FPSLREB Decisions

Grievance referred to adjudication

[1]   In his grievance of April 25, 2003, Camille Gaston Pomerleau grieved his employer’s refusal to recognize the length of his previous service in Nicaragua for the purpose of calculating the Foreign Service Premium to which he was entitled for his assignment in Honduras since August 2001. In Nicaragua he had worked for the Canadian International Development Agency (CIDA) under the Interchange Canada program. He requested that the amount of his Foreign Service Premium be recalculated retroactive to August 2001.

[2]   The grievance concerns the application of Foreign Service Directive 56 (FSD 56). The National Joint Council of the Public Service of Canada (NJC) Executive Committee met to review Mr. Pomerleau’s grievance on May 5, 2004. On May 12, 2004, it informed the parties that it had reached an impasse. The grievance was referred to adjudication on June 16, 2004.

[3]   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, this reference to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35.

Summary of the evidence

[4]   The parties filed the following Agreed Statement of Facts and a number of attached documents (Annexes “A” to “N”):

[Translation ]

. . .

(1)	The grievor, Camille Pomerleau, is an environmental specialist (a member of the PC Group, whose position is classified as PC-05) and is employed by the Canadian International Development Agency (CIDA) in Tegucigalpa, Honduras.
(2)	Mr. Pomerleau has been employed by CIDA since January 6, 1992. Between January 6, 1992, and November 1996, he worked at CIDA in Hull (now Gatineau), Quebec.
(3)	In November 1996, Mr. Pomerleau accepted an assignment to a host organization in Nicaragua under the Interchange Canada program. Sponsored by the Treasury Board as employer, the Interchange Canada Program was, at the time of Mr. Pomerleau’s grievance, administered by the Public Service Commission and by the departments. Interchange Canada is the only program permitting exchanges between the federal Public Service and outside organizations. Program objectives include support for employee development and improving Public Service access to specialized knowledge, diverse skills, technology and best practices (Annex A – Interchange Canada Policy). The assignment began on November 4, 1996 and, initially, was to last for two years. However, the initial assignment was extended and finally came to an end on July 31, 2001 (Annex B – Interchange Canada - memorandum and extensions). Throughout the assignment and in keeping with the Interchange Canada Policy and the guidelines issued by the Public Service Commission of Canada (Annex C – Interchange Canada Operating Guidelines), Mr. Pomerleau retained his status as a federal public service employee and his salary was paid by CIDA and fully reimbursed to CIDA by the host organization, CRC/Sima Inc.
(4)	In a letter dated October 26, 1996, (Annex D) pursuant to the Foreign Service Directives (FSDs), Mr. Pomerleau informed his union representative from PIPSC, Michel Paquette, that he waived the FSDs provisions because equivalent benefits were given to those participating in this international program by the Danish organization (DANIDA), which was the project’s primary donor agency. The representative (Michel Paquette) indicated his agreement with the request.
(5)	In August 2001, having returned to CIDA, Mr. Pomerleau accepted a new assignment abroad, this time as a CIDA co-operant. FSDs provisions and allowances applied on a mandatory basis to this assignment.
(6)	In a letter to Suzanne Delisle on September 17, 2001, (Annex E), Mr. Pomerleau asked that his employer take into account the months that he had worked for the host organization between November 4, 1996, and July 31, 2001, for the purpose of calculating his Foreign Service Premium for his current assignment.
(7)	On September 20, 2001, Suzanne Delisle replied to Mr. Pomerleau’s request, indicating that “Unfortunately, the TB’s (Treasury Board) answer is “no”.” (Annex E). Dissatisfied with the answer that he had received, Mr. Pomerleau continued with his administrative approach. In the spring of 2002, he raised the issue with his manager, Paul Chambers, and also spoke of it at a meeting of the work team. On April 25, 2002, an assistant of Mr. Chambers, Jean-Bernard Parenteau, sent a memorandum about it to Stan Moore, [Director, Policy, Planning and Management Directorate - Americas] , requesting his support and advice. Without naming him, the memorandum clearly raised the case of Mr. Pomerleau (Annex F). At the end of 2002, Mr. Pomerleau was told not to expect a response to this approach.
(8)	At the end of 2002, Mr. Pomerleau reiterated his September 17, 2001 request to CIDA’s Director General, Human Resources, Francine Desjardins.
(9)	On December 23, 2002, following the intervention of the Director General, Human Resources, Suzanne Delisle wrote to Mr. Pomerleau again referring him to the reply that she had sent to him on September 20, 2001 (Annex G).
(10)	On September 27, 2002, and on April 13, 2003, Mr. Pomerleau sent additional messages to Suzanne Delisle regarding the calculation of his Foreign Service Premium. In his message of April 13 (Annex G), Mr. Pomerleau provided explanations for the finding by the Treasury Board representative who had written: “The next logical step for this employee would be a demand for retroactive money to match the points.” Mr. Pomerleau reiterated that all he had ever asked for was to have his years of experience in Nicaragua when he was employed by the federal government recognized for the purpose of calculating his Foreign Service Premium for his current assignment in Honduras. In a message dated April 14, 2003, Suzanne Delisle reiterated the position taken by the Treasury Board and the department on September 20, 2001 (Annex G).
(11)	On April 25, 2003, Mr. Pomerleau presented his grievance (Annex H).
(12)	On August 18, 2003, the departmental liaison officer responded to the grievance at the second level of the grievance process ((Annex I).
(13)	On August 25, 2003, Mr. Pomerleau’s grievance was referred to the National Joint Council of the Public Service of Canada (NJC) (Annex J).
(14)	On May 12, 2004, the NJC Executive Committee issued its decision, indicating that there was an impasse (Annex K).
(15)	It should be noted that the FSDs form part of the collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada, Applied Sciences and Engineering bargaining unit that includes the PC group to which Mr. Pomerleau belongs.
(16)	The Introduction to the FSDs (Annex L), Part I – General – FSD 3 – Application (Annex M) and Part VIII – Allowances and related provisions – FSD 56 – Foreign Service Incentive Allowances (Annex N) of the Foreign Service Directives contain the provisions that are relevant to Mr. Pomerleau’s grievance.

