FPSLREB Decisions

I. Group grievance referred to adjudication

1 The Public Service Alliance of Canada (PSAC) filed a grievance (“the grievance”) on behalf of a group of employees (Margaret Chan, Viola Hebert, Serge Aubry, David Pritchard, David Burnside, Siobhan Neilson, Shara Martell, Don Busbe, Donna Carter, Sylvie Larocque Thibault, Cathy Wilson, Lindsay Ross, Mona Lavallée, and Cécile Gravelle) (“the grievors”), all of whom were employed, at the relevant time, as Client Services Officer (CSO) by the Office of the Commissioner of Review Tribunal, Canada Pension Plan (CPP) and Old Age Security (OAS) (OCRT or “the employer”) in Ottawa. The grievance alleges “… the employer’s failure to provide me with a complete and current statement of duties and responsibilities. This violates article 54 of my collective agreement.” As a corrective measure, the grievors “[d]emand that the employer provide me with a complete and current statement of duties in accordance with the provisions of the collective agreement.”

2 At the same time, the grievors filed a separate grievance against the employer, alleging “… that the employer is not paying me appropriately for the services I am rendering. I am required to substantially perform the duties of a higher position. As a result, the employer is not following the provision of Article 64.07 of my collective agreement.” As a corrective measure, the grievors demanded “That I be paid in accordance with my collective agreement for the performance of the duties mentioned above, retroactive to _________.” Each grievor then specified the date on which he or she started in the position in question. The employer made a preliminary objection to my jurisdiction to hear this grievance on the basis that it was essentially a classification matter. This grievance was withdrawn at the hearing.

3 All the grievors were at the time of the grievances subject to the Program and Administrative Services collective agreement between the Treasury Board and the PSAC, which expired on June 20, 2007 (“the collective agreement”). The grievance was referred to adjudication on May 11, 2011. The relevant provision of the collective agreement is clause 54.01, which reads as follows:

Article 54
Statement of Duties

…

54.01 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.

II. Summary of the evidence

A. For the grievors

4 Mr. David Burnside, one of the grievors, testified on behalf of all the grievors. At the time of the grievances, he was a Client Services Officer (CSO), classified PM-02, with the OCRT, which is responsible for the administrative processes related to CPP and OAS appeals. The OCRT is an administrative tribunal at arm’s length from the Department of Human Resources and Skills Development.

5 In his CSO role, Mr. Burnside is responsible for administering the appeal process, including scheduling hearings and providing advice and counsel to appellants or their representatives on the appeal process and the appropriate legislation. The CSOs interact daily with appellants or their representatives on matters such as scheduling hearings, helping with travel arrangements and accommodations for the appellants and the tribunal members, and helping with special arrangements or accommodations an appellant might require to participate in a hearing. These accommodations can include mobility aids, communication aids, translation etc. The CSOs are also the point of contact for all requests for hearing postponements, which can be received up to 24 hours before a scheduled hearing.

6 The grievor described how he ensures that an appellant is ready for a hearing and how he ensures that all the medical or other information, which the tribunal members will require in the appeal process, is in this file. Using his experience scheduling appeals covering different medical conditions, he advises the appellant or their representative on the types of reports, evidence or other proof required by the tribunal to consider their request.

7 The grievor typically reviews the medical file and reads the submitted appeal letter and questionnaire to determine how the appellant is disabled and from what medical condition he or she suffers. He then contacts the appellant to discuss the file, the appeal process, his or her availability and to determine any required special arrangements to ensure that he or she can fully participate in the appeal.

8 The grievor testified that he and the other grievors received training in various medical conditions, such as fibromyalgia, to better equip them to interact with appellants. Knowing the symptoms of the different conditions helps the grievor know what to expect when contacting appellants via phone. It also helps him determine the best time to contact an appellant as his or her condition could affect his or her ability to communicate at different times of the day. Based on this training, the grievor knows the type of medical information required to support an appeal. The training increased his knowledge and improved his ability to deal with the various conditions and disabilities that appellants present.

