FPSLREB Decisions

I. Grievances referred to adjudication

1 When he filed his grievance, René Lamy was a project manager (AR-05) in the Department of Public Works and Government Services (“the DPWGS”). He filed his grievance on December 23, 2003, stating the following: “[translation] I grieve the decision dated December 10, 2003, concerning the effective date of my AR-05 reclassification.” As a corrective measure, he requests that “[translation] … my compensation and other benefits be adjusted retroactively to October 1, 1995, the date as of which I have been performing the duties of an AR-05 position.” He presented his grievance up to the final level of the grievance process without obtaining satisfaction.

2 When he filed his grievance, Francis Pichon was a technical capital-asset advisor (EN-ENG-04) in the DPWGS. He filed his grievance on December 23, 2003, stating the following: “[translation] I grieve the decision dated December 10, 2003, concerning the effective date of my EN-ENG-04 classification.” As a corrective measure, Mr. Pichon requests that “[translation] … my compensation and other benefits be adjusted retroactively to October 1, 1995, the date as of which I have been performing the duties of an ENG-04 position.” He presented his grievance up to the final level of the grievance process without obtaining satisfaction.

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, these references 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 (PSSRA).

4 Mr. Lamy and Mr. Pichon (“the grievors”) referred their grievances to adjudication on May 26, 2005.

5 The parties were unavailable for a hearing on these matters before November 6, 2007. However, before the hearing, they did attempt to settle the grievances through mediation but were unsuccessful.

II. Summary of the evidence

6 Both grievors testified, and the employer called a witness. The parties filed 27 exhibits.

7 The grievors submitted into evidence the collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada for the Applied Science and Engineering Group bargaining unit dated December 21, 2000 (“the 2000 collective agreement,” Exhibit P-1). They also entered into evidence the subsequent collective agreement between the same parties for the same bargaining unit, dated September 26, 2003 (“the 2003 collective agreement,” Exhibit P-2). The 2003 collective agreement contains more or less the same terms and conditions as the 2000 collective agreement.

8 Mr. Lamy testified first. He has been a project manager in the Department of Indian Affairs and Northern Development (DIAND) since October 2006. From April 1987 to October 2006, he was a project manager at the DPWGS in a section dedicated to the DIAND. Before that he was a project manager at the DIAND.

9 Mr. Lamy explained that in 1992, the federal government decided to give Aboriginal communities more responsibilities and more involvement in projects that affected them. The government adopted the “informed client” principle. The desire was to “facilitate” instead of to “do,” thus giving Aboriginal communities the opportunity to take charge. To that end, a technology-transfer program was implemented, and a devolution committee and band councils were formed. The transfer of responsibilities began in April 1995.

10 Starting in 1995, project managers had less direct contact with Aboriginal communities. The project managers provided band councils with technical services and kept an eye on project development to ensure that established parameters were observed. The government continued to be responsible for the budget, and project mangers continued, with Aboriginal communities, to be responsible for completing projects. That is still true today.

11 Mr. Lamy described his work. The DPWGS has a construction budget for Aboriginal communities that funds the construction of schools, administrative offices, daycare centres, community garages and other community buildings. When the DPWGS decides to erect a building, Mr. Lamy works with the band council to define the required budget. Mr. Lamy must ensure that the budgets that he manages stay within the approved limits during the various construction phases. A project can last one or two years, depending on its scope.

12 Mr. Lamy added that before 1995 he wrote terms of reference, defined projects, prepared invitations to tender and selected project consultants. After 1995, those responsibilities were transferred to the band council. The band council would choose the consultant, although Mr. Lamy did sit on the selection committee and retained legal authority over the choice of consultant. The band council would also decide how to run projects and would manage the call for tenders. The band council would submit a business plan to the DPWGS, but Mr. Lamy could reject it if it did not meet the DPWGS’ criteria.

13 Mr. Lamy explained that in 2001, as part of the “Universal Classification Standard” (UCS) implementation, he was asked for feedback on a new work description, entitled “[translation] 1290048A Integrator - Consultant - PM - Officer” (Exhibit P-8). He responded that he disagreed completely with the contents of the proposed work description. The description stated on page 2 that one of the main activities of the position was “to help develop contracts … .” That was incorrect, according to Mr. Lamy. He did not help develop contracts; he drafted and created them. The description used the title “Officer,” but he was not an officer. Furthermore, the description of duties was different from that given to his Real Estate Services counterparts in other regions who were classified at the AR-05 and EN-ENG-04 groups and levels and who had the same responsibilities and performed the same tasks as he did. Their work descriptions used the title “Analyst.”

14 Mr. Lamy further stated that after one year of discussion, the DPWGS gave him a new work description in November 2001 entitled “[translation] 0212105A Project Officer (Consultant (PM) / Analyst - Integration)” (Exhibit P-9). The department told him that management had decided to standardize the work descriptions and position levels across all regions for all advisors in Real Estate Services.

15 Mr. Lamy also stated that he knew in May 2002 that the DPWGS was abandoning the UCS. On June 20, 2002, Mr. Lamy, together with Mr. Pichon and another co-worker, Guy Courtois, wrote to Richard Gingras, DIAND CSU Regional Director for Quebec, to request that Mr. Lamy’s position level be increased from AR-04 to AR-05 and Mr. Pichon’s from EN-ENG-03 to EN-ENG-04 (Exhibit P-7). All three asked Mr. Gingras to comply with management’s decision to standardize position levels across Canada for all DIAND units in Real Estate Services. They also mentioned that the work descriptions of their counterparts in other regions could be used for the reclassification.

