FPSLREB Decisions

Introduction

1 The Department of Foreign Affairs and International Trade Affairs (“the employer”) posted Thomas Bearss (“the grievor”) to the position of Consul/Senior Trade Commissioner in Buffalo, New York, on August 25, 2002. On November 4, 2005, the grievor filed a grievance in which he alleged that he had not received the correct pay from July 1, 2005. According to the grievor, that error affected his subsequent pay rates.

Summary of the evidence

2 At the start of the hearing, counsel advised me that they had agreed to proceed by way of an agreed statement of facts and various documents that were marked by consent. The agreed statement of facts reads as follows:

Treasury Board (Department of Foreign Affairs and International Trade) and the Professional Association of Foreign Service Officers agree for the purposes of adjudication:

a.  that the facts set forth herein are admitted as proven as if those facts had been established in evidence, subject to their relevance to the issues and to their weight being determined by the Adjudicator;

b. that the documents attached as schedules hereto are admitted as proven, subject to their relevance to the issues herein and to their weight being determined by the adjudicator

c.  that each schedule hereto is a true copy of a document, the original of which was printed, written signed or executed as it purports to have been, and which was sent and received, as the case may be by the persons indicated thereon or therein, at or about the dates indicated

Introduction

At issue in this grievance is the acting FS-4 rate of pay to which the grievor became entitled on July 1, 2005.

Background

1. Mr. Thomas Bearss was a substantive CO-02;
2. He initially joined the Public Service on February 19, 1973;
3. He worked for Revenue Canada Canada/Customs and first served abroad as Customs Attache/Representative at CNGNY from 1975 to 1978;
4. In September, 1988, he joined the Department of Foreign Affairs and International Trade on secondment from the Department of Finance where he worked as an Economist ES-5 in the International Trade and Finance Branch; the work, however, was similar and equivalent to that done by FS-02 Trade Commissioners Branch;
5. In February 1992 he transferred to DFAIT as a CO-2 and continued to perform the work of an FS-02 Trade Commissioner;
6. On August 29, 1998, he was posted to Port of Spain, Trinidad as a Commercial Counsellor. Although working in an FS-2 position, he continued to receive CO-2 pay as the maximum rate of pay [Sic] the CO-2 level was higher than the maximum rate of pay of the FS-2 level;
7. For 8 months in 2001-2002, Mr. Bearss was Acting High Commissioner, an EX-3 position;
8. In the summer of 2002, the FS group signed a new collective agreement which led to a pay restructure yielding a higher FS-2 maximum rate of pay than the CO-2 maximum; as a result he began receiving acting FS-2 pay;
9. On August 25, 2002 Mr. Bearss was posted to Buffalo as Consul/Senior Trade Commissioner, an FS-2 position where he remained until his retirement on August 29, 2006;
10. As a result of a conversion of the FS group on July 1, 2005, all substantive FS-2s were converted to FS-3.
11. On the same day, July 1, 2005, the assignment position of Consul/Senior Trade Commissioner was converted from FS-2 to an FS-4 Senior Advisor, IB, Abroad; as such he was entitled to acting FS-4 pay;
12. Mr. Bearss acting FS-4 rate of pay as of July 1, 2005 was recalculated from his substantive CO-2 rate of pay of 84,908 by adding the smallest increment in the FS-4 scale of rates (3,508) and locating the rate of pay in the FS-4 scale which was nearest to but not less 88,416 (84,908+3,508);
13. On August 1, 2005, his rate of pay was increased by an increment to 94,873;
14. Colleagues who were substantively FS-02 prior to conversion (unlike Mr. Bearss who was substantively a CO-02) were converted to FS-03. For employees who were substantively FS-03, the rate of pay for assignment positions at FS-04 was calculated based on the substantive FS-03 salary, which after the application of the promotion rule yielded an acting FS-4 rate of 94,873, one increment higher than Mr. Bearss acting FS-4 rate of 91,233;
15. Mr. Bearss filed a grievance on November 4, 2005.

 

Issues to be decided

3 I have been called on to interpret the Terms and Conditions of Employment, often called the Public Service Terms and Conditions of Employment Regulations (PSTCER), as it applies to this case. The issue to be decided in this case was best stated by counsel for the employer as follows: “Was the employer justified to use the substantive position of the grievor as opposed to his assigned position, for the purposes of calculating his rate of pay in July 2005?”

