FPSLREB Decisions

Individual grievances referred to adjudication

1 On September 12, 2006, Leeann McGovern filed three grievances against the Parks Canada Agency (“the employer”). On September 25, 2006, Christophe Rivet filed two grievances against the employer. In a nutshell, Ms. McGovern and Mr. Rivet (“the grievors”) are challenging the accuracy of their work description and the employer’s decision to refuse to pay them acting pay for allegedly performing duties at a higher classification level.

2 It was made clear by both parties at the hearing that the only remaining issue between them was the payment of acting pay for the grievors. Both were paid at the AR-03 group and level, and they claim that they performed duties normally performed by employees classified at the AR-04 group and level. Ms. McGovern is claiming acting pay from December 30, 2004 to April 23, 2006, and from October 23, 2007 to December 2, 2007. Mr. Rivet is claiming acting pay from April 10, 2006 to December 2, 2007.

3 The relevant collective agreement is between the employer and the Public Service Alliance of Canada; expiry date, August 4, 2007. The clause covering acting pay reads as follows:

58.07 Acting Pay

(a) When an employee is required by the Agency to substantially perform the duties of a higher classification level in an acting capacity and performs those duties:

(i) if she/he falls under letter code "X" (as defined in the Hours of Work Code), for a period of at least three (3) consecutive working days/shifts;

(ii) if she/he falls under the letter code "Y" (as defined in the Hours of Work Code), for a period of at least one (1) full working day/shift;

the employee shall be paid acting pay calculated from the date on which she/he commenced to act as if she/he had been appointed to that higher classification for the period in which she/he acts.

…

Summary of the evidence

4 The parties jointly submitted a series of documents relevant to the grievances. Even though they did not necessarily agree on the opinions expressed in some of those documents, neither party challenged their validity. The grievors were called as witnesses. Robert Thompson was also called as a witness. When the grievances were filed, Mr. Thompson was the employer representative in its Atlantic Region. The grievors ultimately reported to him. He also made the decision not to pay the grievors acting pay for the periods at issue.

5 When their grievances were filed, the grievors performed the duties of planners in the Atlantic Region. Some employees are titled Planner I and others are Planner II. Planners I are classified at the AR-03 group and level and Planners II at the AR-04 group and level. The grievors alleged that they performed Planner II duties for the periods at issue.

6 The Planner I and II work descriptions were adduced in evidence. Mr. Thompson testified that most of a planner’s work is preparing management plans about the operations of national parks or sites or protected heritage areas. Mr. Thompson testified that Planners I and II have comparable duties. The difference is that Planners II prepare management plans of greater complexity or scope. For example, Planners II provide management planning services in Banff or Jasper, but Planners I provide the same service for smaller facilities or sites. According to Mr. Thompson, this distinction is justified by the wide variance in the complexity of the duties performed in large sites as compared to small sites. On that point, no evidence was adduced by the grievors to contradict Mr. Thompson. Instead, the grievors pointed out that they performed duties better reflected by the Planner II work description.

7 From December 2004 to March 2006, Ms. McGovern worked on the Monument-Lefebvre management plan. In fall 2007, she managed the management planning process for the national historic sites of southwest Nova Scotia. This project included five national historic sites in a single planning process. In summer 2005, Ms. McGovern was also involved in on-site consultations with campers at Kouchibouguac National Park. Ms. McGovern testified that she conducted those consultations with a lead Planner II. Ms. McGovern gave other examples of her work and how, according to her, it related to the Planner II work description.

8 Mr. Rivet was hired as a Planner I on April 10, 2006 to replace Ms. McGovern, who was leaving temporarily on maternity leave. Until she returned from leave, Mr. Rivet performed her duties. In addition, Mr. Rivet progressively started to work and prepare material for a project to propose the Grand Pré, Nova Scotia, site as a nomination for a United Nations Educational, Scientific and Cultural Organization (UNESCO) World Heritage Site. It rapidly became a large part of his duties. The project involved the three levels of government, 1000 hectares of privately owned land and a large budget. In 2007, Mr. Rivet was assigned as project manager for the World Heritage Site nomination proposal. When the employer decided in early December 2007 to move forward with the proposal, it gave Mr. Rivet an acting appointment at the AR-04 group and level (Planner II). Mr. Thompson admitted that the Grand Pré project has a large complexity and scope.

Reasons

9 Even though it could be better reflected in the planners’ work descriptions, the evidence presented at the hearing convinced me that the key elements distinguishing Planners II from Planners I are the complexity and scope of the management plans that they prepare and manage. Generally, larger and more important sites imply more complex work for planners. This is reflected by different wording in the first core activity of the two work descriptions. The Planner I work description refers to preparing unit management plans. The Planner II work description refers to multiple or single complex management projects and management plans. That first core activity is the main activity performed by planners. Based on that difference, the grievor’s burden changed to proving that they were substantially performing the first core activity of the Planner II work description.

10 Ms. McGovern did not prove that she worked on complex management plans for large sites from December 30, 2004 to April 23, 2006, and on her return from maternity leave from October 23, 2007 to December 2, 2007. During those periods, my assessment of the evidence adduced at the hearing led me to believe the employer’s view that Ms. McGovern worked on managing plans for relatively small sites. Consequently, I conclude that Ms. McGovern did not substantially perform the duties of a Planner II.

11 Mr. Rivet is claiming acting pay from April 10, 2006 to December 2, 2007. In 2006, he simply took over the duties left vacant by Ms. McGovern’s departure on maternity leave. I have already concluded that those duties did not justify acting pay at the Planner II (AR-04) pay level. However, starting at an unspecified date in January 2007, Mr. Rivet began working on the Grand Pré project. There is no doubt in my mind, and I should add in the employer’s mind, that this project was major and complex. On that point, the employer recognized the complexity of the project and provided acting pay to Mr. Rivet starting in December 2007, when it decided to move forward with the nomination proposal to the UNESCO. However, I believe that Mr. Rivet began in early 2007 to substantially perform the duties of a higher classification. The decision to pay him acting pay should not have been determined by the date on which the employer decided to go ahead with the project, but rather the date on which Mr. Rivet started to work on the project at the employer’s request. The key factor to receiving acting pay is whether a person substantially performs duties and not whether that performance leads to something else, in this case to make the UNESCO submission.

12 It is clear that, starting in early March 2007, Mr. Rivet spent a lot of time on the Grand Pré project. It is also clear that he worked on the project in January 2007, but I do not know for how long. For that reason, I order that he be paid acting pay effective the first Monday of February 2007 (February 5).

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

Order

14 The three grievances filed by Ms. McGovern are dismissed.

15 The two grievances filed by Mr. Rivet are partially allowed.

16 I order the employer to pay acting pay at the AR-04 group and level to Mr. Rivet for the period from February 5, 2007 to December 2, 2007.

June 9, 2011.

Renaud Paquet,
adjudicator