9 The grievor testified that, as part of preparing a file, he must ensure that the appellant meets the required qualifying period. Calculating the qualifying period may involve reference to reciprocal agreements between the Government of Canada and other governments since contributions might have been made to similar programs in another country. On cross-examination, Mr. Burnside agreed that a CSO is required only to know of the existence of the reciprocal agreements, not their contents. To confirm the existence of an agreement, he refers to the Service Canada website.

10 The grievor testified that, when he began as a CSO, he received five to six business days of training sessions, following which he was paired with another, more experienced, CSO, who was his “go-to” person for any questions, from where to find information on the various computer drives to what a file should contain. That person coached the grievor in how to schedule a hearing, how to calculate a qualifying period, what legislation was applicable, etc. His “buddy” was a resource person for him. The buddy taught him how to do the job.

11 The “buddy system” was used several times a day for training and provided backup if a CSO was absent from the workplace. A buddy was a resource and coach for new employees and was primarily a contact for all questions. He or she helped with the nuts and bolts of the hearing administration and scheduling process. The buddy reviewed files with a junior CSO and explained the calculation process for the minimum qualifying period, including applying any international agreements. The buddy was a coach on what the job was and how to do it.

12 As a buddy, a CSO is the primary contact for all questions on the details of the scheduling process. As proof, the grievor submitted into evidence a memo from the employer directing CSOs to consult with their buddy before consulting management. The grievors also referred to the following “Seeking Advice Procedure,” dated October 24, 2008:

Procedure:

1. Seeking Advice from Existing OCRT Resources
As questions/issues arise, staff must first seek answers by consulting with colleagues and by researching training materials, policies, procedures, past Panel Member Communiqués, and other resources that may be found on the RTN and common drives.
[Emphasis added in the original]

13 The grievor testified that it takes four to six months for a new CSO to learn the basics of the job. Learning the legislation and case law takes two to three years. A new CSO can progress to buddy status after nine months on the job, in the grievor’s experience, depending on the amount of CSO turnover. Also submitted into evidence as proof of that role was a “Buddy List,” which identified the pairings of junior and senior CSOs, their contact information and other relevant information.

14 The CSOs are required to deal weekly with requests for postponements. They typically weigh the request for legitimacy, review the file to see if other similar requests have been made and/or granted and the length of time from the request to the hearing date. They use their judgement to weigh the reasons for the request. Granting the postponement is the CSO’s call, according to Mr. Burnside. A junior CSO is expected to consult with his or her buddy before agreeing to a postponement. Granting a postponement impacts the OCRT’s resources and costs and the employer’s right to have the matter heard. When granting a postponement, the CSO must enter a rationale into the employer’s Account Management System (AMS). Contentious issues must be discussed with colleagues and then with management.

15 CSOs receive training on postponements and on when they can be expected. However, the training does not reflect the factors to consider or the thought process involved in assessing a request for a postponement. Since the filing of the grievance, the authority to grant postponements has been transferred in varying degrees to management.

16 The knowledge of medical conditions and disabilities and international agreements related to minimum qualifying periods, the requirement to act as a buddy, and the discretion to grant postponements are not reflected in the current job description, which the grievors received in 2012. The responses at all levels of the grievance process were based on a draft job description (“Client Services Officer 2.0”), which was considerably different from the actual job description which has existed since 1997 and is titled “Client Services Officer (generic)”.

17 None of the described duties are accurately reflected in the Client Services Officer (generic) job description or the Client Services Officer 2.0 job description, for that matter. The following four paragraphs need to be added, according to the grievors:

• Provides assistance, guidance and on-the–job training to new employees of the Client Services section, and provides back‑up to colleagues during absences. Provides orientation, coaching and assistance to students, agency personnel explains responsibilities of the operations division and its relationship with other divisions within the Commission, the hearing process, and explains administrative processes and procedures.
• Reviews, analyzes and makes decisions on requests for a postponement of a hearing from appellants, representatives and HRSDC based on internal policies and procedures, independently assesses need for a postponement by the OCRT based on internal policies and procedure
• Knowledge health and disease processes, treatment modalities and their side effects of specific medical conditions (ie Fibromyalgia, Chronic back pain and mental illness) and medical terminology.
• Knowledge of Reciprocal service agreements with other countries.
  [Sic throughout]

18 Ms. Carter also testified on behalf of all the grievors. She testified that she asked for a current CSO job description on a few occasions, most recently in June 2008. The employer was aware of her requests. In June 2008, the employer gave her a copy of the Client Services Officer 2.0 job description in response to one such request. That was the catalyst for filing the grievance. That document was used throughout the grievance process levels, the different grievance responses refer to it and the grievors believe that it reflects the employer’s intentions for the job description. The draft job description was last revised in 2001.