16 Mr. Lamy said that he and Mr. Pichon were given a questionnaire intended to help in reclassifying their positions. They were told that they could go back three years in describing their duties. Mr. Lamy therefore described projects dating back to 1998.

17 Mr. Lamy stated that he had not made any previous formal requests for reclassification, but he had said during annual performance appraisals that he wanted his position to be reclassified so that he could catch up to engineers who were paid more for the same work. The last time he discussed the matter with his supervisor, aside from the discussions in 2002 and 2003, was in 1999.

18 Under cross-examination, Mr. Lamy stated that his grievance dealt with the retroactive period with greater pay. He wanted that period to start earlier.

19 In response to another question from the employer, Mr. Lamy said that he was grieving the effective date of the new classification. He had been performing the duties in question well before 2002.

20 Mr. Pichon also testified. He described his work history. In 1994, he was an engineer, classified EN-ENG-03. In July 1994, he accepted an acting appointment as a project management engineer, classified EN-ENG-04, in a DPWGS unit working for the DIAND. It was then decided that the position should be filled permanently. Mr. Pichon applied for the position, but it was never filled. Instead, its classification was lowered to EN-ENG-03. At the same time, Mr. Pichon’s substantive position was removed. After that position was removed, Mr. Pichon was declared surplus and was given priority entitlement for the position newly classified EN-ENG-03. He exercised his priority entitlement, and he was appointed to the position in 1995. He is currently working as a DIAND project management engineer, classified EN-ENG-04.

21 Mr. Pichon testified that he has been doing, and continues to do, the same work as Mr. Lamy, but as an engineer. He has been doing the same work since 1994. He deals with infrastructure, for example the construction of roads, water mains, sewers and waste-treatment plants. He ensures that work is done in accordance with trade practices and recognized standards and within acceptable time frames and budgets.

22 Mr. Pichon added that he acted as an advisor. He made recommendations to the band council. If the band council did not follow his recommendations, it risked not receiving the funds required for construction.

23 Mr. Pichon stated that in 1994, he drafted the terms of reference for projects and submitted them to the band council. After band councils were put in place in 1994, the band council drafted the terms of reference and submitted them to Mr. Pichon for feedback.

24 Mr. Pichon went on to say that the consultant studies the project and proposes solutions. Mr. Pichon then checks the proposed solutions with the consultant and the band council. The consultant also sets a budget that can span a number of years. Mr. Pichon studies the technical aspects of the proposed solutions. He arranges to get the required approvals. The approvals consider his recommendations.

25 Mr. Pichon testified that depending on the complexity of the construction project, the band council, consultant and builder hold various meetings. Mr. Pichon attends those job-site meetings so that he can confirm to the DPWGS that construction is proceeding as planned. Mr. Pichon must attend the meetings because expenditures can sometimes exceed the budgeted amounts. The band council must then request additional funds. Mr. Pichon must ensure that such requests are justified. He makes a recommendation to the DPWGS. If the department accepts the request, he commits the required funds to the band council.

26 Mr. Pichon also discussed the reclassification of his position to a higher level. He received work description 1290048A (Exhibit P-8) at the same time as Mr. Lamy and Mr. Courtois. They all reacted immediately. The description did not correspond at all to the work that Mr. Pichon was doing. It was entitled “Officer,” while Mr. Pichon’s counterparts in other regions had received work descriptions with the title “Analyst.” One year later, all three received another work description, 0212105A (Exhibit P-9), with the title “Analyst” instead of “Officer.” They therefore won their case with Mr. Gingras.

27 When the UCS was abandoned, Mr. Pichon requested that his position be reclassified to a higher level. He completed the questionnaire used in reclassifying his position in 2002 (Exhibit P-18). He stated that the questionnaire asked for descriptions of work done in the previous three years. His responses reflected that. He gave the example of a construction project for a waste treatment plant at Eagle Village (Kipawa). That project dates back to around 2000. The other example was a construction project for a waste treatment plant at Kahnawake, probably dating back to 1999.

28 The grievors introduced into evidence an email that Pierre-Marc Mongeau sent to them on December 10, 2003 (Exhibit P-26), in which Mr. Mongeau states that he will not follow up on the grievors’ request to negotiate a different retroactive date for the new classification of their positions.

29 Under cross-examination, Mr. Pichon stated that work description 0212105A (Exhibit P-9) reflected the duties of his position more accurately than work description 1290048A (Exhibit P-8).

30 Mr. Mongeau, Quebec Regional Director General, Centre of Expertise, Accommodation and Portfolio Management, DPWGS, testified for the employer. He stated that he has been in that position since September 2006. Before that he had worked for one year as director of major projects for the City of Montreal. From January 2004 to September 2005, he was the Quebec regional director, Professional and Technical Services, DPWGS. In 2002 and 2003, he was the acting regional manager, Project Management, DPWGS. He joined the DPWGS in 1995 as a project manager.

31 In 2004 and 2005, Mr. Mongeau’s role as Quebec regional director, Professional and Technical Services, DPWGS, involved a number of areas, including building-development management and associated technical and financial services. Mr. Mongeau supervised those areas, which included about 350 people such as architects, engineers, technicians and blue-collar workers.

32 In June 2002, after the UCS had been abandoned, the grievors asked Mr. Gingras to have the classification of their positions reviewed (Exhibit P-7). Mr. Mongeau began working on the file at that time. He sent Human Resources (HR) two requests for reclassification. The first requested that Mr. Lamy’s position be reclassified AR-05 (Exhibit P-22) and the other that Mr. Pichon’s position be reclassified EN-ENG-04 (Exhibit P-23). The reclassifications were to be based on work description 0212105A (Exhibit P-9). Mr. Mongeau pointed out to me that the two requests contained the following handwritten notation: “[translation] According to UCS generic: 0212105A.”

