely. Timeliness was really the only point considered by the CCRA. As regards the grievance filed by Ronald J. MacDonald (PSSRB File No. 166-34-32300), the final-level reply considered the issue of substantively performing the duties of a higher classification and acting pay. On that issue, the employer did not accept the grievance, which was considered to be untimely.

Summary of the arguments

[19]   The grievors submitted that the CCRA considered the “split duties” grievances to be job description grievances within the grievances process. The issue of job description was discussed within the grievance process; it is not a new issue before the adjudicator that has taken the CCRA by surprise. The issue of job descriptions must be dealt with by the adjudicator. In the grievance in PSSRB File No. 166-34-32300, in the name of Ronald J. MacDonald, the reference to adjudication was made on the basis of Article M-32 and Article 35 of the collective agreements and should be dealt with as a job description grievance.

[20]   The grievors testified that the CCRA gave them the opportunity to perform more complex cases. The performance appraisal for Kim McDonah stated, for individual expectations, that she must exercise sound judgement during the course of her tasks to determine issues that should be referred to other working levels (Exhibits G-3). Mr. Parker, who testified on behalf of the grievors, filed his performance appraisal to show that he has the knowledge to handle the more complex cases (Exhibit G-13). He testified to the fact that he handled AU-02 complex cases, as did all other TIOs.

[21]   The CCRA recognized, in its evidence at the hearing, that the criteria for delineation of cases vary from one person to another. The criteria regarding complexity are difficult to establish, and the guidelines for determining the complexity are familiar to the Team Leaders, who applied it with their own experience. The TIOs, who find, after evaluation, that a file is a complex case, have the option of handling it; it is up to them to convince their Team Leader that a case should be transferred to a STIA.

[22]   For the grievors, the evidence demonstrated that they handled the more complex cases, and that fact should be taken into consideration in their work description. The grievors are expected to handle the more complex cases and, in so doing, they perform substantially the functions of a higher classification level. In Beauregard et al. v. Treasury Board (Transport Canada), PSSRB File Nos. 166-2-26956 to 26958 (1996) (QL), the adjudicator concluded that the grievors were entitled to acting pay when they performed the duties normally performed by an employee of a higher classification level.

[23]   In the decision rendered in Fok and Stromotich v. TreasuryBoard (Fisheries and Ocean), PSSRB File Nos. 166-2-25912 and 25913 (1995) (QL), the adjudicator concluded that the grievors were entitled to salary protection if they performed the same duties after a reorganization of the department. In Beaulieu et al. v. Treasury Board (FederalCourtof Canada), 2000 PSSRB 76, the adjudicator concluded that the grievors did not have to perform all of the duties of the higher classification to get acting pay, as long as they performed the duties that were requested in the position during the period in question.

[24]   The CCRA submitted that the adjudicator’s authority is limited to considering a grievance that formed part of the grievance process. That principle was established in Schofield v. Canada (Attorney General), 2004 FC 622. Consequently, the adjudicator’s jurisdiction is determined by the terms of the initial grievance and the grievances filed by Fred Adair (PSSRB File No. 166-34-32299), Gary Caithness (PSSRB File No. 166-34-32302), Claude Lavallée (PSSRB File No. 166-34-32303) and Robert Valcourt (PSSRB File No. 166-34-32304) are related to split duties and cannot be considered to be job description grievances at adjudication. The grievance filed by Ronald J. MacDonald (PSSRB File No. 166-34-32300) is related to acting pay and cannot be referred to adjudication as a job description grievance.

[25]   The grievors have the onus of proving that they were required to perform duties that fall outside their work description. The term “complex” is not confusing because it is associated with specific descriptors related to the complexity rating system. Those principles are outlined in Currie et al. v. Canada Customs and Revenue Agency, 2004 PSSRB 75. In the present cases, since January 1999, the employer has reorganized the Technical Interpretation Teams and assigned more specialized staff to handle the more complex files. During the transitional period, for the month of January 1999, the grievors performed tasks at the AU-02 group and level and the employer gave them acting pay. Following that transitional period, guidelines were provided by Headquarters and the Team Leaders were required to proceed with delineation of work between TIOs and STIAs, giving the complex files to the STIAs.

[26]   The evidence submitted by the grievors showed that the complex files required more time to be completed. On very rare occasions, the TIOs could find, after an evaluation of the case, that it was more complex and fell outside their work description. At that time, the work description stated that the more complex cases should be returned to the Team Leader for reassignment to a STIA. One of the options open to a TIO who identifies a complex case in his or her workload is completing the work. This is not done on a regular or ongoing basis because it goes against the work description of the TIO, which states that those complex cases should be referred to a STIA or Headquarters.

