FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Paul E. Thom (“the grievor”) alleged that the Department of Fisheries and Oceans (“the employer”) had not complied with clause 20.02 of the relevant collective agreement. Specifically, he submitted that the employer had not provided him a complete and current statement of duties and responsibilities.

2 After mediation, the parties executed a memorandum of settlement on May 26, 2009 (Exhibit 7). The grievor claimed that the employer did not fulfill its obligations. On June 17, 2010, his representative requested that the Public Service Labour Relations Board (“the Board”) refer this matter to adjudication.

3 After an exchange of communication, the employer initially objected to the Board hearing this matter. Eventually, the parties consented to hold the referral to adjudication in abeyance to allow the Federal Court of Appeal to render its decision on the appeal of the Federal Court decision cited as Attorney General of Canada v. Amos, 2009 FC 1181.

4 The Federal Court of Appeal allowed the appeal. The reasons were issued on February 3, 2011, in Amos v. Attorney General of Canada, 2011 FCA 38.

5 Given the direction of the Federal Court of Appeal, the employer withdrew its objection and the Board set this matter down for a hearing.

II. Hearing

6 As noted, the parties entered into an agreement on May 26, 2009 (Exhibit 7), the relevant provision of which reads as follows:

9. The employer hereby agrees:

1. To undertake a desk audit of the above-mentioned work description.
2. To make the request for this desk audit no later than June 5, 2009.
3. To provide the grievor and his union representative with the dates of the desk audit along with a copy of the results of the desk audit.
4. To review the findings and considerations of the desk audit for implementation and, if required, submit a final product for classification.

While it is not typical to divulge the contents of a mediated settlement, the parties have done so in this case and have included the memorandum of settlement in their Agreed Statement of Facts.

7 In my view, it is important to contextualize the memorandum of settlement by setting out the wording of the grievance (Exhibit 3), which the grievor signed on August 10, 2006 and that reads as follows:

I grieve that my work description is not a complete and current statement of my duties and responsibilities, as required by Article 20.02 of my collective agreement.

I request that I be provided with a complete and current statement of my duties and responsibilities as required by Article 20.02 of my collective agreement.

8 The grievor’s terms and conditions of employment were covered by the collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada (Computer Systems Administration Group), with an expiry date of December 21, 2007 (the collective agreement). The pertinent clause of the collective agreement states the following:

20.02 Upon written request, an employee shall be entitled to a complete and current statement of duties and responsibilities of his position including the position's classification level and point rating allotted by factor and an organization chart depicting the position's place in the organization.

III. Issue

9 The first matter that I must address is whether the grievance is moot. Secondly, I must address whether the memorandum of settlement constitutes a final and binding settlement between the parties. If it does, then I must decide if the employer complied with it.

10 If I determine that the employer did not fulfill its obligation or obligations under the memorandum of settlement, I must determine the appropriate remedy.

IV. Facts

11 At the beginning of the hearing, the parties entered several exhibits and an Agreed Statement of Facts, which reads as follows:

AGREED STATEMENT OF FACTS

Background

1. At all times relevant to this grievance, grievor was employed as a CS-02 Technology Support Specialist / LAN Manager working in the Telecommunications and Network System Security Section (TNSS) in the Informatics Branch in Dartmouth, NS.

2. The reporting structure for his position is identified in the Organization Chart attached as Document 1.

3. As a result of Classification Renewal Initiative undertaken across the Department (DFO), National Model Work Descriptions (NMWDs or generics) were developed and implemented for all IM&IT staff in DFO. In July 2006, Notifications of Classification decisions were communicated to employees. The grievor was provided with his notification on or about July 24, 2006, providing him with his generic work description – national model decision # 24186D. This notification and work description is attached as Document 2.

4. On August 11, 2006, grievor filed a grievance as follows:

“I grieve that my work description is not a complete and current statement of my duties and responsibilities, as required by Article 20.02 of my collective agreement.
I request that I be provided with a complete and current statement of my duties and responsibilities as required by Article 20.02 of my collective agreement.”

The grievance is attached as Document 3

5. The grievance replies are attached as Documents 4, 5 and 6.

Mediated Resolution of Grievance

6. The grievance was referred to adjudication on August 5, 2008. The parties agreed to participate in mediation and the matter was referred to the Board’s Dispute Resolution Services for mediation. The parties reached a settlement on May 26, 2009 the Minutes of which is attached as Document 7 (“MOS”).

7. Under this MOS the parties agreed to use the work description attached hereto as Document 8, a variant to decision #24186, as the basis for a desk audit to be conducted.

8. The employer agreed to undertake a desk audit using Document 8 and to “review the findings and considerations of the desk audit for implementation and, if required, submit a final product for classification.”