33 Mr. Mongeau stated that the classification officers then asked the grievors to complete a questionnaire by giving examples of their involvement in projects.

34 Mr. Mongeau sent the grievors a letter announcing their reclassification and an attached classification notice. The documents are dated August 22, 2003. The notice indicated that the effective date of the reclassification was June 21, 2002.

35 Mr. Mongeau testified that three documents were used to classify the positions: work description 0212105A from the UCS (Exhibit P-9), the questionnaire that the grievors completed in 2002 (Exhibit P-11 for Mr. Lamy and Exhibit P-18 for Mr. Pichon) and the analysis by HR (Exhibit P-20 for Mr. Lamy and Exhibit P-19 for Mr. Pichon).

36 Mr. Mongeau described the UCS. It was introduced by the Treasury Board (TB) in 1998. Its purpose was to emphasize the desired outcomes of performing the duties of a position rather than the procedure required to perform those duties. An attempt was made to describe the work of employees in generic terms. The initiative was not completed, since the TB stopped it in May 2002.

37 Mr. Mongeau explained that work description 0212105A, developed as part of the UCS, was an attempt to standardize work descriptions across the regions. It gave employees new responsibilities and increased mobility within the group. The generic aspect of the work description made it possible to include a number of activities. The work description was more varied than previous descriptions. It was intended for project management professionals, and it clearly indicated a set of responsibilities assigned to them.

38 Mr. Mongeau stated that work description 0212105A (Exhibit P-9) was different from Mr. Lamy’s 1989 Position Description Certification, which was still in effect in 1995 (Exhibit P-12), and from Mr. Pichon’s 1995 Position Description Certification (Exhibit P-16).

39 Mr. Pichon’s technical capital-asset advisor position was classified EN-ENG-03 in 1995. The Position Description Certification (Exhibit P-16) emphasized the advisory aspect of the position. The term “advisor” is used repeatedly (incidentally, Mr. Pichon was a skilled advisor). Also used are the terms “study,” “verify” and “participate.” Mr. Mongeau has sent me a number of excerpts from the Position Description Certification to illustrate the advisory aspect of the duties.

40 In Mr. Pichon’s 1995 Position Description Certification (Exhibit P-16), the ultimate responsibility for projects rested with the band council, which had the authority to contract with suppliers. Therefore, the band council was accountable for the completion of work and was also accountable for the financial aspects of projects. It paid the architects. The incumbents of the positions described in that document were not directly accountable for projects.

41 Mr. Mongeau compared Mr. Pichon’s 1995 Position Description Certification (Exhibit P-16) with work description 0212105A (Exhibit P-9). The work description mentions a responsibility for managing funds that the Position Description Certification does not mention. According to the work description, the project manager is accountable for outcomes, which are achieved through financial and schedule management. That is new. An attempt was being made to assign financial accountability to project managers.

42 Mr. Mongeau added that the new work description 0212105A makes it possible to perform more duties, such as completely reviewing funding agreements. The work description covers the authority to obtain and spend funds. The project manager is accountable, whereas under Mr. Pichon’s 1995 Position Description Certification, the project manager could only advise and verify. That is a major change in philosophy with respect to spending funds. Financial authorities have been formally delegated.

43 Mr. Mongeau also spoke about the questionnaire completed by the grievors. He brought the following note in Mr. Lamy’s questionnaire (Exhibit P-11) to my attention:

[Translation]

NOTE: The incumbent does not manage funds directly; he establishes the cash flow, approximately $19 million, for the financing officers. The incumbent is responsible for preparing project approval documents, and he is a key stakeholder in the construction project evaluation team process, a process developed by a committee on which the incumbent sat.

The note indicates that the incumbent of the position was not managing funds but was only playing an advisory role. Expenditure management was ultimately the responsibility of the band council. The questionnaire completed by Mr. Pichon (Exhibit P-18) contains a similar note. Work description 0212105A is therefore different with respect to financial accountability.

44 Mr. Mongeau also brought to my attention the section entitled “[translation] Human Resources Leadership” in work description 0212105A (Exhibit P-9). It states that the incumbent of the position must “[translation] lead teams of specialists … .” Mr. Pichon’s 1995 Position Description Certification (Exhibit P-16) specified “participating” on teams instead. Leading a team and participating on a team are two different things. The new work description 0212105A assigns a responsibility to lead teams and, with that, a responsibility for outcomes.

45 The employer asked Mr. Mongeau if the grievors were currently assuming the new responsibilities stated in work description 0212105A. Mr. Mongeau replied that they were not yet assuming those responsibilities because money was still being transferred directly to the band council. That has not changed since 1995. However, including that item in work description 0212105A will make it possible for the DPWGS to ensure that incumbents of the positions can assume those responsibilities in the future.

III. Summary of the arguments

A. Preliminary objections to jurisdiction

1. For the employer

46 The employer maintained that I did not have jurisdiction to hear these grievances. The issue here is a position’s classification. The wording of the grievances indicates that the grievors are grieving the effective date of their new classification. Setting a reclassification effective date is a classification decision. By changing a reclassification date, I would be classifying the position, but an adjudicator cannot classify a position under the PSSRA. Classifying a position requires specific expertise that an adjudicator does not have. Furthermore, section 7 of the Financial Administration Act, R.S.C. 1985, c. F-11 (“the FAA”) assigns that authority to the employer. That authority is a prerogative of the employer.