B. For the employer

19 Nancy LePitre testified for the employer. She is Director of Tribunal Operations and Communications with the OCRT and has been since July 2007. The grievors report to a supervisor who reports directly to her. She is the first level of the grievance process for Operations personnel and responded to this grievance. The basis of her response was the draft Client Services Officer 2.0 job description and not the Client Services Officer (generic) job description which is in effect for the grievors despite the fact that all responses to the grievances refer to the Client Services Office 2.0 job description. She was under the mistaken impression that the Client Services Officer 2.0 job description was in use when she received it as part of the first-level hearing. Only in 2011, when one of the grievors filed another grievance (unrelated to this grievance), was it noticed that the Client Services Officer 2.0 job description was a draft and that it had never been classified. Despite the fact that the responses were based on an incorrect assumption, the decisions at all levels of the grievance process were accurate, according to Ms. LePitre. The Client Services Officer (generic) job description fully encompasses all the duties the grievors claim are not recognized. It is current and complete, despite having been written in 1997. The grievors were given a copy of the correct job description in February 2012.

20 In Ms. LePitre’s view, a CSO’s role is to put a human face to the appeals process. They are the most significant telephone contact with an appellant before a hearing. They provide the appellant with information on the appeal process, the legislation, the necessary steps to put the best case forward, the scheduling of the hearing, the travel requirements, any accommodation required or any other concerns the applicant may have. To assist them, the CSOs are provided with a document entitled “Detailed Counselling Check Sheet” to refer to when speaking to appellants.

21 Ms. LePitre believed that the main concerns with the job description were the workload, the introduction of early counseling and the increased responsibility of having to enter data into the AMS.

22 The work is distributed to CSOs according to location and each CSO’s preference for work hours. The increased workload came as a result of added documentation concerning the Minister’s case submissions and arguments to the tribunal. In support of that assertion, the employer submitted emails from Ms. Gravelle (one of the grievors) to Ms. LePitre about an authorization to work overtime and a threefold increase due to major changes and implementations, including the following:

1. CS and addendums
2. Enhanced counseling
3. Major AMS enhancements and new features (e.g. events)
4. Case Management and Multiple applications
5. Correspondence Review Project
6. New hearing file

23 Ms. LePitre testified that the buddy system has been in place for a long time and that it is meant to ensure that the OCRT’s business is handled on a day-to-day basis, particularly in the absence of CSOs. It is similar to those used elsewhere in the public service. A buddy will cover for an absent CSO and ensure that all day-to-day transactions and correspondence required during the absence are completed. The important factors are to keep the paper moving and to manage time-sensitive materials. A CSO is also expected to look to his or her buddy for information as a means of self-learning. This could be construed as coaching by the buddy, particularly for those buddies asked to help new CSOs who have completed extensive training. The Personnel Development and Training Section is responsible for job-specific training and the new employee orientation program. Not all CSO’s are asked to coach, even though any OCRT employee is expected to help a colleague with a question. Coaches are assigned as required for limited periods. Being a buddy is a requirement of the CSO position. Ms. LePitre testified that the coaching activity is not reflected in the Client Services Officer (generic) job description.

24 In July 2007 when Ms. LePitre joined the OCRT, a “Postponement Policy” had been in place since 1999. It’s stated intention was to be “a flexible one that gives Officers the scope to exercise their best judgement on a case-by basis, taking into account the following factors…” The factors included the OCRT’s mission statement, the CPP and/or OAS legislation, the rules of natural justice, and common sense. Included in the policy were examples of situations in which a postponement should be considered and others in which the manager should be consulted. As it was felt that the CSOs required more direction on postponements, a scenario guide was developed with their help.