Positions of the parties

4 The employer states that it applied sections 24 and 26 of the PSTCER to calculate the grievor’s rate of pay in 2005. The employer submits that those sections are appropriate because of section 46 (B) and paragraph 46 (E)(b)(i). Those sections require the employer to use the maximum rate of pay of the substantive position to calculate the rate of pay to which an employee on an acting assignment is entitled.

5 In making the submission, counsel for the employer provided me with a sheet outlining the method of calculation that the employer used in 2005. It is helpful to set out the text of that sheet:

Establishment of Rate of Pay for Acting Assignment

Acting pay is the rate of pay that the employee would be paid on deployment or appointment to such higher classification level, as calculated pursuant to Sections 24 or 26 PSTCER.

There are 4 steps in determining a salary for an acting assignment;

Step One

determine if the acting assignment constitutes a promotion or transfer by applying the Promotion/Transfer rule

Step Two

apply the appropriate regulations depending on results of step one.

Step Three

determine if the Subsequent Assignments regulations are applicable

Step Four

determine salary

Step One: Promotion Transfer Rule (PSTCER 24(1))

The following calculations are to reflect an acting assignment effective July 1, 2005. The employee is a substantive CO-02 and is assigned to an FS-04 position.

Maximum Rate of Pay FS-04         $102613

Maximum Rate of Pay CS-02        $84908

Difference                       $17,705

Lowest Pay increment in FS-04     $3508

As the difference between the maximums of the FS-04 and CS-02 exceeds the lowest increment on the FS-04, this situation is considered a promotion.

Step Two: Salary on Promotion (PSTCER 24(2))

Substantive rate of pay July 1, 2005 (CO-02)     $84908

Lowest Pay increment in FS-04 July 1, 2005      $3508

                                                               $88416

Nearest salary to $88416 is $91233

Step Three:

As employee was acting immediately prior to the new acting appointment, PSTCER 46(E)(b)(i), Subsequent assignments will apply.

Step Four

As the rate of pay established with the Promotion/Transfer rule for the acting assignment in the FS-04 is higher ($91233) than the rate of pay in the acting assignment FS-02 ($89085) immediately prior to the acting assignment, the rate of pay for the acting assignment will be $91233.

[Sic throughout]

6 The grievor, who of course bears the onus of proving his case, submits that the provisions of the PSTCER that the employer applied to calculate his rate of pay in 2005 after the conversion of July 1, 2005 were not applicable. He submits that because he was not being appointed (he had been appointed on August 25, 2002; see paragraph 9 of the agreed statement of facts) and because he had not been assigned “other duties to perform,” (see sections 24, 26, 46(B) and 46(E)). The grievor’s position is that his FS-02 acting assignment continued into 2005 and that, therefore, when as a result of collective bargaining, the FS-02 positions were converted to FS-03, the calculation of his new rate of pay should not have taken into account the level of pay of his substantive position as a CO-02. As a consequence, the grievor submits that he should have been treated in the same way as his colleagues and that the use of his substantive position’s rate of pay for calculating his new rate of pay in 2005 was incorrect. The grievor submits that section 46(C) applies in this case and that he should be treated as others were in the same situation.

Analysis

7 To properly address the issues before me, it is important to reproduce the portions of the PSTCER that the parties submitted as relevant. The parties referred to the following sections in their submissions:

24. (1) The appointment of an employee described in Section 23 constitutes a promotion where the maximum rate of pay applicable to the position to which that person is appointed exceeds the maximum rate of pay applicable to the employee's substantive level immediately before that appointment by:

a. an amount equal to at least the lowest pay increment for the position to which he or she is appointed, where that position has more than one rate of pay; or

b. an amount equal to at least four per cent of the maximum rate of pay for the position held by the employee immediately prior to that appointment, where the position to which he or she is appointed has only one rate of pay.

24. (2) Subject to Sections 27 and 28, on promotion, the rate of pay shall be the rate of pay nearest that to which the employee was entitled in his or her substantive level immediately before the appointment that gives the employee an increase in pay as specified in subsection (1) above; or an amount equal to at least four per cent of the maximum rate of pay for the position to which he or she is appointed, where the salary for the position to which the appointment is made is governed by performance pay.

…

26. (1) A person described in Section 23 is deployed or transferred by appointment where the deployment or appointment to a position to which these regulations apply does not constitute a promotion or demotion.