47 The employer referred me to Gvildys et al. v. Treasury Board (Health Canada), 2002 PSSRB 86, and to Nagle v. Treasury Board (Consumer and Corporate Affairs), PSSRB File No. 166-02-21445 (19911202), in which adjudicators found that an adjudicator cannot classify a position.

2. For the grievors

48 The grievors submitted that I have jurisdiction to hear the grievances. They are not asking to have their positions reclassified but rather to be compensated as of October 1, 1995, according to the salary scale for their new classification. The issue is compensation, not classification.

49 Since the grievances were presented, the issue discussed with the employer was always compensation, as reflected in the employer’s replies at the various levels of the grievance process. The grievors referred me to the December 10, 2003, email from Mr. Mongeau (Exhibit P-26) in which the issue was the effective date of the compensation under the new classification.

50 The grievors submitted that the wording of the grievances clearly shows that the issue is remuneration and not classification. Mr. Lamy wrote, “[translation] I grieve the decision dated December 10, 2003, concerning the effective date of my AR-05 reclassification,” and Mr. Pichon’s grievance reads, “[translation] I grieve the decision dated December 10, 2003, concerning the effective date of my EN-ENG-04 reclassification.” As a corrective measure, Mr. Pichon requests that “[translation] … my compensation and other benefits be adjusted retroactively to October 1, 1995, the date as of which I have been performing the duties of an ENG-04 position.”

51 In Costain et al. v. Treasury Board (Fisheries and Oceans), PSSRB File Nos. 166-02-18508 to 18511 (19891011), an adjudicator accepted jurisdiction to determine the effective date of a reclassification.

52 The grievors also referred me to Stagg v. Canada (Treasury Board), [1993] F.C.J. No. 1393 (T.D.) (QL), in which the Federal Court awarded the employee the remuneration of the reclassified position from the date on which he began performing the duties of the higher-level position.

53 The grievors also referred me to Woodward v. Treasury Board (Fisheries and Oceans Canada), 2000 PSSRB 44, in which an adjudicator made a reclassification retroactive. The same occurred in Chadwick v. Canada (Attorney General), 2004 FC 503.

54 The grievors also referred me to Macri v. Treasury Board (Indian and Northern Affairs), PSSRB File No. 166-02-15319 (19871016), in which an adjudicator found that the employees were entitled to acting pay for performing the duties of a higher-level position.

3. Employer’s rebuttal

55 The employer emphasized that the grievors’ arguments were unclear. Were they basing their arguments on classification or on acting pay?

56 By alleging at the hearing that the grievances dealt with acting pay, the grievors are changing the nature of the grievances. However, case law has established that the nature of a grievance cannot be changed when referred to adjudication. The employer referred me to Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.), in which the Federal Court of Appeal found that the nature of a grievance could not be changed after it had been referred to adjudication.

B. Merits of the grievances

1. For the grievors

57 The grievors claimed that they were entitled to acting pay as of October 1, 1995, because they had been performing the duties of their reclassified positions since that date.

58 The grievors recalled that Mr. Lamy had pointed out to his superiors during annual performance appraisals that his position should be reclassified.

59 As for financial responsibilities, the grievors argued that they were responsible for requesting that funds be transferred to the band council. The grievors verified whether work had been completed properly. They had significant financial authority, since they could veto a transfer of funds.

60 The grievors maintained that there is little basis for the effective date that the employer chose for the reclassification and that the facts do not support that date.

61 The grievors recalled that the DPWGS sent them a questionnaire (Exhibits P-11 and P-18) in 2002. The DPWGS asked them to describe projects dating back three years. The scope of the description for purposes of reclassification was broader than the employer suggests.

62 The grievors referred me to clause 46.08 of the 2000 collective agreement (Exhibit P-1), which states that an employee who substantially performs the duties of a higher classification level on an acting basis shall be paid acting pay for the period. Therefore, remuneration is covered in the collective agreement. The grievors are therefore entitled to acting pay for the positions they have been holding in an acting capacity since October 1995.

63 Remuneration is also related to the collective agreement in that it is related to salary scales. The grievors should be paid according to the salary scale for their position since October 1995, the date on which they began to perform the duties of the reclassified positions.

64 The grievors referred me to Stagg and Chadwick, in which the Federal Court granted acting pay to employees from the date on which they began to perform the duties of the higher-level position. An adjudicator arrived at the same conclusion in Macri.

65 The grievors ended by asking that their grievances be allowed. They also requested that I remain seized of the matters until the parties agree on how my decision will be implemented.

2. For the employer

66 The employer argued that the grievors carried the burden of proving that the collective agreement had been breached. The employer argued that the grievors had not specified, in their grievances or reference-to-adjudication forms, the clause of the collective agreement that the employer had breached. The grievors are now saying that acting pay is the issue, but they never referred to clause 46.08 of the collective agreement before the hearing.

67 If the grievors are basing their grievances on acting pay, then their argument has little merit, because there are criteria to be met and a procedure to follow for acting pay. The grievors must show that they were performing the duties of a higher-level position in an acting capacity for a given period, which they have not established.

68 The employer further maintained that the grievors confirmed that they were performing the duties described in Mr. Lamy’s 1989 Position Description Certification (Exhibit P-12) and Mr. Pichon’s 1995 Position Description Certification (Exhibit P-16). They said that they were not doing anything other than what is described in those certifications. They never filed grievances against those certifications.