9. The union and grievor agreed to withdraw the grievance (Document 3) “upon completion of the terms of settlement.”

10. The desk audit was duly completed by consultant, Dani Chambers. Her report is attached as Document 9.

11. The Consultant was requested to prepare an abbreviated version of the work description for the Senior Network Analyst position following a request from the Organization and Classification Centre of Expertise (“OCCOE”). This abbreviated version is attached as Document 10.

12. By letter dated May 18, 2010, the employer provided the grievor with a decision following the desk audit as follows:

“Management has reviewed the findings and considerations of the desk audit and concluded that the proposed changes are reflected in the existing Variant National Model Work Description 1031 – Technology Support Specialist / LAN Manager (Telecommunications), CS 02, decision number 25740. As a result, your former substantive position (13655) will be linked to the VNMWD 1031 …”

This letter is attached as Document 11.

13. The parties exchanged emails on August 23 and 24, 2010 regarding the three areas of contention related to the proposed work description. This email thread is attached as Document 12

14. The parties engaged in further discussions following which the union was provided with a proposed work description for Senior Network Analyst position on October 5, 2010. This is attached as Document 13.

15. On October 7, 2010 the union acknowledged receipt of the proposed work description and informed the employer that it was “totally unacceptable.” The email is attached as Document 14.

Relevant Events

16. Effective April 1, 2008, there was an organizational change from a regional organization to national organization (Informatics Sustainability Program – ISP).

17. Since July 6, 2006, (25 days prior to filing the grievance), the grievor acted inclusively at the CS 03 level, except for the following periods: October 2 to 27, 2006; December 8, 2008 to March 31, 2009 and February 9 to 11, 2009.

18. Effective November 2, 2009, the grievor is in a substantive CS 03 position as a result of a selection process. (sic throughout)

12 The grievor testified. The employer called Garfield (Gary) Somerton, who at the material times of this grievance was Manager of Infrastructure and Operations for the employer and Scott Graham, who at all material times to this grievance was Director, Planning and Enterprise Architecture.

13 The witnesses testified about the process adopted by a desk auditor who was identified as Dani Chambers. Having considered the testimony of all the witnesses, I conclude that there is no real difference of opinion as far as the relevant facts are concerned.

14 The grievor worked for the employer for approximately 15 years. Most recently he performed the duties of a network manager/senior analyst, working for the newly formed Shared Services Canada. However, when he filed his grievance, he was classified at the CS-02 group and level and worked for the employer as a technology support specialist/LAN manager, working in the Telecommunications and Network System Security Section (TNSS), in the Informatics Branch in Dartmouth, Nova Scotia. The grievor reported directly to Susan Paterson, who in turn reported to Mr. Somerton.

15 On July 31, 2006, the grievor filed the grievance, alleging that the employer had failed to provide him with a complete and current statement of duties and responsibilities (Exhibit 3). It was after the National Classification Renewal Initiative had been completed and he had been given the notice referred to in paragraph 3 of the Agreed Statement of Facts.

16 The employer replied to the grievance at the first level of the grievance process in October 2006 (Exhibit 4), at the second level on December 1, 2006 (Exhibit 5) and at the third level in July 2008 (Exhibit 6). The grievance was referred to adjudication on August 5, 2008.

17 The parties signed the memorandum of settlement on May 26, 2009 (Exhibit 7).

18 Ms. Chambers was retained by the employer to perform the desk audit. The evidence was that she had a standing offer with the employer and that she was considered to possess a level of expertise in work descriptions and in the classification process.

19 After engaging the parties in numerous interviews and discussions, Ms. Chambers provided her initial desk audit report in June 2009 (Exhibit 9). For the most part, the interviews and discussions with the grievor were apparently done independent of the employer and vice versa.

20 In any event, the grievor agreed with the audit results. The employer offered no feedback, but eventually Ms. Chambers was asked to abbreviate the work description so that it would be more in line with normal work descriptions. The abbreviated work description was entered into evidence (Exhibit 10).

21 On May 18, 2010, Filippo Gagliardi, Chief Information Officer and Director General, sent a letter to the grievor (Exhibit 11). Mr. Gagliardi was not called as a witness. However, in his correspondence, Mr. Gagliardi tied the work description to the Variant National Model Work Description (“the VNMWD 1031”). The VNMWD 1031 was referred to in the third-level grievance reply signed by Cal Hegge on July 4, 2008 (Exhibit 6).

22 The grievor testified that he was not at all pleased with that reversion to the employer’s position. It was particularly poignant to the grievor, as the parties had entered into the memorandum of settlement and the employer provided input to the auditor. Ms. Chambers had completed her review and rendered a work description that the grievor felt was acceptable. The grievor viewed Mr. Gagliardi’s position on behalf of the employer as a return to the original position that he had grieved and settled.