25 When reviewing postponement requests, the CSOs are expected to use the postponement policy, exercise their discretion and make a decision reflective of the postponement policy. If a situation is not addressed in the postponement policy, a CSO is to consult his or her manager or the director for guidance. In Ms. LePitre’s opinion, Mr. Burnside overstated the CSO’s independence to make postponement decisions. A CSO has no authority to go beyond the parameters set out in the Postponement Policy unless he or she has consulted the manager. A CSO has the discretion to refuse a request for postponement based on the history of the file and the number of previous requests. However, a CSO is required to make a decision based on the policies and procedures in place. This activity and the discretion involved are identified in the Client Services Officer (generic) job description in two places, as follows: “…consulting with Review Tribunal Panel members on a regular basis to provide advice and interpretations on policies, procedures, and the Rules of Procedure governing hearings, to discuss special circumstances or situations, such as postponements…” and “…maintaining records of all communications with parties dealing with specific hearing logistical requirements, postponements.”

26 According to Ms. LePitre, a knowledge of disease processes and treatment modalities is not a requirement of the CSO’s position. The CSOs were given awareness sessions on fibromyalgia and chronic pain, not training. Taped sessions which were prepared for training tribunal members who require such knowledge to carry out their jobs were presented to CSOs to sensitize them to the needs of appellants. This is consistent with the skill and knowledge requirement of the Client Services Officer (generic) job description, as reflected by the following:

…

Element 11: Context

The work requires knowledge of:

• The mission, mandate, objectives,

…

• The legislated appeal process for CPP and OAS appeals;

…

• Commission policies and priorities with respect to the appeal process in general,

…

• The specific needs of a diverse clientele for sensitive, fair and equitable treatment…

…

[Emphasis added]

27 The CSOs are required to be aware of the existence of reciprocal agreements related to the CPP and OAS programs. The extent of the knowledge they require is to ensure that, if an agreement exists, it is part of the reassessment process. They are to verify whether the agreement was applied to calculate the minimum qualifying period and, if not, to contact the department to determine the reason. If the appeal deals with the application of the reciprocal agreement, the CSO is to consult the employer’s legal services on the interpretation and application. In cases in which the applicability of a reciprocal agreement is in question, a hearing is automatically scheduled. This degree of knowledge is an extension of the requirement to have knowledge of the legislation, identified in Element 12 of the Client Services Officer (generic) job description.

28 Between 2007 and June 2008, when the grievance was filed, no duties were added to the CSO job, and the 1997 job description is accurate. It highlights the activities that are key to the business.

III. Summary of the arguments

A. For the grievors

29 The grievors relied on clause 54.01 to support their argument that the four additions listed in paragraph 17 should be made to the Client Services Officer (generic) job description. They pointed to the Client Services Officer 2.0 draft job description as an indication of the employer’s intent to update the Client Services Officer (generic) job description, particularly since the employer relied on that job description throughout the grievance process. It is evidence that the generic job description was neither current nor complete.

30 The grievors argued that the buddy system, which they seek to have recognized in their job description, was a beneficial tool that the employer consistently relied on. Many communiques were issued about when to consult a buddy. A buddy is the coach for CSOs with little practical experience and is essential to the success of the junior CSOs. The frequency of pairings between junior and senior CSOs continues, as is evidenced by the Buddy List submitted into evidence, which shows that five of the seven senior CSOs were paired with junior CSOs.

31 According to the grievors, the employer admitted to the logic of the buddy system. It was an important way to retain and transfer knowledge among CSOs. Mr. Burnside testified that the buddy system had two elements: training and backup. However, there is no mention of the buddy system in the Client Services Officer (generic) job description, while in the draft Client Services Officer 2.0 job description, it is mentioned twice. The grievors argued that that speaks of the employer’s mindset and their intention that it be included in the job description. Ms. LePitre admitted that it was not included in the 1997 job description and that acting as a coach/buddy is an occasional duty for some CSOs.

32 The reciprocal service agreements to which Mr. Burnside referred are also referenced in the Client Services Officer 2.0 job description, in addition to the other legislation identified in the Client Services Officer (generic) job description. That is a new knowledge requirement.