69 The UCS was abandoned in 2002. It was discontinued for all public servants. It is very important to note that normally, the story should have ended then and there; however, the employer decided in good faith to review the classification of the grievors’ positions in 2002, because they had requested it, and they were satisfied with work description 0212105A that had resulted from the UCS.

70 The fact that the grievors were satisfied with work description 0212105A was not disputed. In their letter dated June 20, 2002 (Exhibit P-7), the grievors refer to work description 0212105A (Exhibit P-9) and give their approval.

71 The employer pointed out that the request for reclassification of Mr. Lamy and Mr. Pichon’s positions was fruitful because their positions were reclassified to a higher level.

72 The effective date required by the grievors is excessive. A reclassification is usually not retroactive. The reclassification took place on August 22, 2003, and the employer granted the grievors one year of retroactivity, to June 21, 2002, the date on which the grievors requested the reclassification of their positions.

73 The employer maintained that a reclassification requires a change in the duties of the position. The changes are reflected in work description 0212105A (Exhibit P-9). The work description is more generic and wider ranging than the previous Position Description Certifications (Exhibits P-12 and P-16). More duties and activities are described. Certain items in work description 0212105A were new, in particular the authority to manage funds directly. That was supported by the evidence. Mr. Lamy testified that he did not sign the transfers of funds; rather, the band council signed them. Mr. Lamy wrote a comment on the questionnaire he completed (Exhibit P-11) saying that he did not manage funds.

74 The grievors maintain that their duties have not changed since 1995. They are correct, but it is irrelevant. What is relevant is that the new work description 0212105A provides a new potential for increased responsibility and a potential for broader responsibility. They could manage funds directly. The new description describes generic duties and is broader and has nothing to do with the grievors’ former Position Description Certifications.

75 The employer referred me to Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (C.A.) (QL), in which the Federal Court of Appeal found that for salary grievances, the relief granted could not extend past the period set out in the collective agreement for presenting grievances.

76 Babiuk et al. v. Treasury Board (Department of Citizenship and Immigration), 2007 PSLRB 51, is more relevant for these grievances. The facts are the same as those in this case. The employer had done a reclassification and made it retroactive by one year. The grievors requested a longer retroactive period. An adjudicator refused to treat the grievance as an acting-pay grievance. Moreover, he stated that had he found the matter to be a valid acting-pay grievance, he would have applied Coallier.

77 The employer ended by submitting that work description 0212105A was different from the 1989 and 1995 Position Description Certifications. To allow the grievors’ arguments, I must establish whether the Position Description Certifications merited a higher-level classification. I would then be classifying the positions, for which I have no jurisdiction.

78 Alternatively, I could allow the grievors’ arguments that the grievances are acting-pay grievances; however, the grievors have not discharged the burden of proof placed upon them. The grievors have not established that they were performing the duties of a higher-level position.

79 Moreover, were I to allow the grievors’ arguments, I should apply Coallier and limit the retroactive period to the time limit prescribed in the PSSRA for filing grievances.

3. Grievors’ rebuttal

80 The grievors argued that it was not necessary for them to state in their grievances the clause of the collective agreement that the employer had breached. Case law shows that adjudicators appointed under the PSSRA have accepted jurisdiction in similar cases, even when the employees had not specified the clause being grieved.

81 The grievors have met their burden of proof. They have established that they have been performing higher-level duties since 1995. They have greater responsibilities, and that is why their positions have been reclassified.

82 The grievors emphasized that in Macri, the adjudicator had refused to apply Coallier and limit the acting pay to 25 days before the grievance was filed.

IV. Reasons

83 Each of the grievors has referred a grievance to adjudication under paragraph 92(1)(a) of the PSSRA, which reads as follows:

          92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or arbitral award;

84 This case deals with the effective date of the grievors’ reclassifications. The employer made their reclassifications retroactive by 14 months. The reclassification took effect on June 21, 2002, the day after the grievors submitted their written request for reclassification (Exhibit P-7). The grievors disagreed with the effective date and discussed the matter with the employer. On December 10, 2003, the employer informed them of its refusal to change the effective date (Exhibit P-26). The grievors filed their grievances on December 23, 2003, in response to the refusal. They maintain that the reclassifications should have become effective on October 1, 1995, because they had been performing the duties of a higher-level position since that date, and those duties had never changed.

85 At the hearing, the grievors also claimed that they were entitled to acting pay retroactive to October 1, 1995. They maintained that they had performed the duties of a higher-level position since that date and that clause 46.08 of the 2000 collective agreement provided that an employee who substantially performs the duties of a higher-level position shall be paid at the rate of pay for that position.

86 It is useful to review the circumstances under which the reclassification occurred. During his annual performance appraisals, Mr. Lamy had mentioned that he was unhappy with the classification of his position; however, he never made a formal request for reclassification. In 1998, the TB undertook a sweeping reform of the classification of all public service positions, in preparation for the UCS. The grievors’ positions were reviewed as part of that government-wide initiative. According to Mr. Mongeau’s testimony, the purpose of the reform was to develop work descriptions that were more generic and results oriented. However, that classification reform was cut short when the TB ended it in May 2002. After the UCS was abandoned, the grievors requested that their positions be reclassified to a higher level using work description 0212105A (Exhibit P-9), which had been developed as part of the UCS. That generic work description was used for both grievors’ positions. The approved versions of that work description (Exhibits P-24 and P-25) are identical to the draft version the grievors received in 2002 (Exhibit P-9). According to the evidence submitted, the reclassification was based on that work description, the grievors’ responses on a classification questionnaire (Exhibit P-11 for Mr. Lamy and Exhibit P-18 for Mr. Pichon) and a classification analysis based on those documents (Exhibit P-20 for Mr. Lamy and Exhibit P-19 for Mr. Pichon).