23 Discussions ensued between the parties to try to reach an agreement as Mr. Graham had been led to believe that to submit a work description for classification, an agreement was needed. On August 24, 2010, the grievor emailed Mr. Graham (Exhibit 12) and outlined his responses to the three areas of concern raised by the employer about the abbreviated work description. His responses were set out in an email, which reads as follows: (the bold portion represents the employer’s position as set out by the grievor):

Tier 3 support – It is our view that dealing with vendors is not the same as Tier 3 support. It was our position that other CS-02’s ad CS-03’s would contact me for support on areas I was a subject matter expert when they were unable to resolve issues. I would provide senior level 3 support. During the audit my supervisor and Gary did not dispute this and escalation to venders was only a part of the process that showed I was the last level support for a number of technologies. Also the audit does not reflect this statement.

Functional Direction – it is our view that functional direction is akin to supervision. During the audit Gary did not dispute that I provided this role and only requested the verbiage be change to “technical guidance/direction.” Managements comments in this section was about wordsmithing the auditor’s report. It was agreed that management would contract a professional auditor with work description experience so that suitable verbiage would be used since we were unable to agree on wording. Scott has turned this item around even further then what was attempted in the audit report itself.

National Duties – it is our view that the duties assigned were regional in scope, and that the representation of the region on national committees and working groups sufficiently encompasses the national roles identified elsewhere. This was not true for all my areas of expertise before the move to the new national organization model and our current structure was actually part of the period of the audit review where we were in a national model (time line was signed by DFO)

[Sic throughout]

24 The grievor testified that he agreed with the employer’s position on the second item, as he acknowledged that he did not direct work. He agreed that the term “technical guidance/direction” is accurate. As for the third point, the grievor agreed that the scope of his work was predominantly regional, but he noted that he was also responsible for some significant national projects. This contention was not opposed by the employer’s witnesses.

25 In any event, the evidence confirmed that there was no agreement on the final wording of the work description. As a result, the employer drafted a new statement of duties and responsibilities, dated October 5, 2010 (Exhibit 13). The grievor’s representative objected and corresponded with Mr. Graham (Exhibit 14).

26 Subsequently, the grievor claimed that the memorandum of settlement had not been complied with, referred this matter back to the Board and requested a hearing.

V. Summary of the arguments

A. For the grievor

27 The grievor submitted he signed the memorandum of settlement in good faith and that the employer, at first, took steps to satisfy its obligations. Specifically, the grievor noted that the employer retained the services of Ms. Chambers, whom it acknowledged as having a degree of expertise in classification issues.

28 As a result of her work, she authored a report (Exhibit 9) that contained a draft work description for the grievor in its Appendix B. The grievor submitted that in 2008 the employer nationalized the technical services previously offered by the unit in which he worked.

29 The grievor pointed out that the evidence of the employer’s witnesses did not take issue with the contents of the desk audit report, but rather, the issues were more with its language.

30 He also pointed out that Mr. Graham communicated with Ms. Chambers and asked for details of the supporting documentation and information that she used to reach the conclusions outlined in her report. The grievor alleged that the employer ignored the auditor’s expertise and that it sought to amend the work description she had prepared.

31 The grievor’s representative submitted that I should exercise my discretion and order the employer to draft a work description that accurately reflects the work that the grievor performed.

32 The grievor pointed out that as far as the “3 areas of contention” are concerned, there is ample evidence from which I can craft an order.

33 With respect to the issue of the concerns about the use of the phrase functional direction, the grievor noted that he had always been and still is satisfied with amending the auditor’s work description to reflect that he is instead responsible for functional guidance.

34 Furthermore, the grievor agreed that he would be satisfied if the work description reflected that the scope of his work was national/regional, rather than just regional.

35 The grievor’s representative submitted that the only issue is with the “Tier 3” or “final in-house escalation” concerns raised by Mr. Somerton. The grievor pointed out that an analysis of the evidence would suggest that the employer does not dispute that he performs those duties. In fact, the grievor noted that Mr. Graham’s evidence was that other persons at the same group and level as the grievor performed those duties and they engaged vendors.

36 As such, the grievor submitted that the work description wording as proposed by the desk auditor was accurate and that I had no evidence to the contrary.

37 In support of the grievor’s position, his representative referred me to Cushnie v. Canada Revenue Agency, 2007 PSLRB 96; Jennings and Myers v. Treasury Board (Department of Fisheries and Oceans), 2011 PSLRB 20 and Carter v. Treasury Board (Department of Fisheries and Oceans), 2011 PSLRB 89.

