FPSLREB Decisions
Decision Information
The grievors had applied to a competition for a PM-04 team leader position - three months later, and in conformity with the collective agreement, the MG classification was created, and the positions to which the grievors had applied were converted to the MG-SPS-03 group and level - the grievors then received letters advising them that they had been successful in the competition, and they were subsequently chosen to fill acting positions at the group leader level - the letters they received indicated that the positions were at the PM-04 group and level - the grievors were unaware that the team leader positions had been converted to the MG group - the grievors argued that their salaries should have been determined by applying the promotion rules to their PM-02 salaries to determine their salaries at the PM-04 level, then by applying the conversion rules to arrive at their final MG-SPS-03 salaries - clause 64.02 of the collective agreement states that an employee is entitled to the remuneration indicated on the employee’s certificate of appointment - the grievors argued that their letters of offer were their certificates of appointment - the employer argued that the certificate of appointment was the form sent to the human resources department requesting that they be appointed to the positions on an acting basis - that form initially indicated that the positions were at the PM-04 group and level, but this was later corrected by the employer - subsection 96(2) of the Public Service Staff Relations Act prevents a grievance adjudicator from modifying the terms of a collective agreement - the collective agreement in force was used in the conversion of the positions from the PM-04 group and level to the MG-SPS-03 group and level as of a date preceding the grievors’ acting appointments - all appointments to such positions, whether indeterminate or term, had to be made at the MG-SPS-03 group and level. Grievance denied.
Decision Content
Public Service
Staff Relations Act
- Date: 2009-01-23
- File: 166-34-35560 and 35561
- Citation: 2009 PSLRB 7
Before an adjudicator
BETWEEN
HÉLÈNE LANGLOIS AND ALAIN GOBEILLE
Grievors
and
CANADA REVENUE AGENCY
Employer
Indexed as
Langlois and Gobeille v. Canada Revenue Agency
In the matter of grievances referred to adjudication pursuant to section 92 of the Public Service Staff Relations Act
REASONS FOR DECISION
November 4, 2008.
(PSLRB Translation)
Grievances referred to adjudication
1 On April 8, 2003, Hélène Langlois and Alain Gobeille (“the grievors”) filed grievances alleging a violation of clause 64.02(b) of the collective agreement. The applicable collective agreement is the one signed on March 22, 2002 between the Public Service Alliance of Canada and the Canada Customs and Revenue Agency (“the employer”) for the Program and Administrative Services Group that expired on October 31, 2003 (“the collective agreement”). Clause 64.02(b) reads as follows:
64.02 An employee is entitled to be paid for services rendered at:
…
- the pay specified in Appendix “A” for the classification prescribed in the employee’s certificate of appointment, if that classification and the classification of the position to which the employee is appointed do not coincide.
2 The employer responded at the final level of the grievance process on November 26, 2004. The grievances were referred to adjudication on January 5, 2005.
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. Under 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 (“the former Act”).
Summary of the evidence
4 The facts on which these grievances are based are not contested since the parties submitted the following joint statement of facts during the hearing:
[Translation]
…
The Canada Revenue Agency and the Public Service Alliance of Canada agree on the following statement of facts:
[1] On December 12, 2003, under order 2003-2064 and in accordance with the Public Service Rearrangement and Transfer of Duties Act, the Governor in Council transferred certain parts of the Canada Customs and Revenue Agency (CCRA) to the Canada Border Services Agency (CBSA). The CCRA is now called the Canada Revenue Agency (CRA) and remains a separate agency listed in Schedule V to the Financial Administration Act (FAA).
[2] The collective agreement between the CCRA and the Public Service Alliance of Canada Program and Administrative Services Group; expiry date: October 31, 2003) applies.
[3] On January 22, 2002, a notice of offer of employment as a Team Leader, Revenue Collections Division. at the PM-04 group and level was posted on the Agency Intranet site.
[4] Alain Gobeille and Hélène Langlois applied to that selection process.
[5] On March 31, 2002, in accordance with the collective agreement, the MG-SPS position classification came into force at the Agency.
[6] On April 4, 2002, Mr. Alain Gobeille and Ms. Hélène Langlois each received a letter confirming that they had the essential qualifications for the position of Team Leader, Revenue Collections Division, and thus were eligible for consideration at the placement stage of this selection process.
[7] On May 9, 2002, Robert Dyson, Manager, Revenue Collections Division, informed Mr. Gobeille and Ms. Langlois that they had been selected for acting placement to the position of Team Leader, Revenue Collections Division.
[8] From May 6, 2002 to March 28, 2003, Mr. Gobeille and Ms. Langlois each occupied a Team Leader, Revenue Collections Division, position on an acting basis.
[9] Mr. Gobeille’s acting pay was based on the second level of the pay scale for the MG-SPS-03 group and level, that is, $48,803.00. That figure is obtained by applying the promotion rule set out in the pay and administration manual and represents the difference between the pay level of Mr. Gobeille’s substantive position at the PM-02 group and level ($45,818.00) and the pay level to which he was entitled for the acting duties he performed at the MG-SPS-03 group and level.