[27]   The grievors have the burden of proving that their job description is not a complete and current statement of their duties and responsibilities. They submitted no evidence on what has to be added to the job description so that it may be considered a complete and current statement of their duties. For all of these reasons, the CCRA submitted that the grievances should be dismissed.

[28]   In rebuttal, the grievors submitted that, when the CCRA gave them the option of handling the more complex cases, it went against the policy that a TIO is not supposed to perform STIA duties. The grievances requesting acting pay (PSSRB File No. 166-34-32300), or complaining of splitting duties (PSSRB File Nos. 166-34-32299 and 32302 to 32304), were referred to adjudication as work description grievances and should be heard as such.

Reasons

PSSRB File No. 166-34-32300 (Ronald J. MacDonald)

[29]   The grievance filed by Ronald J. MacDonald (PSSRB File No. 166-34-32300) on November 2, 1999, requests acting pay for the period from April 11, 1992, to December 31, 1998, on the basis of Article M-27 of the Master Agreement. The reply at the last level of the grievance process, signed on February 27, 2003, is related only to acting pay and denies the grievance as being untimely. The grievance was considered to have been presented outside the collective agreement’s 25-day time limit, from the date on which the grievor became aware of the action or circumstances giving rise to the grievance. The grievance was referred to adjudication on May 15, 2003, on the basis of Article M-32 and Article 55 of the collective agreements related to the statement of duties.

[30]   The grievance filed at the first level of the grievance process and the employer’s reply at the last level demonstrated that the dispute related solely to acting pay. No evidence was submitted to show that, in the representations at the different levels of the grievance procedure, issues other than acting pay were submitted and debated between the parties. When the grievor referred the grievance to adjudication on the basis of Article M-32 and Article 55 of the collective agreements as a job description grievance, he referred a new or different grievance to adjudication. This is clearly similar to the situations considered in Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (F.C.A.), and Schofield (supra), and I agree that the conclusions reached in those cases have to receive application in the grievance of Ronald J. MacDonald (PSSRB File No. 166-34-32300). Consequently, I conclude that I am without jurisdiction to hear the grievance referred to adjudication as a work description grievance when that issue was not raised during the grievance process. The grievance in PSSRB Board File No. 166-34-32300 is therefore denied for those reasons.

PSSRB File Nos. 166-34-32299 (Fred Adair), 166-34-32302 (Gary Caithness),
166-34-32303 (Claude Lavallée), and 166-34-32304 (Robert Valcourt)

[31]   These four grievances were filed with the same wording, contesting the employer’s decision to split into two functions the duties that these grievors have been performing since January 1, 1991. The corrective action requested is that their position be reclassified upwards so that they may be permitted to continue their duties without any reduction in responsibilities.

[32]   On February 27, 2003, at the final level, the CCRA replied as follows:

. . .

Decision of management representative / Décision du représentant de la gestion

I have considered the information presented and the points raised by your union representative.

You are grieving that the employer has split the duties you have been performing since January 1991 into two functions and has applied an arbitrary standard which has precluded you from continuing your current duties, thereby resulting in a reduction of your responsibilities and salary. As corrective action, you request that your position be reclassified upwards to permit you to continue your present duties without a reduction in responsibilities. You are seeking amendments to the work description for job PM-0667, PM-03, Technical Interpretation Officer as reflecting the duties you are performing.

The work description you are grieving, PM-1015, PM-03, Technical Interpretation Officer, became obsolete on January 1, 1999 and was replaced by the new job PM-0667. I have considered the work descriptions for jobs PM-1015 and PM-0667 and the proposed amendments to job PM-0667.

I consider that the duties described in PM-1015 and PM-0667 are complete and accurate for the periods of time they cover.

Therefore, I must deny your grievance and I cannot grant the corrective action requested.

. . .

[Emphasis added]

Although the final-level reply to the grievance filed by Gary Caithness was worded differently, it was to the same effect.

[33]   Those grievances were referred to adjudication on May 15, 2003, as job description grievances relying on Article M-32 and Article 55 of the collective agreements.

[34]   The CCRA submitted, in its preliminary objection, that those four grievances cannot be considered by the adjudicator on the basis of the principle stated in Schofield (supra), as follows:

. . .