A.  Does an adjudicator have jurisdiction to hear a grievance that deals with the classification of a position? 

87 First, I would like to address the employer’s preliminary objection. The employer has reason to believe that an adjudicator, appointed under the PSSRA, cannot hear a grievance that deals with the classification of a position. Paragraphs 7(1)(e) and 11(2)(c) of the FAA, as they read on the date of the reclassification decision, assigned that responsibility to the TB:

7. (1) The Treasury Board may act for the Queen’s Privy Council for Canada on all matters relating to

…

(e) personnel management in the public service of Canada, including the determination of the terms and conditions of employment of persons employed therein;

…

11. (2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10,

…

(c) provide for the classification of positions and employees in the public service;

Moreover, section 7 of the PSSRA states that a grievance adjudicator has no jurisdiction on matters of classification:

7. Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.

Therefore, it is clear that I do not have jurisdiction to hear a grievance dealing with the classification of a position.

88 The grievors are not asking me to classify their positions as such but rather to establish the effective date of their reclassification.

89 Can an adjudicator change the effective date of a classification? Can the classification of a position be dissociated from its effective date for purposes of jurisdiction? I know of no Federal Court decision that suggests that an adjudicator can set the effective date of a reclassification. As will be discussed below, there have been cases in which employees whose positions have been reclassified have been granted retroactive acting pay (for example Stagg and Blais v. Canada, [1986] F.C.J. No. 918 (C.A.) (QL)) on a completely different legal basis. In my view, an adjudicator can at most establish whether the remuneration for the reclassified position complies with the collective agreement, absent bad faith or special circumstances such as promissory estoppel, as in Costain et al.

90 Even if I were to decide that an adjudicator could change the effective date of a reclassification, I would still dismiss the grievances, since I cannot grant such a retroactive period. An employee can always request that his or her position be reclassified or file a classification grievance with his or her employer on the grounds that the classification of his or her position should be reviewed, if he or she believes that the classification is not appropriate for the position under the current classification scheme. In this case, the grievors could have filed a formal request for classification or a classification grievance with their employer at any time during the eight years before they filed their grievances, but they decided not to. In my view, they cannot wait eight years and then file a classification grievance in which they demand eight years of retroactivity. That would be contrary to an important aspect of the PSSRA that requires rights to be exercised in a diligent manner.

B.  Had the grievors been performing the duties of the reclassified positions since October 1, 1995? 

91 In my view, there is another reason to dismiss the grievances. The grievors maintained that they had been performing the duties of the reclassified positions since October 1, 1995, and that they were therefore entitled to compensation according to the salary scale of the reclassified positions as of that date. In my view, the grievors had not been performing the duties of the positions, as reclassified in 2003, since October 1, 1995. The employer did not dispute that the grievors had been performing the same work since 1995. However, one must realize that it was not the duties that the grievors had been performing since 1995 that were reclassified to a higher level but rather the duties described in the generic work description 0212105A (Exhibit P-9), developed in 2002 and approved in 2003. That work description, a result of the UCS, differs from the previous Position Description Certifications. According to Mr. Mongeau’s testimony, before aligning the grievors’ work description with their colleagues in other regions, not only were tasks added, but also their natures were changed by increasing the level of responsibility. That was done so that the grievors could assume the new responsibilities in the future. At the time of the hearing, the grievors were still not performing all of the duties in their new work description since the changes had been made in preparation for the future.

92 The difference between the Position Description Certifications (Exhibits P-12 and P-16) that preceded work description 0212015A (Exhibit P-9) is obvious. Mr. Pichon’s 1995 Position Description Certification (Exhibit P-16) emphasizes the “study,” “verify” and “advise” aspects of the duties. It contains the following summary of duties and position objectives:

…

40%    Study and verify development plans, capital plans, feasibility studies, capital plan studies and research on engineering designs for constructing new facilities, or modifying or expanding existing facilities;

35%    Study and verify the design and progress of new infrastructure, school and community facility projects, as well as modification and expansion projects for existing facilities, to report to DIAND on quality of work, scheduling and budgetary limits;

10%    Advise bands, at the request of DIAND, on the department’s technical requirements and associated standards for new facilities and for the location and construction of buildings, roads, water mains and sewers, and other public utilities;

…

[Emphasis added]

93 Furthermore, it specifies that the position incumbent must

…

- Advise DIAND after studying First Nations development plans and long-term capital plans;

- Verify needs identified by bands that request new facilities;

- Advise DIAND on the necessity for further research (site investigations and soil surveys, development of site maps and concept plans) and present preliminary cost estimates;

- Advise DIAND on setting priorities and determining appropriate alternative solutions;

- Study research reports and discuss them to determine the necessity and feasibility of the proposed projects;

- Study and verify project designs, cost estimates and schedules to ensure they meet DIAND requirements, and make appropriate recommendations to DIAND;

- Study and verify detailed operating and maintenance costs of projects submitted;

- Verify life cycle cost analyses of the various options proposed and recommend the most cost-effective one to DIAND;

…

[Emphasis added]

94 In the questionnaire he was asked to complete (Exhibit P-18), Mr. Pichon states that he did not manage funds:

[Translation]

…

NOTE: The incumbent does not manage funds directly; he establishes the cash flow, approximately $5 million to $6 million, for the financing officers. The incumbent is responsible for preparing project approval documents, and he is a key stakeholder in the construction project evaluation team process, a process developed by a committee on which the incumbent sat.