33 The grievors argued that knowledge of health and diseases is extremely important for a CSO. A CSO they must be aware of several conditions. That is why they receive training on diseases such as fibromyalgia and back pain. This knowledge affects how CSO’s interact with appellants and helps them counsel appellants on how to calculate the minimum qualifying period. Consequently, the Client Services Officer (generic) job description does not adequately reflect this degree of knowledge required for the position.

34 The evidence demonstrated that, when considering a request for postponement, a CSO must weigh a multitude of facts and decide on a case-by-case basis whether to grant it, which the employer did not deny. The Postponement Policy, the “Postponement Guidelines and Procedures,” and the “Seeking Advice Procedure” all address the requirements for CSO decision making. The CSOs make decisions on a weekly basis and rely on templates to respond. However, they choose the appropriate template, which requires that a decision be made before any communication is begun with appellants.

35 The OCRT schedules 300 to 350 hearings per month. Decisions concerning postponements have a significant impact on the OCRT’s budget and tribunal operations. Those decisions are critical to ensure the smooth and efficient operation of the tribunals, to ensure that the principals of natural justice are respected and that competing interests are weighed. This is the linchpin of the CSO role, and it should be reflected in the CSO job description. To support this argument, the grievors relied on paragraph 56 of Jennings and Myers v. Treasury Board (Department of Fisheries and Oceans), 2011 PSLRB20, which reads in part as follows:

[56]… whether an activity is key to a particular position does not depend on whether it occupies 60% of an employee’s time (as claimed by the grievors) or 5% (as suggested by Mr. Millar). A linchpin constitutes only a minuscule amount of the mass of a moving wagon train, yet its loss would entirely disrupt that train…

36 The grievors argued that an employee’s job description “… must reflect the realities of the employee’s work situation since many aspects of the employee’s rights and obligations in the workplace are bound to his or her Work Description.” They referred me to paragraph 51 of Jennings and Myers, where this statement by the Federal Court of Appeal in Currie v. Canada (Canada Customs and Revenue Agency), 2006 FCA 194, at paragraph 26, is quoted. They also referred me to paragraph 52 of Jennings and Myers, which reads in part as follows:

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. 166-2-20396 (19901221)…

37 The grievors submitted that it is important to note that in Jennings and Myers the employer was considering amending the job description. The same situation exists in this case. The Client Services Officer 2.0 job description is proof. If the buddy system was important enough to be mentioned in the Client Service 2.0 job description, it should be included in the Client Services Officer (generic) job description and it is not. Its addition to the Client Services Officer 2.0 job description speaks of the employer’s intention to add it to the Client Services Officer (generic) job description.

38 The employer admitted that the CSOs act as buddies and that that role is not in the job description. The employer cannot rely on the fact that it is only a small part of their duties, as follows, from paragraph 21 of Carter v. Treasury Board (Department of Fisheries and Oceans) 2011 PSLRB 21:

…

… the employer may not avoid its obligations by using vague or general wording that does not fully describe the 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.

[Emphasis added]

39 Finally, the grievors referred me to Dervin v. Treasury Board (Department of National Defence), 2009 PSLRB 50. That decision dealt with the use of generic job descriptions by the employer. Although their use might have been an acceptable way for the employer to satisfy its obligations under the collective agreement in that case, the job description still had to be a complete and current reflection of the work that the employee performed.

B. For the employer

40 The employer argued that the grievance should be dismissed. The crux of the grievors’ grievance, according to the employer, is not that their job duties are not completely captured or reflected in the existing job description; rather their grievance is that changes to the volume of work and to the tools used to carry out their duties are not reflected in the existing work description. Those issues do not warrant a revision to an otherwise complete and current job description. The employer relied on Fedun v. Treasury Board (Revenue Canada - Taxation), [1998] PSSRB File Nos. 166‑02‑28278 to 28288 (19980611), as the authority for the proposition that an increase in workload does not equate to a change in duties.