[10] Pursuant to section 92 of the PSSRA, an Adjudicator’s authority is limited to considering a grievance which formed part of the internal grievance procedures. As stated by Thurlow then C.J. with regards to then section 91(1) of the PSSRA in Burchill v. Canada (Attorney General), 37 N.R. 530 (F.C.A.) at paragraph 5:

..…it was not open to the applicant, after losing at the final level of the grievance procedure the only grievance presented, either to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance complaining of disciplinary action leading to discharge within the meaning of subsection 91(1)…… In our view the applicant having failed to set out in his grievance the complaint upon which he sought to rely before the Adjudicator, namely, that his being laid off was really a camouflaged disciplinary action, the foundation for clothing the Adjudicator with jurisdiction under subsection 91(1) was not laid. Consequently, he had no such jurisdiction.

. . .

[13] At no point did the applicant mention suffering any financial penalty, such as the potential loss of a FSP. In addition, the applicant failed to amend his grievance in order to address the sick leave after it was taken in May and July of 2001. As the Adjudicator’s jurisdiction is determined by the terms of the initial grievance, she did not err in concluding that she was without jurisdiction to consider the grievance pursuant to section 92(1)(b)(I) of the PSSRA, after all there is no reference to financial penalty in the March 17 th, 2001 grievance.

Issue 2. Did the Adjudicator err in concluding that the applicant was not subject to a demotion pursuant to section 92(1)(b)(ii) of the PSSRA?

. . .

[15] In her Reasons at page 4, the Adjudicator stated that she had accepted the respondent’s arguments as to why the Detroit posting was not a demotion. At page 3, these arguments were summarized as follows:

Counsel for the employer summarized his argument by saying that since no financial penalty could be established, the case should come to a shuddering halt. He also stated that there could not be a demotion without loss of pay, that demotion was not alleged in the grievance and that the grievor ought not now be allowed to create a different grievance.

[16] But more to the point, as with the financial penalty discussed above, the applicant had failed to allege during the internal grievance procedure that he had been demoted following his removal from the Dusseldorf position. His grievance was, rather, concerned with his premature removal from the posting and with the mark which it may have left on his professional record. Therefore, the applicant’s arguments are without merit with regards to both subsections 11(2)(f) and (g) of the FAA. The Adjudicator was correct in determining that the issue of a demotion had not been raised in the original grievance, and that, as a result, she had no jurisdiction to entertain it.

. . .

[35]   The final-level replies to the grievances by the CCRA demonstrated that, in the representation made in the grievance process, the corrective action requested by the grievors is on two levels:

[36]   Furthermore, the CCRA stated in its replies at the final level that it considered the work descriptions for positions PM-1015 and PM-0667 to be complete and accurate.

[37]   In those circumstances, I conclude that these grievances can be considered job description grievances requesting amendment to the work description for position PM-0667 (PM-03). Those issues were clearly addressed within the grievance procedure and the CCRA’s reply at the final level convinced me that it accepted a de facto amendment to the wording of the original grievances to include the job description issue and the request for amendment to the work description for position PM-0667.

[38]   The Burchill decision (supra) stated that an adjudicator’s authority is limited to considering a grievance addressed within the grievance process. Considering that the grievors alleged during the grievance process that they were performing duties that were not included in the work description for position PM-0667 (PM-03) and requested amendments to the job description, they are entitled to refer their grievances on those issues to adjudication after the denial at the final level of the grievance process.

[39]   Consequently, the preliminary objection raised by the CCRA on the basis of the principle stated in Burchill (supra) is denied. I will consider the four grievances on their merits as work description grievances.

Merits of the grievances:

[40]   After reviewing every one of the files that are the object of the present decision, I find that the grievors come from two different groups, levels and positions:

-	28 files are related to PM-02 employees who are holding Enquiries Officer (PM-1016) or Senior Business Services Agent (PM-0522) positions;
-	24 files are related to PM-03 employees who are holding Technical Interpretation Officer (PM-1015 or PM-0667) positions.

[41]   No evidence was submitted at the hearing about the Enquiries Officer (PM-1016) or the Senior Business Services Agent (PM-0522) job descriptions or to request modifications to them. Consequently, I have no other alternative than to deny, as not established, all the grievances filed by the PM-02 grievors.

[42]   In relation to the grievances filed by employees holding TIO positions, they are requesting modifications to the PM-0667 work description. All the evidence submitted at the hearing was to demonstrate that TIOs perform complex cases that are normally included in STIAs work description.

[43]   The evidence submitted by the parties demonstrates that, on January 1, 1999, a reorganization of the Technical Interpretations Services Centre was carried out in five regions. Technical Interpretations Services were established in each region, comprised of STIAs and TIOs working under a Team Leader (AU-03 group and level) (Exhibit E-2). The STIA and TIO positions were new ones and new work descriptions were drafted with an effective date of January 1, 1999, for each position:

-	the Senior Technical Interpretations Analyst’s work description (position number AU-008 group and level AU-02) was filed as Exhibit G-8;
-	the Technical Interpretations Officer work description (position number PM-0667, PM-03 group and level) was filed as Exhibit G-5.