…

[Emphasis added]

95 Mr. Pichon himself stated in his testimony that he played an advisory role and made recommendations to the band council. Even if his recommendations were given great weight, Mr. Pichon had no deciding power with respect to managing project funds.

96 Mr. Lamy did not, and still does not, manage funds as such. In the 1989 Position Description Certification (Exhibit P-12), which was still in effect in 1995, there is no explicit reference to responsibility for managing funds. In any case, that Position Description Certification cannot be greatly relied on, because it does not exactly reflect what Mr. Lamy had been doing since 1995. The certification was written in 1989, but the tasks were changed in 1995 on the devolution of responsibilities to the band council. Mr. Lamy also stated on his classification questionnaire (Exhibit P-11) that he did not manage funds:

[Translation]

…

NOTE: The incumbent does not manage funds directly; he establishes the cash flow, approximately $19 million, for the financing officers. The incumbent is responsible for preparing project approval documents, and he is a key stakeholder in the construction project evaluation team process, a process developed by a committee on which the incumbent sat.

…

[Emphasis added]

97 Mr. Lamy stated in his testimony that starting in April 1995, when responsibilities were transferred to Aboriginal communities, he had less direct contact with those communities. He provided them with advice and technical services.

98 Generic work description 0212105A (Exhibit P-9), approved in 2003 and applicable to the two grievors, contrasts with the previous Position Description Certifications. Work description 0212105A places more emphasis on the management of funds and specifically states that the position incumbent is responsible for managing funds:

[Translation]

…

Prepare project budgets for the work and service program for various clients. The budgets cover all costs associated with the delivery of required services and include project expenditures (for example consultants, contractors and equipment), PWGSC costs (salaries and expenses) and operating expenses, specifically travel. Manage and monitor budgets and modify them to meet changing needs, limit risks and use resources wisely, while having the flexibility required to choose the best action plan and reassign resources to provide required services within established budgets, in accordance with delegated authorities and the department’s financial management policies.

If INAC is the main client, perform or manage the review of funding agreements between the department and First Nations communities on a wide range of real estate projects. The incumbent may determine the level of funding required, on which are based the recommendations to clients regarding subsidy and contribution agreements with the First Nations.

…

Acquiring funds:

Analyze client project requirements; find the best option for executing the projects and determine resource requirements, including PWGSC expenses; and develop cost-recovery plans for each project. This information forms the basis for negotiating service agreements with each client that specify the terms, conditions and costs of their projects. Help manage cost-recovery plans to meet requirements. The manager may recommend adjustments as circumstances change, in accordance with department policies and delegation of authorities.

Spending funds:

Manage minor project contracts, sign for goods and services and recommend payments to acquire goods and services required to carry out client projects. That includes established contracts, for example to obtain services from private-sector engineering, architectural and environmental firms, construction contracts and equipment-purchase contracts. The incumbent has the authority to reassign resources within each project budget as circumstances change, in accordance with government and department policies, as well as delegated authorities for the position.

…

[Emphasis added]

99 As Mr. Mongeau explained, the generic work description (Exhibit P-9) introduced the concept of responsibility for managing funds, which was not found in previous Position Description Certifications. The new work description gives the incumbent complete responsibility for project management and execution. Unlike before, the role goes beyond being an advisor and participant to include being a manager responsible for outcomes. Before, the incumbent studied contracts; now, he or she manages them. Before, the band council was ultimately responsible for projects; now, the new work description assigns that responsibility to the position incumbent.

100 There are other new responsibilities in work description 0212105A. It states that the position incumbent must “[translation] manage teams of specialists … .” The previous Position Description Certifications talk about “participating” on teams instead.

101 I do not think the fact that the grievors were asked in the classification questionnaire to describe projects going back three years is decisive. The duties that they had been performing for three years were evaluated for the reclassification, but so were the new responsibilities assigned to them in the new work description. The new responsibilities were added for flexibility in the future.

C.  Are the grievors entitled to acting pay?

102 The grievors raised another reason for the grievances. They claimed that since October 1, 1995, in an acting capacity, they were performing the duties of the positions that had been reclassified to a higher level and that the 2000 and 2003 collective agreements stated that an employee who substantially performs the duties of a higher classification level should be paid acting pay. The provision reads as follows:

…

46.08 When an employee is required by the Employer to substantially perform the duties of a higher classification level on an acting basis for the required number of consecutive working days, the employee shall be paid acting pay calculated from the date on which the employee commenced to act as if the employee had been appointed to that higher classification level for the period in which the employee acts.

…

103 The employer objected to the grievors being allowed to introduce the new reason because they had not mentioned it before the reference to adjudication. I do not think it necessary for me to decide whether the grievors have changed the reason for their grievances at the stage of reference to adjudication, since I do not believe that the grievors are entitled to acting pay under these circumstances. They have failed to convince me that they were substantially performing the duties of work description 0212105A (Exhibit P-9) before June 21, 2002. What is special about the grievances is that the new work description adds significant responsibilities to the grievors’ positions. Not only are there new tasks, but the nature of the tasks has also changed. The grievors had not assumed the new responsibilities, neither at the time of the reclassification nor at the time of the hearing. The work description was, in a way, developed for the future. The new responsibilities arose when the new work description was approved on August 22, 2003. The new work description actually came into being on that date. As explained in section IV.B of this decision, the key difference is in the accountability for project management, an important aspect of the grievors’ positions. The duties have changed from advising and studying to managing. Therefore, it cannot be said that the grievors “[translation] substantially performed the duties of a higher classification level” before the reclassification, within the meaning of clause 46.08 of the collective agreement.

