FPSLREB Decisions

Individual grievance referred to adjudication

1  Ian Bradbury (“the grievor”) is a marine security inspector. On July 17, 2007, he filed a grievance alleging that the Department of Transport (“the employer”) violated the collective agreement signed by the Treasury Board and the Public Service Alliance of Canada for the Technical Services bargaining unit on March 14, 2005 (“the collective agreement”). The grievor alleged that the employer violated the collective agreement by not paying him a terminable allowance from October 23, 2006 to June 29, 2007, as per Appendix P. During that period, the grievor was acting in a position classified at the TI-06 group and level. The relevant section of Appendix P reads as follows:

…

In an effort to resolve retention problems, the Employer will provide an Allowance to incumbents of specific positions for the performance of duties in the Technical Inspection Group.

Employees in Transport Canada, Transport Safety Board, Public Works and Government Services Canada, and Fisheries and Oceans, Canadian Coast Guard who are incumbents at the TI-5 through TI-8 levels in the following positions and who possess the listed qualifications shall be entitled to Terminable Allowances as listed below.

- Marine Inspectors, Surveyors, Investigators and DFO-CCG Vessel Support Group employees who have knowledge and extensive experience in the design, construction, operation or maintenance of vessels as demonstrated by possession of the appropriate marine certificate of competency or university degree/diploma, combined with extensive experience in the field.

…

2 The employer admits that, from October 23, 2006 to June 29, 2007, the grievor occupied a marine inspector position as described in Appendix P of the collective agreement and that he was an incumbent of a TI-06 position at Transport Canada. The only issue between the parties is whether, at the time of the grievance, the grievor possessed knowledge and extensive experience in the design, construction, operation or maintenance of vessels as demonstrated by the appropriate marine certificate of competency or a university degree/diploma, combined with extensive experience in the field. The employer refused to pay the grievor the terminable allowance because it claims that the grievor does not possess those qualifications. The grievor claims that he does.

3 At the beginning of the hearing, the grievor argued that the grievance should be considered as continuous because the aggrieved situation still exists; he again occupies an acting TI-06 position. The employer objected. If the grievor felt that he was aggrieved again after 2007, he should have filed a new grievance.   

Summary of the evidence

4 The grievor testified. He adduced 15 documents in evidence. The employer did not adduce any documents. It called Daniel Michaud as a witness. Mr. Michaud is Chief of Marine Security Operations at Transport Canada. He made the decision not to pay the terminable allowance to the grievor from October 23, 2006 to June 29, 2007.

5 The grievor is an experienced security specialist with 12 years of experience in providing security advice and analysis, in assessing anti-terrorism threats and risks, and in preparing security and emergency plans and training programs. In 2005, the grievor obtained a diploma in Security Management after completing a full-time two-year program at Algonquin College in Ottawa. The grievor also completed several short-term training programs including the following: Anti-Terrorism Specialist, Force Protection Officer and Close Protection Specialist. The grievor also completed the following training offered by the employer or the Canadian Coast Guard: Marine Security Inspection and Enforcement, Marine Security Assessment, and CCG Ship Security Officer.  

6 In June 2006, the employer provided the grievor with an official credential card, which authorized him to perform certain duties under the Marine Transportation Security Act, s.c. 1994, c.40. In June 2009, the employer also provided the grievor with a certificate of proficiency as a ship security officer. Those documents formally recognized the grievor’s competencies in the security field.

7 The grievor adduced in evidence documents about ship security and security certification, which I reviewed. The grievor explained that a vessel or a ship cannot navigate without an approved valid security certificate. The grievor also explained that security assessment is a more complex function than security inspection. Finally, the grievor testified that no university in Canada offers a program in security management. The highest diploma in security management in Canada is the college diploma offered by Algonquin College in Ottawa.

8  Mr. Michaud explained the difference between a certificate of proficiency and a certificate of competency. The employer awards both types of documents to its employees when they meet the requirements. Certificates of proficiency are issued when employees possess the necessary skills to perform specific duties. This type of certificate could be obtained after a few hours or a few days of training. It requires much more training to obtain a certificate of competency. The employer awards certificates of competency to employees with a minimum of 36 months of experience at sea, combined with the necessary training and the successful completion of written and oral exams. Mr. Michaud testified that the grievor does not possess a certificate of competency.        

Summary of the arguments

9 The grievor argued that a ship cannot sail unless it has an approved security certificate. Security began to be an important issue after the September 11, 2001, events. Organizations now demand security skills. To retain employees in high-demand occupations, the parties agreed to an allowance for those employees. The grievor occupies one of those positions, so he should be paid that allowance. The security functions performed by the grievor are part of the maintenance and operation of vessels referred to in Appendix P of the collective agreement.

10  The grievor also argued that he meets the requirements of Appendix P of the collective agreement. He possesses the highest diploma in security offered by an institution in Canada. He also has extensive experience in the security field.

11 The grievor referred me to the Canadian Oxford Dictionary and to the definitions of the words “maintain” and “operate.” 

12 The employer argued that the grievor does not meet the requirements of Appendix P of the collective agreement because he does not possess a certificate of competency or a university degree or diploma. Appendix P was not written to reward good employees but to be a measure to retain employees in some occupations. The employer’s refusal to pay the allowance to the grievor is in no way a reflection of the employer’s appreciation of his work.

13 The employer referred me to the following decisions: Anderson et al. v. Treasury Board (Department of National Defence), 2009 PSLRB 93; Arsenault et al. v. Parks Canada Agency, 2008 PSLRB 17; Baker v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 34; Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112; Lessard v. Treasury Board (Department of Transport), 2009 PSLRB 34; Stevens et al. v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 34; and White v. Treasury Board (Solicitor General Canada – Correctional Service), 2003 PSSRB 40.     

Reasons

14 The parties agreed that the grievor occupies a position covered by Appendix P of the collective agreement. The issue between the parties is whether he meets the knowledge and experience requirements that it outlines. These can be demonstrated in two ways. The first way is for the employee to have the appropriate marine certificate of competency. The second way is to possess a university degree or diploma combined with extensive experience in the field. At the hearing, both parties explicitly agreed with my understanding that the extensive experience requirement only applies to employees who would qualify with a university diploma or degree, since extensive experience is already required to obtain a certificate of competency. 

15 Mr. Michaud testified that the employer awards certificates of competency to employees with a minimum of 36 months of experience at sea, combined with the necessary training and the successful completion of written and oral exams. He also testified that the grievor does not possess a certificate of competency but rather a certificate of proficiency, which is substantially different. I believe Mr. Michaud’s testimony. Furthermore, the grievor does not possess a university diploma or degree. Instead, he has a diploma from Algonquin College. That institution is a college, not a university. It might be an excellent college, but it is not a university as specified in Appendix P of the collective agreement.

16 Because the grievor does not have a certificate of competency or a university diploma or degree, he does not meet the condition specified in Appendix P of the collective agreement. Consequently, the employer did not violate the collective agreement by not paying him the terminable allowance described in Appendix P.

17 I do not find it necessary to deal with the parties’ positions on the continuous nature of the grievance. My ruling on that issue would be purely academic because the grievor did not meet the criteria of Appendix P of the collective agreement when he grieved; nor did he meet it when I heard the grievance on June 2, 2011.

18 I have reviewed the jurisprudence submitted by the employer. Those decisions were not helpful to deciding this grievance.

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

Order

20 The grievance is dismissed.

June 21, 2011.

Renaud Paquet,
adjudicator