FPSLREB Decisions

I. Individual grievance referred to adjudication

1 On April 3, 2008, Pierre Carter (“the grievor”) filed a grievance alleging that the Department of Fisheries and Oceans (“the employer”) violated clause 57.01 of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Technical Services Group; expiry date, June 21, 2007 (“the collective agreement”). When he filed his grievance, and still at the hearing, Mr. Carter worked as an aquatic science technician for the employer in Mont Joli. His technician position is classified at the EG-05 group and level.

2 Mr. Carter claimed that the employer did not comply with the collective agreement by not providing him with a complete and current statement of the duties of his position. The relevant clause reads as follows:

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

3 The grievance was dismissed at all three levels of the grievance process and was referred to adjudication on August 19, 2009. At the outset of the hearing, Mr. Carter briefly described for me the three elements that, in his opinion, are missing from his statement of duties. First, he is required to use firearms when performing his work, and nothing to that effect appears in his statement of duties. Second, the statement of duties does not provide enough detail about the difficult working conditions associated with the position. Third, no mention is made in the statement of duties that Mr. Carter is required to supervise employees, which he does several months each year.

4 At the outset of the hearing, a discussion took place about the date of the application of my order, were the grievance allowed. After some reflection, the parties agreed that the order would apply 25 days before the date on which the grievance was filed, even though the issue of the accuracy of Mr. Carter’s statement of duties dates to the early 2000s.

II. Summary of the evidence

5 Mr. Carter adduced several documents in support of his claims, and he testified. The employer adduced no documents but called Mike Hammill as a witness. Mr. Hammill is Mr. Carter’s section head. He is very familiar with Mr. Carter’s work and duties because he has been supervising him for about 15 years.

6 Mr. Carter’s work mainly involves evaluating and identifying the distribution of marine mammal populations and studying their diets. He claims that, over a 12-month period, he works about 20% of the time in the field gathering samples or specimens and 80% in the laboratory.

7 Part of the fieldwork involves hunting several seal subspecies for later analysis. While hunting, Mr. Carter is required to use .270-, .243- and .222-gauge firearms and to ensure that those firearms are stored during missions. Initially, he had to take a firearms handling course and obtain a firearms licence. Mr. Hammill also issued him a scientific hunting licence on the employer’s behalf. Mr. Hammill admitted that Mr. Carter is required to handle firearms. However, when Mr. Hammill takes part in a mission, he has firearms responsibility. In Mr. Hammill’s opinion, a firearm is a fieldwork tool, just like a launch, a net or any other tool.

8 Mr. Carter stated that he is exposed to extremely difficult work conditions that are not properly reflected in his statement of duties. First, the fieldwork and firearms handling require a high degree of attention and concentration. Dangerous fieldwork conditions often involve walking on ice. Ice thickness is not always known, and it can vary significantly. Again, concentration is critical. Mr. Carter is also required to exert considerable physical effort when, alone or with colleagues, he must recover hunted seals, lift them into boats or drag them onto shore. Some can weigh several hundred pounds. They are also required to capture live seals, which are moving, and get them into boats once anaesthetized. Being bitten by seals or hitting rocks with boats, which sometimes have to be driven along the shoreline, are constant risks.

9 Occasionally, extreme conditions occur on the job. On ice, it is sometimes very cold, and Mr. Carter is exposed to high winds or heavy rain. Some of the outings take place in small planes or helicopters in which three or four employees spend hours scanning ice and preparing population counts. They fly in dangerous conditions. The engines are quite loud. They have to wear heavy, bulky clothing. Mr. Hammill did not deny that conditions are occasionally difficult, but in his opinion, such conditions tend to be exceptional and do not occur every year.

10 Finally, Mr. Carter stated that he regularly supervised employees. In support of his testimony, he adduced his performance assessments for the past few years, which refer to his supervisory work. Each year, Mr. Carter supervises term employees, interns or students. He played a key role in developing merit statements, recruiting those employees, their initial training and supervising their daily work, as well as generally supervising them. However, Mr. Hammill makes final hiring decisions, grants leave, renews contracts and makes other formal management decisions.

III. Summary of the arguments

A. For Mr. Carter

11 Mr. Carter argued that his statement of duties is incomplete and that it should mention handling firearms, working in difficult conditions and supervising personnel. He believes that those items should be included in the appropriate sections of the statement of duties, specifically under “Skills,” “Responsibilities” and “Working Conditions.”