B. For the employer

38 The employer submitted that the first issue that I need to address is the Federal Court of Appeal’s ruling in Amos. Counsel for the employer referred me to paragraphs 65, 71 and 72 of that decision.

39 As far as the desk audit, counsel for the employer noted that paragraph 9(d) of the memorandum of settlement does not require the employer to accept the auditor’s conclusions. In the employer’s view, it would be contrary to the rights of management as generally recognized by adjudicators and as specifically set out in clause 5.01 of the collective agreement.

40 Counsel for the employer submitted that the memorandum of settlement was complied with. However, if I were to find that the employer did not comply then she would refer me to the following cases as guidance with respect to the issue of remedy: Ottawa Hospital v. Ontario Public Service Employees Union (2002), 105 L.A.C. (4th) 134; University Health Network (UHN) v. Ontario Nurses’ Association (ONA) (2011), 205 L.A.C. (4th) 154 and Veolia ES Canada Industrial Services Inc. v. International Union of Painters and Allied Trades, Local 138 (2009), 191 L.A.C. (4th) 370.

41 In conclusion, counsel for the employer noted that in the employer’s mind the end game was not necessarily to send the work description to classification.

42 Counsel for the employer also raised the issue of mootness. The employer took the position that because the grievor was, for a good portion of the relevant time, employed in an acting CS-03 group and level position, I should consider and adopt the approach of the adjudicator in Leboeuf v. Treasury Board (Department of Transport) and Public Service Alliance of Canada, 2007 PSLRB 27. Specifically, counsel submitted that I should make judicious use of the Board’s resources. In making it’s submission, the employer noted that aside from the fact that the grievor was in an acting capacity for much of the time after filing his grievance and thus would make little monetary gain, he is now no longer employed by the employer.

VI. Analysis

43 I reject the employer’s submission that this grievance is moot, for the following reasons.

44 The grievor, although employed in an acting position at the CS-03 group and level for much of the time, had a vested interest in the outcome of this grievance. At no time could he have predicted that the employer would nationalize the operation in 2008 and that, eventually, he would be transferred to a newly formed branch, Shared Services Canada. Although it is true that as far as the employer is concerned, the substantive position formerly held by the grievor no longer exists in the organization, it does not answer the question for the grievor.

45 I am of the view that this case is a judicious use of the resources of the Board.

46 In support of my finding, I adopt the reasoning of my colleague Renaud Paquet in Dervin v. Treasury Board (Department of National Defence), 2009 PSLRB 50. In my view, the issue is not academic, but rather remains tangible and concrete for the same reasons as noted in Dervin, that being, the grievor is entitled to receive an accurate statement of duties for the period of time that he occupied the position.

47 Furthermore, I am of the view that in this case the employer entered into a memorandum of settlement and to suggest that the issue is now moot is without foundation in facts or in law. It is inconsistent behaviour to settle a grievance then subsequently contest it on the basis of mootness.

48 Given that finding, I must now consider the memorandum of settlement.

49 After reviewing, in detail, the facts and analyzing several provisions of the Public Service Labour Relations Act (“the Act”), the Federal Court of Appeal, in Amos, gave the following very helpful guidance to the Board on the issue of how to deal with such matters. The Court stated the following at paragraphs 66 to 72:

[66] I am unable to accept the respondent’s contention that filing a new grievance under section 208 of the Act constitutes an effective redress for the appellant. The respondent’s position is inconsistent with the legislator’s choice to emphasize mediation as an important tool to resolve labour disputes. Procedures promoting the voluntary resolution of disputes, including mediation, are integral to achieving the labour relations and public interest objectives set out in the Preamble of the Act. Enforceability of settlement agreements is vital to the objectives of the Act. Without clear, efficient and economical means to enforce settlement agreements, mediation runs the risk of becoming meaningless and falling into abeyance. Parliament’s intention must be interpreted as giving consideration to parties’ legitimate expectations that a settlement agreement will be enforced, or will at least be enforceable within a reasonable delay.

[67] Giving way to the respondent’s solution would add years to the resolution of the appellant’s grievance. This, again, cannot be in the best interests of labour relations within the appellant’s workplace or any grievor’s workplace. I am reminded that Mr. Amos was disciplined in March 2005 and that he referred his grievance to adjudication in August 2005. Twenty-one months later, in May 2007, the parties reached their settlement. As of December 2007, the MOA was still not implemented. These events already cover a period of almost three years. Now, according to the respondent, the appellant would have to initiate a new grievance and, if need be, direct his further grounds of complaint to the Federal Court through an application for judicial review with its ensuing undue cost and delay.