41 The burden is on the PSAC to convince the adjudicator that the collective agreement was breached. According to the employer, there is no evidence to discharge that burden. The evidence does not demonstrate that the items that the grievors seek to have added to their job description are not already captured in the Client Services Officer (generic) job description of 1997. What needs to be considered in deciding this matter is captured as follows in Jennings and Myers, at paragraph 52:

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; and 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.

[Emphasis added]

42 The question is whether the generic job description contains enough information so that the CSOs know what to do. There must be a distinction between activity and duty. Article 54 of the collective agreement does not specify how the job description is to be written only that it must be current. The employer submits that the ordinary meanings of “current” and “complete” should be used. As the collective agreement is silent as to timelines for what is current, the fact that the Client Services Officer (generic) job description was written in 1997 should be of no consideration. Ms. LePitre’s evidence, as the employer’s only witness, was that the CSOs’ duties have not changed since she started in 2007. What may have changed is how they are performed and not the jobs listed in Ms. Gravelle’s email, submitted as an exhibit. The grievors’ primary concern was workload.

43 The employer agreed that the CSOs administer the OCRT appeal process. Their goal is to have appeals heard by the tribunals within the employer’s policies and guidelines. However, the employer disagreed that the items identified by the grievors are significantly different from what already exists in the Client Services Officer (generic) job description. Any counselling the CSOs provide is based on a checklist provided to CSOs when they start in their positions.

44 Postponements are an integral part of the scheduling process. However, they are not a key activity; scheduling and ensuring that the hearings take place are the key activities. Any authority to postpone hearings is limited to that outlined in the postponement policy. The scenarios provided to CSOs limit their discretion and remove independence from the decision-making process. The Client Services Officer (generic) job description speaks of postponements under the section dealing with finalizing hearing schedules. The CSO is to ensure that all parties are available at the time and place specified for the hearing. A request for postponement is a blip in the scheduling process, not a key activity. Any interaction with the parties about a request for postponement is part of the scheduling process.

45 Counsel for the employer referred me to Hughes v. Treasury Board (Natural Resources Canada), 2000 PSSRB 69, at para 26, which stated the following:

[26] … 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.

46 Considering postponements is subsumed under the scheduling activity. Furthermore, little independent action is involved in approving a request for postponement. The Postponement Policy and scenarios exist and are used. The employer submitted that the CSOs’ latitude to decide whether to grant a postponement does not meet the following definition of “independent,” found in Black’s Law Dictionary, Seventh Edition:

Independent, adj. 1. Not subject to the control or influence of another <independent investigation>. 2. Not associated with another (often larger) entity <an independent subsidiary>. 3. Not dependent or contingent on something else <an independent person>.

47 The grievors asserted that the knowledge of reciprocal agreements should be included in the Client Services Officer (generic) job description because of its prominence in the draft Client Services Officer 2.0 job description. No evidence supported its inclusion in the Client Services Officer (generic) job description but for the fact that it exists in the draft Customer Services Officer 2.0 job description.

48 The knowledge of medical conditions that the grievors seek to add is limited to fibromyalgia, chronic pain and mental illness. Those are only three of the many conditions that appellants could have. The CSOs do not need knowledge of those or any other medical conditions found in the DSM4, a textbook used to aid in the diagnosis of disease. Their knowledge helps them to know what documents are required to support an appeal based on those illnesses and to counsel appellants accordingly. The CSOs make no decision on the substantive merits of an appeal based on their medical knowledge.

49 The buddy system is not a key activity for the CSOs; it is a way of conducting business used by many government employers. It can be distinguished from coaching. Pairing a new CSO with a buddy is based not only on experience but also on language competencies and work schedules. Coaching new CSOs for a brief period is not part of the ongoing buddy function. The employer submitted that, if the Client Services Officer (generic) job description is lacking in any part, it is that no mention is made of coaching on an ad-hoc basis as a key activity.

50 The employer sought to distinguish Jennings and Myers from this case as, unlike in Jennings and Myers, in which it was clear that media relations was a key activity of the position at issue, participating as a buddy, dealing with postponement requests and having knowledge of medical conditions cannot be said to be key activities of the CSO position when considering the entire workplace context and nature. The employer also distinguished the Carter case, submitted for consideration by the grievors, based on its facts. Carrying a firearm was peculiar to the grievor’s job of securing samples. Nothing in this case meets the level of firearm use in Carter. The Dervin decision can be distinguished on the basis that the evidence was uncontested, unlike in this case.