. . .

[5]   The grievor testified about the circumstances surrounding the facts described in the above Agreed Statement and, in particular, the agreement negotiated in November 1996 concerning his assignment to Nicaragua, his understanding of the waiver he had given at the time with regard to FSD 56 and his informal efforts over a number of months.

[6]   Mr. Pomerleau explained that, since his assignment to Honduras, the sole purpose of his efforts was to have his previous service in Nicaragua recognized for the purpose of calculating his Foreign Service Premium in the new assignment.

[7]   According to Mr. Pomerleau, his waiver of the application of the Foreign Service Directives when he was assigned to Nicaragua was only partial. His waiver applied only to the accounting for and reimbursement of the expenses and allowances or benefits for service abroad during his service in Nicaragua. It was never meant to apply to the service he had accumulated outside Canada for the purpose of calculating his Foreign Service Premium on future assignments.

[8]   According to the grievor, his efforts to obtain the recognition of his Nicaraguan service began in September 2001. He did not file a grievance at that time since, in his view, it was more appropriate to try to resolve the problem without recourse to this process. He had thought from the outset that the employer did not seem to understand the nature of his request. Mr. Pomerleau made it clear that his efforts had never been aimed at seeking a reimbursement or a retroactive readjustment of the amounts or allowances to which he would have been entitled when he was assigned to Nicaragua. Like the grievance before us, these efforts were exclusively aimed at securing recognition of his previous service in Nicaragua for the purpose of calculating his Foreign Service Premium for his current assignment. The information that he had received in September 2001 did not answer his real question to the employer.

[9]   According to Mr. Pomerleau, the employer had never made the distinction between reimbursement of expenses and payment of allowances and benefits under the Foreign Service Directives for an assignment, on the one hand, and recognition of previous service for the purpose of another assignment, on the other hand. According to Mr. Pomerleau’s reading of the Foreign Service Directives, these aspects could be separated. That was his understanding of these provisions in 1996 when he issued the waiver.