[68] As well, the respondent’s solution would impose on the appellant the difficult task of remedying the alleged violation of the MOA through a new grievance to deal separately with an issue of non-compliance that would ultimately be decided by the party effectively in breach of contract, all this while the (original) grievance is still alive. Moreover, given that the allegation of non-compliance with the settlement agreement points to the employer, the procedure would be dictated by the employer’s misbehaviour. This is clearly unfair, especially because an important purpose of labour relations statutes is to level the playing field between employees and employers. Grievors like the appellant would have little incentive to settle disputes prior to or during adjudication, as doing so would constitute a waiver of access to independent third-party adjudication in exchange for what could become an unenforceable promise, or, at least, unenforceable efficiently and economically.

[69] Surely, this is not what Parliament could have intended when it legislated to ensure “fair, credible and efficient resolution” of labour disputes.

[70] A further concern of the respondent is that Adjudicator Butler, when looking at the breach, may lack jurisdiction regarding some of the issues addressed in the settlement agreement. As the settlement agreement may contain clauses in regard of matters not adjudicable under section 209, the respondent contends that the Adjudicator would be prevented from making findings on the appellant’s allegation. This argument is unconvincing. If the appellant’s allegation was about a settlement agreement plagued with contractual problems, such as fraud, misrepresentation, duress, undue influence or unconscionability, the respondent accepts that the Adjudicator would have jurisdiction to determine whether the parties’ settlement agreement is vitiated. In that case, the respondent takes no issue with former jurisprudence stating that in order to do so, the Adjudicator may examine the text of the settlement agreement for content that explicitly conveys the final and binding nature of the deal struck by the parties or analyze other evidence from which the intent of the parties to make such a deal final and binding may be reasonably inferred (Adjudicator’s reasons at paragraph 89; respondent’s memorandum of facts and law at paragraph 29). If the substance of the MOA, be it restricted to the specific adjudicable issue or not, does not impede an adjudicator’s jurisdiction under these circumstances, I fail to see why it does in our case.

[71] Here, the Adjudicator clearly dismissed the request to reopen the adjudication hearing on the merits. I interpret his decision as recognition of the validity of the settlement agreement signed by the parties. He expressed his intention to limit his intervention to the allegation of breach, well aware of the fact that the (original) grievance had not been withdrawn and that the question of its enforcement was still unresolved between the parties. He held that the allegation “of non-compliance must first be proven by the grievor unless the deputy head explicitly concedes that fact. The evidence required to establish the fact of non-compliance will be specific to that issue” (Adjudicator’s reasons at paragraph 95).

[72] In brief, the Adjudicator concluded that he had jurisdiction to consider an allegation that a party is in non‑compliance with a final and binding settlement where the dispute underlying the settlement agreement is linked to the original grievance, and where the latter falls under subsection 209(1) of the new Act (reasons at paragraph 117). Considering that the appellant had not withdrawn his grievance, I agree with the Adjudicator.

50 The first question that I must decide is whether the terms of the memorandum of settlement have been complied with and fulfilled.

51 Both parties agreed that the relevant provision of the memorandum of settlement that I must consider is paragraph 9(d).

52 In my view, that paragraph cannot be read alone, but it must be read in light of the grievance, the documentary and testamentary evidence and the collective agreement. After all, the memorandum of settlement was agreed to in order to resolve the issue in the grievance and I must consider that issue in its entire context. To do otherwise would be to take the memorandum of settlement out of context, which, in this case, would result in a conclusion that would not foster good labour relations.

53 In other words, the parties agreed that the employer had complied with paragraphs 9(a), (b) and (c) of the settlement agreement by retaining Ms. Chambers as a desk auditor and by the issuance of her report (Exhibit 9). The employer went one step further and submitted that, on the strict interpretation of the wording of paragraph 9(d) it complied by supplying the auditor’s work to the grievor. By making that submission, counsel for the employer noted that there was no requirement to send the job description to be classified, but only “if required.”

54 In my view, the employer’s interpretation fails to take into account the requirements of the collective agreement together with the documentary and testamentary evidence before me. As I have stated earlier, I find, based on the evidence before me and the testimony at the hearing, that the parties agreed to engage in the process of drafting a new job description for the grievor and agreed to hire Ms. Chambers to complete the desk audit. Good faith must be presumed. While the employer focuses on the words “if required” in paragraph 9(d), that paragraph first requires that the employer “review” the findings “for implementation”. These words must be given meaning, but the employer’s argument ignores them entirely.

55 I also find that the employer acted in good faith in executing the memorandum of settlement. The employer agreed to and did expend money in having a desk audit performed by an outside person with knowledge of classification, in general, and the federal government’s classification system, in particular.