12 Firearms should be added to the list of items to be handled or stored under the “Skills” section. They should also be mentioned under “Working Conditions” as part of the required attention and concentration and as part of the required physical effort.

13 Several additions are required to “Working Conditions” to better reflect the difficulties, effort and risks associated with Mr. Carter’s work. The statement of duties states that “[translation] sustained attention and concentration are required.” It should instead state, “[translation] attention and concentration are required for extended periods.” The statement of duties mentions the samples that Mr. Carter works with. Live species, such as seals and belugas, should be added. The physical effort required of Mr. Carter is also noted. That that effort is frequent and that it is occasionally required from an airplane or helicopter should be added. It would also be appropriate to add that the physical effort may be extreme and sustained when capturing and handling marine mammals and when wearing clothing or carrying equipment that is heavy and bulky. Finally, mention should also be made under “Working Conditions” of the health repercussions, ranging from minor or major injuries to chronic illnesses, incapacity or death.

14 The “Responsibilities” section of the statement of duties should include Mr. Carter’s supervision of term employees, students and interns.

15 In support of his arguments, Mr. Carter referred me to the following decisions: Cushnie v. Canada Revenue Agency, 2007 PSLRB 96; Dervin v. Treasury Board (Department of National Defence), 2009 PSLRB 50; and Jennings and Myers v. Treasury Board (Department of Fisheries and Oceans), 2011 PSLRB 20.

B. For the employer

16 According to the employer, Mr. Carter’s statement of duties accurately reflects the content of his work. Therefore, the employer complied fully with clause 57.01 of the collective agreement.

17 The employer’s opinion is that a firearm is a tool like any other used in fieldwork. It is not necessary to include each tool and the skill required to use it in the statement of duties. Furthermore, the majority of Mr. Carter’s time is spent working in a laboratory and not in the field. That also applies to difficult working conditions, which for the majority of the time refer to laboratory working conditions and not to those involving hunting on ice and travelling in small planes, which do not occur every year.

18 The statement of duties states that the assigned duties do not include the ongoing supervision of full-time subordinate employees. Mr. Carter supervises term employees, students or interns. However, he does not supervise any full-time employees on an ongoing basis. Furthermore, under the main activities section, his statement of duties states that he must act as a team leader. In the “Skills” section, it states that he must have the skills to supervise or manage support staff. Finally, Mr. Hammill makes the final decisions. Accordingly, the employer’s opinion is that the statement of duties in its current form adequately reflects Mr. Carter’s supervisory duties.

19 In support of its arguments, the employer referred me to the following decisions: Jennings and Myers, Hughes v. Treasury Board of Canada (Natural Resources Canada), 2000 PSSRB 69; Barnes et al. v. Canada Customs and Revenue Agency, 2003 PSSRB 13; Jaremy et al. and Currington et al. v. Treasury Board (Revenue Canada - Customs, Excise & Taxation), 2000 PSSRB 59; and Taylor v. Treasury Board (Revenue Canada - Customs & Excise), PSSRB File No. 166-02-20396 (19901221).

IV. Reasons

20 Adjudicators have examined the obligations stemming from provisions similar to clause 57.01 of the collective agreement several times. The wording in question gives employees the right to receive a complete and current statement of their duties and responsibilities. That does not mean that the statement of duties must necessarily include every detail of the employee’s work, the conditions under which work is performed and the skills required to perform it. That statement is even truer when the work is performed only occasionally. Furthermore, my role is not to propose the ideal wording but instead to establish whether the current wording meets the collective agreement’s requirements.

21 On the other hand, the employer may not avoid its obligations by using vague or general wording that does not fully describe an employee’s work. It may also not omit information in a statement of duties because it applies to only some of the time the employee spends performing his or her duties.

22 I will use those general principles to examine the evidence adduced and to assess the arguments presented. To that end, I will examine in order the working conditions question, the firearms question and finally the supervisory issue.

23 The “Working Conditions” section of the statement of duties reads as follows:

[Translation]

The incumbent is required to work in an office, a laboratory and in the field and to travel to remote areas using different means of transportation. The incumbent is required to work in different environments (e.g., research vessels, commercial vessels, small boats, processing facilities, aquaculture sites, remote land sites or analytical laboratories).