51 Finally, the employer dealt with the issue of the use of the incorrect job description in the grievance process replies. The evidence of Ms. LePitre, who replied at the first level, was that the grievors gave her the Client Services Officer 2.0 job description at the first-level grievance meeting. She had no reason to believe that it was the wrong job description. There is no evidence that the grievors asked for the correct job description before they filed their grievance. They possessed the draft Client Services Officer 2.0 job description. It is in a different format, and there is no evidence of its purpose or its source. There is insufficient evidence to jump to the conclusion that the draft job description reflects the employer’s frame of mind with respect to the content of the CSO job description. Its use was a genuine error.

IV. Reasons

52 This decision deals solely with the question of whether the Client Services Officer (generic) job description, which is applicable to the CSO’s involved in the scheduling process at the OCRT, is current and complete. I do not believe that it is. Although generic job descriptions are a common tool within the public service, particularly if the work is national in nature, and their use varies slightly from office to office, they must, according to the Federal Court of Appeal, “… 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” (see Currie, at para 26).

53 The realities of the grievors’ scheduling work exceed the limited descriptions contained in the Client Services Officer (generic) job description. The grievors’ primary responsibility is to ensure that tribunal hearings proceed efficiently and timely. However, for that to happen, a number of key activities have to occur, which have a direct impact on attaining this primary responsibility. There is more to the process than roster and scheduling services to the Review Tribunal appeal process. Counselling appellants, being familiar with the appropriate legislation, policies and procedures, and having the ability to assess a request for a postponement are all key activities that ensure the successful attainment of the ultimate goal, which is the efficient and timely conduct of appeal hearings.

54 The grievors submitted that those items are clearly identified in the Client Services Officer 2.0 job description, which Ms. Carter received in response to her request for a current job description and that all parties assumed was the appropriate job description throughout the grievance process. Only in 2012 was that assumption discovered to be inaccurate. The draft Client Services Officer 2.0 job description is an indication of the employer’s state of mind with respect to the duties of the CSOs, according to the grievors. The discrepancies between the Client Services Officer (generic) job description and the Client Services Officer 2.0 job description are confirmation that the Client generic job description is not current or complete, according to the grievors.

55 Ms. LePitre explained the use of the Client Services Officer 2.0 job description in her first level response as an honest mistake. The grievors gave it to her at the first–level grievance hearing, and it formed the basis of her response at that level. She did not know its source but noted that it was in a format different from the Client Services Officer (generic) job description. When reviewing the Client Services Officer (generic) job description in her testimony, she explained how the employer felt that it was current and accurate despite having been created in 1997 and despite the fact that someone had created a draft Client Services Officer 2.0 job description.

56 Each element that the grievors sought to have added to the key CSO functions was already in the Client Services Officer (generic) job description, with the possible exception of the coaching element of the buddy system, according to the employer.

57 Postponements were included in the generic job description under the following:

Consulting with Review Tribunal Panel Members on a regular basis to provide advice and interpretations on policies, procedures, and the Rules of Procedure governing hearings, to discuss special circumstances or situations, such as postponements, the requirement for security or interpreters at the hearing, hearing disruptions, and to confirm hearing schedules;

And

Maintaining records of all communications with parties dealing with specific hearing logistical requirements, postponements;

[Emphasis added]

58 Furthermore, according to the employer, any authority to grant a postponement is severely limited by policies and procedures and does not meet the level of being a key function.

59 Counsel for the employer referred me to Black’s Law Dictionary and the definition of “independent,” which is “not subject to the control or influence of another.” Having reviewed the policies and procedures, and having heard the testimonies of the witnesses for the grievors and the employer, I find that the authority of the CSOs is best described as a limited discretionary authority to grant postponements, which Black’s Law Dictionary defines as follows “administrative discretion”: “A public official’s or agency’s power to exercise judgment in the discharge of its duties.”