56 I further find that the employer, by its actions after executing the memorandum of settlement, acted in a manner consistent with a belief that it was required to “review the findings and considerations of the desk audit” with the grievor “for implementation” and to send the results to classification if it differed from the prior job description that it had remitted to the grievor. To come to any other conclusion would be to conclude that the settlement was negotiated in bad faith, merely to placate the grievor, and not to settle the grievance. The employer’s argument would allow it to render the memorandum of settlement unenforceable and the grievance non-adjudicable by its sole action, leaving the grievor without recourse on what otherwise would have been a grievance that he could have had adjudicated. Surely this is contrary to the dictum in Amos and I find that it is contrary to the intention of the parties

57 I further find that the employer’s agreement to review the results “for implementation” is important and must be given meaning. All of the documentary evidence and the viva voce testimony lead me to conclude that, at the very least, these words are confirmation of the fact that the parties agreed to enter into a good faith process, based on Ms. Chambers’ expertise and the promise of a desk audit, to come to agreement on a new work description. While the majority of memorandums of settlement are drafted in rather black and white terms, dictating that the employer will, for example, withdraw a disciplinary penalty from an employee’s record in exchange for the employee withdrawing the grievance, this is not the case here, as its subject matter is necessarily more nebulous. The parties were, therefore, unable to identify a particular job description that would apply to the grievor, and instead agreed to leave at least the bulk of that work to Ms. Chambers.

58 I am unable to find, based on the evidence before me, that the parties agreed in the memorandum of settlement to have Ms. Chambers’ desk audit accepted as the job description, regardless of how it was drafted. Instead - and the evidence on the to and fro between the parties following the emission of the desk audit supports my conclusion on this - I find that the parties accepted that a certain amount of “tweaking” might take place between them. However, I find that they were both confident that the creation of a job description acceptable to both parties would be the result. For whatever reason, and through no bad faith on either part, this was not to be the case. The terms of the memorandum of settlement have, therefore, not been fulfilled and no job description was able to be reviewed for implementation.

59 In my view, the words “if required” can and must be interpreted to mean that, if, once agreement has been reached on the wording of the job description, changes were made to the complete and current statement of duties and responsibilities of the grievor, there would then be a requirement to send it for classification. But prior to the requirement in the memorandum of settlement to submit changes to classification, one finds the requirement to reach agreement on wording. This interpretation not only addresses the requirements of the collective agreement, it maintains and fosters good labour relations.

60 If the submission of the employer is accepted, the interpretation to be given the words of the memorandum of settlement would be along the lines of “if the employer, in its sole discretion, deems it appropriate”, the new job description will be sent to classification. I find that such an interpretation is not what was agreed to by the parties. The evidence of the actions of the employer reveals that it at all times understood that a job description based on the results of the desk audit would be submitted for classification.

61 That said, I will now look further into the facts. The desk audit was completed and sent to the employer and the grievor (Exhibit 9). Ms. Chambers, who was acknowledged as having classification expertise, wrote a job description (Exhibit 9, page 26 - Appendix B). The job description was acceptable to the grievor, but apparently, Mr. Somerton and the grievor’s immediate supervisor, Ms. Paterson, had concerns.

62 Their concerns were eventually put in an email from Mr. Graham, dated August 23, 2010, which the grievor responded to on August 24, 2010 (Exhibit 12). The concerns were consistently referred to as the “3 areas of contention.”

63 Mr. Graham testified that persons with expertise in labour relations at headquarters advised him that before a work description could be forwarded for a classification review an agreement with the employee on the wording was required. Based on that advice, which Mr. Graham later determined was inaccurate, efforts were made to have the grievor agree to the work description’s wording.

64 The efforts culminated in Mr. Graham, on his own initiative, perhaps with the guidance of Mr. Gagliardi, amending the work description initially drafted by Ms. Chambers that she eventually abbreviated (Exhibit 10). The amendments were sent to the grievor’s representative on October 5, 2010. The grievor rejected them on October 7, 2010 (Exhibit 14).

65 When asked, counsel for the employer indicated that the employer satisfied the terms of the memorandum of settlement when it supplied the work description, amended by Mr. Graham, to the grievor (Exhibit 13). However, that position must be tested by Mr. Graham’s words in his covering email. It is without dispute that the acronym “WD” means work description, “Fil” refers to Mr. Gagliardi and “OCCOE” is the branch responsible for classifying positions. Mr. Graham stated the following:

As a result of your recent grievance consultation with Fil, Fil has made some changes and has proposed that we take the following WD to OCCOE. Could you please review and advise asap if you and Paul are willing to take this version forward.

66 It also entirely ignores the clear wording of paragraph 9(d) as the requirement to provide the grievor with a copy of the desk audit is found in the preceding paragraph of the memorandum of settlement, paragraph 9(c). For the employer, the requirement to comply with the memorandum of settlement ends one paragraph short and ignores its agreement to go further than merely supply the grievor with a copy of a document. It also agreed to “review” it “for implementation” and submit it to classification “if required”.