Attention and concentration are always required for planning and organizing projects in the laboratory or in the field, for using and maintaining equipment and instruments, for using databases, for analyzing data and information, and for drafting reports. The incumbent requires sustained attention and concentration to calibrate and evaluate instruments, measure and record biological, physical or chemical variables of different samples, verify data, and position equipment and instruments on unsteady research platforms and later recover them.

The work associated with preparing, maintaining and using equipment and instruments and collecting and analyzing samples and data requires the incumbent to remain standing, to walk and to handle light objects. When the incumbent carries out projects and participates in research surveys, field missions and studies in the laboratory, he or she is sometimes required to exert more intense physical effort, such as when climbing ship ladders, positioning and recovering instruments, travelling across uneven terrain while transporting equipment and samples, and working from small boats. In those conditions, the incumbent is exposed to inclement weather, wet and slippery surfaces, or caustic or toxic chemical products. During those activities, the incumbent may sometimes be injured (sprains or fractures) or contract illnesses from exposure to chemical products, which might lead to absences from work.

24 Mr. Carter suggests that firearms be included in the “Working Conditions” section of the statement of duties. Occasionally using a firearm does not affect his working conditions such that the current wording is not sufficient. His working conditions already indicate that attention and concentration are required, as occasionally is more intense physical effort. That also applies to his request about samples. I also consider the current wording appropriate since the term “sample” can apply very aptly to a seal or beluga that is part of a population. The statement of duties also mentions more intense physical effort when employees carry out projects or participate in research surveys. I believe that the expression “intense effort” sufficiently describes Mr. Carter’s efforts when hunting or capturing seals. There is no need to add that the effort might be extreme or sustained.

25 Still in the “Working Conditions” section, the current wording of the statement of duties is adequate for the other aspects of travelling by airplane or helicopter or of wearing clothing or carrying equipment that is heavy or bulky. The section mentions that employees might be required to travel over uneven terrain, transport equipment, be exposed to inclement weather, work from small boats, work on wet and slippery surfaces, and be exposed to caustic or toxic chemical products. It is true that no mention is made of occasional travel in airplanes, but the sometimes difficult conditions are adequately described. The same holds true for the risks associated with the work. The section states that employees might get injured or contract illnesses from exposure to chemical products. It is not necessary to add seal bites or other specifics to the list.

26 As for skills, I agree with Mr. Carter that handling and using a firearm constitutes a specific skill important and distinct enough to be mentioned in the “Skills” section of the statement of duties. As the employer argued, it is true that a firearm is a work tool, but that tool is substantially different from a fishing rod, a net or a launch. Canadian laws require firearm users to take a firearms handling course and to acquire a licence to possess or use one. Mr. Carter is required to have those qualifications and skills to perform his work. That should be reflected properly in the “Skills” portion of his statement of duties. It is of little importance that Mr. Carter uses a firearm for only a few weeks per year. He must always possess those skills or qualifications.

27 I also agree with Mr. Carter that his supervisory duties are not adequately reflected in the “Responsibilities” section of his statement of duties. It is not enough for the employer to note that an employee does not perform a task — in this case, supervising full-time employees — to then deduce that he or she performs a different task — in this case, supervising term employees. It would be much simpler and more complete to spell out the employee’s actual tasks, which include supervising term employees, students and interns under Mr. Hammill’s direction or supervision.

28 After analyzing the testimony, the submitted documents and Mr. Carter’s statement of duties, I find that the employer met its obligations under clause 57.01 of the collective agreement, except for the changes that should be made to the “Skills” and “Responsibilities” sections of the statement of duties with respect to firearms and supervision.

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

V. Order

30 The grievance is allowed in part.

31 I order the employer to amend as follows Mr. Carter’s statement of duties, within 60 days of this decision:

A.   In the “Skills” section, add that Mr. Carter is required to possess the qualifications to handle and use firearms.

B.   In the “Responsibilities” section, add that Mr. Carter assumes some supervisory responsibilities for employees hired for term positions, students and interns.

32 I will remain seized of this file for 90 days in the event of difficulties with the implementation of this order.

July 11, 2011.

PSLRB Translation

Renaud Paquet,
adjudicator