104 Even if I were to decide that the grievors performed the duties of the reclassified positions, I would still dismiss the grievances for the following reason. The grievances deal with a continuing violation (or continuing grievance), meaning a breach that is repeated with each paycheque. In my view, I could not grant acting pay for the period before the deadline for filing a grievance set out in the P.S.S.R.B. Regulations and Rules of Procedure, 1993, SOR/93-348 (“the Regulations”), which were in effect when the grievances were filed. According to subsection 71(3) of the Regulations,the time limit was 25 days.

105 Brown and Beatty describe that type of grievance in Canadian Labour Arbitration, 4th ed., at paragraph 2:3128:

…

… Continuing violations consist of repetitive breaches of the collective agreement rather than simply a simple or isolated breach. They may arise in such circumstances as an illegal strike, the non-payment of money or benefit premiums, or in connection with decisions based on an improper seniority date or the assignment of work…

…

[Emphasis added]

[Footnotes omitted]

106 The Federal Court of Appeal dealt with a continuing grievance in Coallier. In that case, the employee filed a grievance because he had not been paid according to the salary scale set out in the collective agreement. In the employment-offer letter, he was promised the full salary once he had met a certain performance threshold. The employer never paid the full salary, claiming that the employee never reached the threshold. The Federal Court of Appeal found that the employment-offer letter was contrary to the collective agreement and that the employee was entitled to the full salary for his position as set out in the collective agreement. However, the Federal Court of Appeal found that the claim to that salary could not cover the period before the grievance filing period (25 days in that case). In my view, the reason for the limitation, even though the Federal Court of Appeal does not state it explicitly, is that the breach of the collective agreement was continuing in nature, and the claims in such cases cannot be retroactive beyond the period for filing a grievance.

107 Private-sector arbitrators in Canada have adopted a similar approach for continuing grievances. Brown and Beatty explain as follows, at paragraph 2:3128:

…

Where it has been established that the breach is a continuing one permitting the time period for launching the grievance to be measured from the latest occurrence, it has been held that the failure to initiate it within the stipulated time from the date of its first occurrence will not render it inarbitrable. However, the relief or damages awarded retroactively in such circumstances may be limited by the time limit. Thus, for example, where a grievance claimed improper payment of wages and the grievance was allowed, the award limited the damages recoverable to five full working days prior to the filing of the grievance, which was the time limit for initiating the grievance.

…

[Emphasis added]

[Footnotes omitted]

108 In my view, Coallier applies to this case. At any time during the eight years before the reclassifications, the grievors could have filed an acting-pay grievance based on the collective agreement, arguing that they were performing the tasks of a higher classification level. They chose not to. In my view, they cannot claim eight years of back pay. Given the continuing nature of the breach, they cannot claim acting pay for the period before the grievance filing period set out in the Regulations. In this case, as mentioned above, subsection 71(3) of the Regulations provides for a 25-day period. However, the employer allowed them well over 25 days by granting 14 months of retroactivity.

109 An adjudicator reached the same conclusion in Cairns et al. v. Treasury Board (Department of Citizenship and Immigration), 2006 PSLRB 130. In that case, employees argued that the employer should have granted a longer retroactive period for their reclassification. At the hearing, they based their claim on the entitlement to acting pay under the collective agreement. The adjudicator found that based on Coallier, acting pay could not be applied to the period before the grievance filing period:

…

[73] These grievances were filed in November 2002, but the grievors request pay retroactive to January 1, 2000. It is clear from Coallier that a grievor cannot go back more than 25 days prior to the filing of the grievance. In this case, the grievors were paid as of March 12, 2002, which is far beyond the 25-day period.

…

110 An adjudicator reached the same conclusion in Babiuk et al. In that case, the facts are almost the same as in these grievances. The employer reclassified the position and set a retroactive period of one year. The employees requested a longer retroactive period. The grievances within the department were filed as grievances dealing with the reclassification effective dates but, in their references to arbitration, the employees wanted to base their arguments on acting-pay provisions in the collective agreement. The adjudicator refused to allow the nature of the grievances to be changed at that stage. He stated that even if he had allowed the grievances to be dealt with as grievances based on the entitlement to acting pay, he would still have dismissed them by applying Coallier, since the retroactive period granted by the employer was already longer than the grievance filing period.

111 I am aware that in Stagg, the Federal Court granted acting pay to employees for a period longer than the grievance filing period. It does not appear that Coallier or the continuing nature of the grievance was raised. In my view, I must apply Coallier to this case because the grievances are clearly of a continuing nature and, in such a case, compensation cannot go beyond the period for filing a grievance.

112 In Blais, the Federal Court of Appeal also granted acting pay to the employee for a period longer than the grievance filing period; however, the facts in that case are unusual. The employee’s position was reclassified in June 1984, retroactive to January 1, 1984, because that was when the duties of the position were increased. The employee was not grieving the retroactive date. He simply wanted to be paid according to the salary scale of the reclassified position as of January 1, 1984, because he performed the new tasks as of that date, and he would have received that back pay had he been appointed to the reclassified position. The employer decided not to appoint him to the position, so the employee decided to file a grievance based on his performance of the position’s duties in an acting capacity. In that case, the employee had little or no reason to file a grievance any earlier, because he believed he would be appointed to the reclassified position. In this case, the facts are very different. The grievors could have filed their grievances at any time in the eight years before their positions were reclassified if they believed that they were performing the duties of a higher classification level.

113 For all of the above reasons, I make the following order:

V. Order

114 The grievances are dismissed.

April 14, 2008.

PSLRB Translation

John A. Mooney,
adjudicator