67 I am unable to accept the submission of the employer that it fulfilled its obligation under paragraph 9(d) to “review” the results of the desk audit “for implementation” and, if required, for classification. While I do not fault the employer for attempting to engage the grievor in some wordsmithing following receipt of the results, I would point out that this behaviour belies an intention to agree on wording so that the document could be sent to classification. The basis of this agreement, it was understood, lay in the results of the desk audit and not, as now advanced by the employer, in VNMWD 1031.

68 Only at the hearing did the grievor become aware of the fact that Mr. Graham had, in 2011, sent his version of the work description for classification and that it had been classified at the CS-02 group and level, the same group and level at which he had been employed in his substantive position. This action is further proof that the parties intended to carry the process of drafting and classifying the grievor’s new job description through to its end.

69 Therefore, I find that paragraph 9(d) of the memorandum of settlement has not been fulfilled. I must now consider what remedy is appropriate.

70 I would be remiss if I did not articulate why I feel that this conclusion fosters good labour relations and therefore is justified. Clearly, as an adjudicator, I am required to consider what is just in the circumstances, given all the circumstances of the situation. In so doing, I cannot overlook the overriding objective of the Act, which is to promote harmonious labour relations between the parties. The Federal Court of Appeal clearly recognized as much in Amos.

71 If I were to accept the employer’s position, the result would be that the grievor would be required to file yet another grievance, challenging the contents of the document that Mr. Graham sent him. I am hard-pressed to comprehend how such a result would foster good labour relations, as suggested by counsel for the employer. If anything, it would do just the opposite, by opening the floodgates of litigation. In fact, based upon the evidence of the grievor, who presented himself as both a reasonable and intelligent individual, it is my view that he would not have executed the memorandum of settlement if he was aware of this position.

72 In all my years of experience in labour law, I have never heard any party suggest that it is in the interests of good labour relations to encourage the filing of more grievances. I am bolstered again by the clear views of the Federal Court of Appeal in Amos.

73 So, given my conclusion that the terms of the memorandum of settlement have not been fulfilled, the next question that I must determine is what is the appropriate remedy. I have decided that I should simply set aside the memorandum of settlement and hear the parties on the substance of the grievance.

74 In fact, that is the same conclusion to which the parties came during the hearing. Both sides presented evidence on what should or should not be included as a part of the complete and current statement of duties and responsibilities of the grievor. Accordingly, I am in a position to determine the issue of what is the complete and current statement of duties and responsibilities and to treat the grievance on the basis on which it was originally referred to adjudication.

75 So, what was the complete and current statement of duties and responsibilities for the grievor?

76 In considering this issue, I will start with the premise that the employer, in agreeing to hire Ms. Chambers, acknowledged that she is an individual with classification experience. She undertook a process of consulting with the grievor, Mr. Somerton and Ms. Paterson. After significant time, she offered a report to the employer, which was shared with the grievor (Exhibit 9).

77 The report had an appendix, Appendix B, which, in Ms. Chambers’ view constituted the appropriate work description for the grievor. The grievor testified that he was satisfied with it, but the employer expressed its concerns by raising the “3 areas of contention.”

78 Ms. Chambers was asked to, and did in fact draft an abbreviated version of the work description, which was for the purposes of meeting the criteria for classification (Exhibit 10).

79 In any event, after much discussion between the parties, it is my conclusion that the employer failed to recognize that the grievor, as described in paragraph 24, had agreed with its position about the issue of technical guidance/direction as opposed to functional direction. It is important to note that during Mr. Graham’s testimony he indicated that his concern was with the use of the word direction.

80 Therefore, in my view the parties are in agreement in this respect.

81 Similarly, the evidence of Mr. Graham and the grievor suggests that there is no real issue about the distinction between national and regional responsibilities. In fact, counsel for the employer suggested in argument that, as long as the job description uses the term “national/regional”, there would be no opposition. The grievor did not testify that he was opposed to this approach.

82 So, in my view, of the three (3) areas of contention the only issue still outstanding is what was referred to as either “Tier 3” or “final in-house escalation.” I accept the testimony of all witnesses that it refers to the final level of intervention within the employer to correct a technical issue. After that stage, the employer retains a vendor to correct the technical issues.

83 The grievor testified that, in fact, he was the “Tier 3” or “final in-house escalation” for a number of areas. The employer’s witnesses’ did not directly dispute that contention, but instead suggested that other technicians hired at the same group and level as the grievor also performed those duties. Their testimony in no way refutes the grievor’s clear evidence to the effect that he performed this duty.

84 However, for some unexplained reason the employer refused to add words to the work description to reflect that reality.