26. (2) Subject to Sections 27 and 28, where the appointment constitutes a deployment or transfer by appointment, the employee shall be paid the rate of pay that is nearest to but not less than the rate of pay the employee was entitled to in his or her substantive level immediately before the deployment or appointment, or if there is no such rate, at the maximum rate of pay for the position to which he or she is deployed or appointed.

…

46. (B) Rate of pay

Acting pay is the rate of pay that the employee would be paid on deployment or appointment to such higher classification level, as calculated pursuant to Sections 24 or 26 of these regulations.

46. (C) Recalculation of pay

2. An employee in receipt of acting pay is entitled to revisions to the salary range of the higher classification level.

…

46. (E) Subsequent assignments

An employee in receipt of acting pay who is required to perform other duties:

…

b. of a group and/or level higher than that for which acting pay is being paid shall:

i. be paid the rate of pay that the employee would be paid on deployment or appointment to such higher classification level, as calculated pursuant to Sections 24 or 26. Should such rate be less than the employee's previous acting rate of pay, the employee shall be paid at the rate of pay in the higher classification level that is nearest to but not less than the previous acting rate of pay; and…

8 Both parties acknowledge that the PSTCER is incorporated as part of the collective agreement between the Professional Association of Foreign Service Officers (“the bargaining agent”), representing the grievor, and the employer. (See Broekaert et al. v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 90, at paras 28 to 30, reviewing Attorney General of Canada v. Raymond Keith Jones, [1978] 2 F.C. 39). I conclude that I have jurisdiction to interpret the PSTCER and to determine whether it was applied appropriately in this case.

9 It is important to note the distinction between a substantive position and an assigned position. In this case, the grievor’s substantive position was CO-02 (Commerce Officer) and his assigned position, at least until July 1, 2005, was FS-02 (Foreign Service Officer). As of July 1, 2005, his assigned position was converted to FS-03 and eventually to FS-04 (see paragraphs 10 and 11 of the agreed statement of facts). Counsel for the employer explained that it is common for employees of the employer to be reassigned from one position to another and that, in each case, the employer calculates the rate of pay in accordance with the method used in this case. The PSTCER was developed to address acting assignments in the federal public service, and the employer has had to apply it on many occasions. The grievor took no issue with those assertions, so I accept them as true.

10 The manner in which the employer applied the PSTCER in this case was clearly articulated by counsel and was detailed in a document presented at the hearing and reproduced at paragraph 5 of this decision. In fact, counsel for the grievor acknowledged that, had the grievor been appointed to a new assignment or had his duties changed in July 2005, the employer’s method of calculation would have been correct.

11 However, does the PSTCER apply in this case? 

12 The grievor was assigned or posted to the position of Consul/Senior Trade Commissioner in Buffalo on August 25, 2002. The position was classified at the FS-02 level. At that point, as a result of a collective agreement that had been successfully concluded in the summer of 2002, he received pay at the FS-02 level, and the pay calculation was made in the manner outlined by the employer in paragraph 5 of this decision using his rate of pay as a CO-02, his substantive position. Since then, according to the PSTCER, the grievor was treated, insofar as his rate of pay was considered, as if he were an FS-02. As of June 30, 2005, the grievor was receiving an annual salary of $89,085, which was the maximum rate of pay for an FS-02.

13 On July 1, 2005, after the bargaining agent and the employer successfully negotiated another collective agreement, the FS-02 positions were converted to FS-03 positions (paragraph 10 of the agreed statement of facts and Exhibit 6). If that were the only event that took place on that day, I would conclude that the rate of pay that the grievor would have received would have been the same as those persons whose substantive positions were at the FS-02 level. That would have been the result of applying subsection 46(C)(2) of the PSTCER. In other words, on that day, the rate of pay to which the grievor would have been entitled would have been $91,233.

14 However, on that same day, July 1, 2005, the employer converted the position of Consul/Senior Trade Commissioner from FS-02 to FS-04. That, of course, was the grievor’s position. There is no doubt that, had the grievor held the substantive position of FS-02, he would have received an additional increase in his rate of pay, as it would have been considered a promotion, taking into account the Promotional Rules. His rate of pay would have increased to $94,873.