[10]   FSD 56, which, in his opinion, had never ceased to apply to the calculation of his years of service when he was assigned to Nicaragua, reads as follows:

FSD 56
Foreign Service Premium

Introduction

The Foreign Service Premium is a tax-free allowance provided as an incentive to foreign service and as such recognises that there are disutilities and disincentives, some of which may be financial, resulting from service outside Canada. The premium varies according to the employee’s salary group, family status and service outside Canada and is payable to employees to whom the Foreign Service Directives apply in accordance with Directive 3, Application.

Directive 56

. . .

56.02

(a) In accordance with this directive, the deputy head shall authorize the payment of a Foreign Service Premium to an employee calculated in accordance with the Appendices to this directive, on the basis of the employee’s salary group, family status and service outside Canada.

. . .

[11]   According to the grievor, it was in April 2003 that he finally realized that his efforts had led to an impasse. His last correspondence with Francine Desjardins, Director General, Human Resources, CIDA, was dated April 13, 2003. It was then that Mr. Pomerleau contacted his union representative and filed his grievance ten days later, on April 25, 2003.

Summary of the arguments

Preliminary objection

[12]   In a letter dated June 30, 2005, the employer objects that the grievor did not file his grievance within the time limit set up in clause 35.10 of the collective agreement signed on December 21, 2000 between the Treasury Board and the Professional Institute of the Public Service of Canada for the Applied Science and Engineering Group. Clause 35.10 of the collective agreement reads as follows:

35.10 An employee may present a grievance to the first step of the procedure in the manner prescribed in clause 35.03, not later than the twenty-fifth (25 th) day after the date on which the employee is notified orally or in writing or on which the employee first becomes aware of the action or circumstances giving rise to the grievance.

[13]   However, the employer submits that the grievor had been told in an e-mail from Suzanne Delisle on September 20, 2001 that his assignment to Nicaragua under the Interchange Canada program would not be recognized for the purpose of calculating his future Foreign Service Premium. The second-level reply to his grievance stated that the grievance was untimely (Annex I).

[14]   The employer contends that the grievor was aware of the action or circumstances giving rise to his grievance by September 20, 2001, and that he could not rely on his subsequent efforts, resulting from his impression of not having been given the correct answer to his question, to extend the time limit for presenting his grievance. The information sent to him by Ms. Delisle in September 2001 (Annex G, page 4), was very clear: [translation] “Unfortunately, the TB’s answer is “no” ….” The answer of the Treasury Board included the following: “There is no way an employee can be credited for FSP points which he/she did not receive ….” It should be noted that Ms. Delisle suggested in this e-mail that the grievor present a grievance.

[15]   Finally, the employer submits that the fact that the grievance was referred to the NJC and that it reviewed the matter is not binding on an adjudicator, notwithstanding the timeliness issue.

[16]   In support of its argument, the employer submitted a number of decisions of the Board: Enns v. Treasury Board (Correctional Service of Canada), 2004 PSSRB 171; Wyborn v. Parks Canada Agency, 2001 PSSRB 113; Wilson v. Treasury Board (Solicitor General of Canada – Correctional Service), PSSRB files 166-2-27330 and 149-2-165 (1997) (QL); Rouleau v. Canadian Forces, Staff of the Non-Public Funds, 2002 PSSRB 51; and Gray v. Treasury Board (Revenue Canada – Customs, Excise and Taxation), PSSRB file 166-2-28685 (1999) (QL). The employer maintains, as these cases require, that it had raised the timeliness issue in a timely fashion and had not withdrawn it. The case law submitted confirms that the time limit began to run from the moment that the grievor had knowledge of the circumstances giving rise to the grievance. The grievor had to act diligently, which was not the case here, in view of the harm that such a situation could cause the employer.

[17]   In response to this objection, the grievor maintains that he successfully argued the issue of timeliness before the NJC. He made this argument again in writing on July 5, 2005.

[18]   According to Mr. Pomerleau, the NJC rejected the employer’s objection that the time limit for presenting a grievance had not been met and chose to hear Mr. Pomerleau’s grievance at a hearing that took place on January 27, 2004. The NJC subsequently issued a decision on the merits on May 12, 2004. According to the grievor, the matter is res judicata and he can refer the NJC’s negative decision to adjudication.