[44]   Basically, the two positions provide rulings and technical interpretations, orally and in writing, to internal and external clients on the application of the GST/HST, excise taxes and duties, and on the application of taxes to various sectors of the economy and key industry groups. The main distinction between the two job descriptions is that the complex cases should be handled by an STIA and the less complex ones by a TIO (Exhibits E-3 and G-4).

[45]   The main issue in the grievances is that the grievors allege that they still perform the same duties and assume the same responsibilities in their new TIO position as the ones in their old PM-03 position number PM-1015 (Exhibit G-7). The grievors want to include in their TIO work description that they are handling rulings and interpretations in complex cases.

[46]   The workload was dispatched by the Team Leaders among the STIAs and TIOs using delineation criteria listed in guidelines to determine the complexity of cases drafted at the national level of the CCRA (Exhibit G-4). Those guidelines were applied by the regions, which wrote delineation of work documentation to be applied in the units (Exhibits G-4 and E-3). The delineation of work was done by the Team Leaders on the basis of activities listed as “complex” (for STIAs) and “less complex” (for TIOs) after a cursory evaluation of the cases.

[47]   The evidence demonstrated that, on rare occasions, the TIOs identify complex cases involving a complex issue within their workload. That contingency is included in the key activities listed in the TIO work description and the cases identified as “complex” should be referred to the Team Leader for the purpose of referral to a STIA or to Headquarters (Exhibit G-5):

. . .

-	Identifies complex cases involving a specialized or complex issue for referral to Senior Technical Interpretations Analyst or for transfer to Headquarters. Consults with Headquarters as needed to discuss and clarify technical issues and/or to solicit or provide information.

. . .

[48]   The Team Leader gave the TIOs who found a complex case in their workload the opportunity to handle it. This option conflicts with their work description’s key activities, which state that the complex cases should be referred to STIAs or transferred to Headquarters. It was stated in the CCRA’s evidence that the TIOs received directives to transfer such complex cases to the Team Leader for referral to STIAs or to Headquarters. It was also established that only a slight number of cases were identified as being complex, after evaluation by a TIO.

[49]   I conclude that the TIOs were not required to complete the work in the complex cases that they find in their workload and were clearly directed to transfer these to STIAs or to Headquarters. If the TIOs choose the option of completing the complex cases, they do so on a voluntary basis for developmental purposes or otherwise, and are performing duties not included in their work description.

[50]   These complex cases are not in the TIO work description but within the STIA work description. The grievors’ position that the complex cases be included in the TIO work description would result in voiding the re-engineering of the Tax Services Offices performed by the employer in 1998/1999 and its decision to assign the complex cases to the new STIA position.

[51]   The employer is entitled to manage the workplace, and the re-engineering of the Tax Services Offices is included within his managerial right. I understand that the TIOs who handled all the cases, including the complex ones, before the January 1, 1999 modifications to their work description, felt deprived of an interesting and challenging part of their duties that became the task of a higher classification position after that date. The employer did not violate the collective agreement when it decided to entrust the duty of answering the complex cases to STIAs, but exercised its managerial rights of assigning the work to be done to employees of his choice.

[52]   The decisions rendered in Beauregard (supra) and Beaulieu (supra) cannot receive application in the present cases, which are not related to acting pay grievances. The grievors (TIOs) did not suffer loss of salary or declassification when their responsibilities were modified by the new job description on January 1, 1999, and the decision rendered in Fok and Stromotich (supra) cannot receive application in the present cases.

[53]   I did not consider the fact that the employer denied as untimely five grievances filed by TIOs and five grievances filed by Enquiries Officers (or Senior Business Services Agents). No evidence other than the replies of the employer in these files was presented to me and no arguments were submitted on the issue of timeliness. It is not necessary to decide on that issue, all the grievances being denied on the merit.

[54]   For all of the above reasons, I make the following order:

Order

[55]   The grievances filed under the names of Fred Adair (PSSRB File No. 166-34-32299), Gary Caithness (PSSRB File No. 166-34-32302), Claude Lavallée (PSSRB File No. 166-34-32303) and Robert Valcourt (PSSRB File No. 166-34-32304) were properly referred to adjudication as work description grievances.

[56]   The grievance in the name of Ronald J. MacDonald (PSSRB File No. 166-34-32300) is denied.

[57]   All the other grievances referred to adjudication as job description grievances (i.e. all grievances other than that of Ronald J. MacDonald, PSSRB File No. 166-34-32300) are also denied.

August 24, 2005.

Léo-Paul Guindon,
Adjudicator

List of Grievors