85 I adopt the words of my colleague in Jennings and Meyers, in which he stated the following:

[51] An employee’s job description is the cornerstone of the employment relationship. In Breckenridge et al. v. The Library of Parliament, PSSRB File Nos. 466-LP-225 to 233 and 241 to 245 (19960912), the adjudicator stated the following: “It is a fundamental, multipurpose document which is referred to with regard to classification, staffing, remuneration, discipline, performance evaluation, identification of language requirements, and career planning.” In Currie v. Canada (Canada Customs and Revenue Agency), 2006 FCA 194, at para 26, the Federal Court of Appeal wrote that a work description “…must reflect the realities of the employee’s work situation since so many aspects of the employee’s rights and obligations in the workplace are bound to his or her Work Description.” Its importance is such that, under the collective agreement, any employee is entitled to request a complete and current work description.

[52] What is a complete and current statement of the duties and responsibilities of an employee? The parties and the arbitral authorities on which they rely agree that a work description must contain enough information to accurately reflect what the employee does. It must not omit a “… reference to a particular duty or responsibility which the employee is otherwise required to perform”; see Taylor v. Treasury Board (Revenue Canada — Customs & Excise), PSSRB File No. 166-02-20396 (19901221). A job description that contains broad and generic descriptions is acceptable as long as it satisfies that fundamental requirement. In Hughes v. Treasury Board of Canada (Natural Resources Canada), 2000 PSSRB 69, at para 26, the adjudicator wrote the following: “A job description need not contain a detailed listing of all activities performed under a specific duty. Nor should it necessarily list at length the manner in which those activities are accomplished.” See also Currie et al. v. Canada Revenue Agency, 2008 PSLRB 69, at para 164; Jaremy et al. v. Treasury Board (Revenue Canada - Customs, Excise & Taxation), 2000 PSSRB 59, at para 24; and Barnes et al. v. Canada Customs and Revenue Agency, 2003 PSSRB 13. The employer is not required to use any particular form of wording to describe the duties and responsibilities of an employee and “…it is not the adjudicator’s role to correct the wording or the expressions that are used,” so long as they broadly describe the responsibilities and the duties being performed (see Jarvis et al. v. Treasury Board (Industry Canada), 2001 PSSRB 84, at para 95; and see Barnes, at para 24.

[53] The question for me to decide is whether the 2007 job description provided a complete and current statement of the duties and responsibilities of the grievors and, if not, what such a complete and current statement would include.

86 I also agree with the words of my colleague in Carter, which are the following:

[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.

87 Although I am not to wordsmith, I conclude that the complete and current statement of duties and responsibilities for the grievor must include recognition of the fact that he performed the duties of “Tier 3” or “final in-house escalation.”

88 Accordingly, I conclude that the employer must ensure that a complete and current statement of duties and responsibilities is completed by making the three changes outlined below to the abbreviated work description drafted by Ms. Chambers and referred to as Document 10 in paragraph 11 of the Memorandum of Settlement. The employer should use this document as the basis of the work description as the parties agreed on the wording of this document, with three exceptions. As I am able, after having heard the evidence, to resolve these differences between the parties, I conclude that it is this document that should form the basis of the grievor’s new work description.

89 First, the work description should be amended to note the grievor’s “technical guidance/direction”, rather than “functional direction.” Secondly, the scope of duties found throughout the work description should consistently read “national/regional”, rather than simply “regional” or “national.”

90 With respect to the issue of “Tier 3” or “final in-house escalation”, I am of the view that the abbreviated document referred to in parargraph 88, above, accurately reflects the duties performed by the grievor. The grievor’s evidence confirmed that he did that work and there was no evidence from the employer to the contrary. I would have expected that, if there was a dispute about the work performed by the grievor the employer would have called his immediate supervisor to testify; they did not.

91 Therefore, I conclude that the work description authored by the auditor with respect to that issue accurately reflects the work performed by the grievor.

92 Obviously the above changes will result in an alteration to the grievor’s former work description. As such, the employer must send the new work description for classification review.

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

VII. Order

94 I order as follows:

• The Memorandum of Settlement is set aside. The grievance is allowed.
• The employer must forthwith provide the grievor with a complete and current statement of duties and responsibilities which must, in turn, be forwarded for a classification review.
• The abbreviated work description drafted by Ms. Chambers and referred to as Document 10 in paragraph 11 of the Memorandum of Settlement will form the basis of this statement of duties with the following alterations only: the document will be amended so that it reflects that the grievor is responsible for “technical guidance/direction” not “functional direction” and to reflect the “national/regional” scope of his responsibilities.

95 I will remain seized of this matter for 45 days in the event that the parties do not agree on the implementation of this decision.

March 19, 2012

George Filliter,
adjudicator