15 That said, for all intents and purposes, the employer treated the grievor as a newly appointed or assigned employee and calculated his pay at the FS-04 level by using his substantive position of CO-02, rather than recognizing that he had served as an FS-02 since August 25, 2002. In support of this application of the PSTCER, the employer relied on sections 24, 26, 46(B) and 46(E), as evidenced both in the submission of counsel as well as in the document presented during submissions for illustrative purposes (see paragraph 5 of this decision).

16 I have difficulty accepting, in what I conclude to be the rather unique circumstances of this case, that the PSTCER should have been applied in the manner used by the employer. In stating this, I accept the submission of counsel for the employer that I cannot change the terms of the collective agreement by drawing a conclusion simply based on what one might argue to be an equitable conclusion. I draw my conclusion based on the wording of the PSTCER.

17 First, subsection 24(2) of the PSTCER states that:

…on promotion, the rate of pay shall be the rate of pay nearest that to which the employee was entitled in his or her substantive level immediately before the appointment that gives the employee an increase in pay as specified in subsection (1) above…

[Emphasis added]

In my view, that subsection can apply only at the time of appointment or promotion.  That subsection would have been relevant to the calculation of the grievor’s rate of pay as a result of the August 25, 2002 assignment. In other words, the rate of pay to which the grievor was entitled would have been calculated using that subsection and the formula set forth by the employer and referred to in paragraph 5 of this decision. However, that subsection would only apply to the grievor in any subsequent assignments; it was not intended to apply to the situation where the grievor continued in his assignment, as in this case.

18 Subsection 26(2) of the PSTCER uses the same language as subsection 24(2), as follows: “…immediately before the…appointment… [emphasis added]” In my view, those words require that an appointment be made. In this case, there is no evidence that an appointment was made. Rather, the parties agreed that the grievor, from August 25, 2002 at least to the date of the grievance, and in fact to his retirement, continued to be assigned to position number 670. From 2002 until 2005, that position was classified at the FS-02 level, and on July 1, 2005, it was reclassified FS-04.

19 Furthermore, the employer submits that paragraph 46(E)(b)(i) of the PSTCER requires the calculations specified in sections 24 and 26. However, as pointed out by counsel for the grievor, that paragraph seems to take effect only where the assigned employee is required to “…perform other duties. [emphasis added]” There is no evidence that the grievor in this case was so required. In my view, that paragraph is inapplicable and is in fact a protection to employees who are assigned to a position, who receive acting pay and who are then required to perform other duties. That does not apply in the case before me.

20 Finally, section 46(B) of the PSTCER has little impact on this case, as once again it is only invoked “… on deployment or appointment to such higher classification level… [emphasis added]” The grievor in this case had already been deployed or appointed on August 25, 2002.

21 For all of these reasons, I conclude that the method of calculation used by the employer on July 1, 2005 and outlined in paragraph 5 of this decision is not appropriate in the circumstances of this case. The grievor was not appointed or promoted to a position on that date. Rather, he continued in the position to which he was appointed on August 25, 2002, the position of Consul/Senior Trade Commissioner in Buffalo, New York.

22 On June 30, 2005, the day immediately preceding the conversions, the grievor was receiving acting pay for the position of Consul/Senior Trade Commissioner at the FS-02 level. Subsection 46(C)(2) of the PSTCER would appear to be applicable in this case as it refers to the entitlement of employees receiving acting pay. Their entitlement is to the receipt of “…to revisions to the salary range of the higher classification level…” That subsection is reflective of what I conclude to be the general intent of the PSTCER that, when employees are acting in a position, they are entitled to receive, as stated by counsel for the grievor, “the better of the rates” between their substantive position and their acting position.

23 In this case, it was agreed that colleagues having rates of pay calculated at the FS-02 substantive level and having positions similar to the grievor received a rate of pay one increment higher than him, $94,873 rather than the $91,223 that the grievor received (see paragraph 14 of the agreed statement of facts).

Reasons

24 For all of the reasons stated above, I conclude that the grievor has proven his case and, therefore, that the grievance is allowed. The employer did not apply the PSTCER appropriately in the unique circumstances of this case. The grievor was entitled to receive a rate of pay of $94,873 as a result of the conversions that occurred on July 1, 2005 rather than the rate of pay of $91,223 that he received.

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

Order

26 The grievance is allowed.

27 The employer is hereby ordered to adjust the rate of pay for the grievor, retroactively, to July 1, 2005, from $91,233 to $94,873.

April 22, 2009.

George Filliter,
adjudicator