[10] Ms. Langlois’ acting pay was based on the third level of the pay scale for the MG-SPS-03 group and level, that is, $50,384.00. That figure is obtained by applying the promotion rule set out in the pay and administration manual and represents the difference between the pay level of Ms. Langlois’ substantive position at the PM-02 group and level ($47,374.00) and the pay level to which she was entitled for the acting duties she performed at the MG-SPS-03 group and level.
[11] At the time of the acting appointments for Mr. Gobeille and Ms. Langlois, the pay scale in effect for the PM-04 group and level had three levels: $50,509.00, $52,528.00 and $54,627.00.
[12] On April 8, 2003, Mr. Gobeille and Ms. Langlois filed grievances.
[13] On November 26, 2004, their grievances were dismissed at the final level.
5 The grievors also testified, confirming the facts. They stated that they had not been informed of the classification conversion to the MG group and level since they occupied PM-02 positions that were not subject to conversion. They argued that their acting pay in the MG-SPS-03 positions should have been calculated based on the PM-04, and not the PM-02, group and level.
6 Louise Desorcy, Administrative Renewal Advisor, and Kelly Bracken, Policy Advisor, testified for the employer. They explained the applicable Canada Revenue Agency staffing and pay rules.
Summary of the arguments
7 The grievors’ representative argued that the wording of clause 64.02(b) of the collective agreement is clear and unambiguous. He added that the offer letter constitutes the certificate of appointment, citing Parent v. Treasury Board (Revenue Canada - Taxation), PSSRB File No. 166-02-27675 (19970714), and Boisclair v. Treasury Board (Agriculture Canada), PSSRB File No. 166-02-25700 (19950403).
8 The May 9, 2002 offer letter for an acting appointment for the period from May 6, 2002 to March 28, 2003 specifies that the position of Team Leader, Revenue Collections Division, is at the PM-04 group and level.
9 The pay for that period should have been calculated according to the promotion rule set out in the pay and administration manual, representing the difference between the pay level of the grievors’ substantive positions at the PM-02 group and level and the pay level to which they were entitled for the acting duties they performed at the PM-04, and not the MG-SPS-03, group and level.
10 Accordingly, the conversion to the MG-SPS-03 group and level should have taken place after the acting appointment to the PM-04 group and level.
11 Counsel for the employer argued that the human resources action request form constitutes the certificate of appointment. He acknowledged that the certificate initially indicated PM-04 as the group and level of the acting position, but was corrected to MG-SPS-03 by the Pay and Benefits Section when they received it in June 2002, in accordance with the March 31, 2002 conversion of the position of Team Leader, Revenue Collections Division, following the March 22, 2002 signing of the new collective agreement.
12 When the offer letter was issued in May 2002, the employer was in the process of implementing the new collective agreement. Under the former Act, the employer had 90 days following the signing of the collective agreement to implement it.
13 In the position of Team Leader, Revenue Collections Division, the grievors could not be paid at the PM-04 group and level on May 6, 2002 because the position had been converted from the PM-04 to the MG-SPS-03 group and level on March 31, 2002.
14 Thus, the pay was calculated correctly for a promotion from the PM-02 to the MG-SPS-03 group and level.
15 Clause 64.02(b) of the collective agreement applies in cases of downward reclassification, for example, and not in cases of administrative error, as is the case here.
Reasons
16 Subsection 96(2) of the former Act states that an adjudicator may not amend a collective agreement, as follows:
96. (2) No adjudicator shall, in respect of any grievance, render any decision thereon the effect of which would be to require the amendment of a collective agreement or an arbitral award.
17 Under the collective agreement signed on March 22, 2002, the positions of Team Leader, Revenue Collections Division, classified at the PM-04 group and level were converted to the MG-SPS-03 group and level on March 31, 2002.
18 Any appointment, indeterminate or acting, to a position of Team Leader, Revenue Collections Division made from that date forward must have been at the MG-SPS-03 group and level.
19 Since the grievors were appointed to acting team leader positions starting on May 6, 2002, their acting pay must be calculated to reflect the difference between their substantive PM-02 positions and the MG-SPS-03 positions.
20 Although it is true that in Boisclair and Parent adjudicators Wexler and Simpson acknowledged that an offer letter might constitute a certificate of appointment, the context is different in this case. At the time of appointment, the classification indicated in the offer letter of acting appointment to the position in question no longer existed, following the March 31, 2002 collective agreement between the parties. Thus, it was impossible for the employer to appoint the grievors to positions using a classification that no longer existed; accordingly, for the positions in question, the classification in effect on May 6, 2002, that is, the MG-SPS-03 group and level, must be used.
21 For all of the above reasons, I make the following order:
Order
22 The grievances are dismissed.
January 23, 2009.
PSLRB Translation
Michel Paquette,
adjudicator