[19]   According to the grievor, he was not informed in writing of the employer’s response to his real request concerning the calculation of his Foreign Service Premium until April 14, 2003 (Annex G), and not in 2001, contrary to the employer’s contention. Recognizing that information was provided to him on September 20, 2001, Mr. Pomerleau maintains, however, that it was not this decision that was the subject of this grievance. In fact, that response explained: “The next logical step for this employee would be a demand for retroactive money to match the points” [Annex G]. However, Mr. Pomerleau had never intended to claim a reimbursement of his expenses or payment of the allowances provided for in the Foreign Service Directives in respect of the period when he was assigned to Nicaragua.

[20]   Dissatisfied with the employer’s response, which pointed to a lack of understanding of his request, Mr. Pomerleau continued with his internal efforts and attempted to explain his request and obtain a reply to his real concerns. In the context of the current initiatives in the federal Public Service, the grievor should not be criticized for his attempts to obtain an amicable solution, and such efforts should not cause him to lose a right.

[21]   Despite his many efforts, the employer’s response in April 2003 confirmed to Mr. Pomerleau that his request had still not been understood. He immediately contacted his union representative and presented his grievance. Accordingly, the time provided for by clause 35.10 of the collective agreement did not start to run until April 14, 2003, the date of the employer’s final reply.

Reasons

[22]   Concerning the employer’s preliminary objection, the issue is to determine when did the 25-day time limit in clause 35.10 of the collective agreement began to run. Was it on September 20, 2001, the date of Ms. Delisle’s first reply to Mr. Pomerleau’s request, or was it on April 14, 2003, the date when the grievor said that he received the employer’s final reply?

[23]   In accordance with the wording of clause 35.10 of the collective agreement, I must determine when Mr. Pomerleau was informed of the action or the circumstances giving rise to the grievance.

[24]   The evidence is that the grievor had knowledge of the employer’s response by September 12, 2001 and that, from the wording of this response, he should reasonably have understood the employer’s position. The communication from Ms. Delisle is as clear as it can be: [translation] “Unfortunately, the TB’s answer is “no” ….” “There is no way an employee can be credited for FSP points which he/she did not receive ….” This is clearly a reply to his request to have his prior service recognized under the Foreign Service Directives and not to a request for the payment of allowances or other amounts. At this point, the grievor should have reacted, regardless of whether he believed that his real question was not being answered. The recognition of his prior service was at issue from that time on, regardless of whether the employer may have alluded to other amounts (reimbursement of expenses, etc.) in the same communication.

[25]   If he had filed a grievance within 25 days after that date, Mr. Pomerleau could still have tried to explain his request on an informal basis and to make his arguments in connection with his partial waiver of the Foreign Service Directives. Unfortunately, he did not present a grievance at that time and, therefore, he did not protect his rights. In the event that his informal efforts were not successful, as indeed happened, he could no longer pursue the formal dispute resolution procedure, in this case, a grievance.

[26]   What was referred to adjudication was the grievance presented by Mr. Pomerleau and not the decision of the NJC. The latter is not binding on an adjudicator. The fact that Mr. Pomerleau’s grievance may have been reviewed by the NJC, apart from the question of whether the grievance was presented in a timely fashion, is not binding on the adjudicator.

[27]   I would like to deal with the grievor’s argument that he should not suffer as a result of his attempt to resolve the situation informally. It is clear to me that no one, whether the employer or the employee, should be criticized for taking this approach. Informal dispute resolution is to be encouraged at all levels. However, this approach coexists with the formal dispute resolution procedures.

[28]   Where a right to a formal process exists and is subject to prescriptive extinction, the wiser course will always be to take the informal route only after having secured that formal right. These two approaches coexist quite comfortably as long as one is not employed to the detriment of the other. The informal systems put in place under the Public Service Modernization Act and the systems that were already in place specifically recognize this procedural aspect and the importance of protecting the parties’ rights. Provision is made for suspending the formal process. A party cannot be criticized for resorting to the formal process to protect its rights.

[29]   In view of the evidence before me and the case law submitted, I must allow the employer’s objection and declare the grievance untimely.

[30]   For these reasons, I make the following order:

Order

[31]   The grievance is dismissed.

September 23, 2005.

Sylvie Matteau,
adjudicator