60 The authority to grant postponements, limited as it may be, has a direct impact on scheduling and resources and is a linchpin of the scheduling process.

61 The employer argues that the knowledge of medical conditions, which the grievors seek to have included in their job description, is subsumed under “Factor 4: Skill and Knowledge” of the Client Services Officer (generic) job description as follows:

The work requires knowledge of:

…

• the specific needs of a diverse clientele for sensitive, fair and equitable treatment …
• knowledge and awareness of the needs of disabled persons.

62 The grievors argued that, since they have received training on certain health conditions, it should be added to the job description as the knowledge of medical conditions. I do not accept this argument. They were not provided training to assist them with decisions about assessing medical conditions. The training that they received was intended to develop an awareness of conditions such as fibromyalgia, chronic pain and mental health issues. Such awareness facilitates their communications with the appellants and their assessments of the files for completeness. Nor do I accept the employer’s argument that Factor 4 is sufficient to encompass that awareness. The “knowledge and awareness of the needs of disabled persons” included in the generic job description is too vague and does not identify the degree of knowledge or what the specific needs are. Nor does this statement identify the purpose for which the knowledge is required.

63 However, I accept the employer’s argument that the knowledge of reciprocal agreements, which the grievors seek to have added is subsumed under “Element 12: Acts and Regulations” of the Client Services Officer generic job description as follows:

The work requires knowledge of:

• The Canada Pension Plan and regulations, the Old Age Security Act and regulations, the Quebec Pension Plan, principles of natural justice, and other legislation bearing on the appeal process

…

64 Another element that the grievors sought to have added was their participation in the buddy system, which was described at length by witnesses for both sides. The employer conceded that the generic job description is not accurate to the extent that it does not reflect the requirement to act as a coach, on an ad-hoc basis, for new employees. Adding that element would be sufficient recognition of the coaching role, in my opinion. The requirement to cover in the absence of a CSO to ensure that time sensitive materials are processed on time is a matter of good business and ensures the success of the organization but the coaching role goes beyond what is recognized in their current job description and should be reflected there.

65 To be accurate, a job description must not omit a reference to a particular duty or responsibility that the employee is required to perform. It need not contain a detailed list of all activities performed under a specific duty. It is not my role to correct the wording or the expressions used, as long as they broadly describe the responsibilities and duties to be performed (see Jennings and Myers at paragraph 52). It is my role to determine whether the description as written is accurate and current in light of the evidence before me.

66 I have concluded that the Client Services Officer (generic) job description does not meet those requirements in so far as both the coaching element of the buddy system, knowledge of medical conditions and the exercise of discretion (limited or not) to grant postponements are concerned. The wording of the Client Services Officer generic job description is insufficient to fully capture the responsibilities of those three key activities.

67 Clause 54.01 of the collective agreement requires an employee to submit a written request to secure a copy of his or her job description. The employer argued that there is no evidence that the grievors asked for the correct job description before they filed their grievance. However, I heard the uncontradicted evidence of Ms. Carter that she received the Client Services Officer 2.0 job description in response to her request for a complete and current job description and that her request gave rise to the grievance before me. I accept that evidence.

68 I find for all these reasons that the employer failed to provide the grievors with a complete and current job description. I do not have to deal with the preliminary objections about the retroactive pay grievance, as it was withdrawn by the grievors in the course of this hearing.

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

V. Order

70 I order File No. 567-02-61 closed.

71 The grievance in File No. 567-02-60 is allowed in part.

72 The employer is directed to provide the grievors with a complete and current job description that addresses the deficiencies identified in this decision within 90 days of the date of this decision by amending the Client Services Officer (generic) job description by adding the following:

1. Under “Factor 4 Knowledge”:

• Awareness of limitations and needs of persons suffering from various types of diseases.

2. Under “Key Activities”:

• Provides assistance, guidance and on–the–job training to new employees of the Client Services section, as required.
• Where appropriate, approves requests for postponements based on current OCRT policies, procedures and guidelines.

73 I will retain jurisdiction for 90 days to deal with any matters that arise related to the implementation of this order.

August 14, 2012.

Margaret Shannon,
adjudicator