FPSLREB Decisions

I. Individual grievances referred to adjudication

1 On March 10, 2006, the grievors filed individual grievances against the Department of National Defence (“the employer”). The grievors essentially challenged their employer’s decision to not pay them acting pay for duties that they performed between May 2002 and March 2006 for positions classified at a higher level, pursuant to clauses 47.02 and 47.05 of their collective agreement.

2 The applicable collective agreement was concluded between the Treasury Board and the Professional Institute of the Public Service of Canada for the Computer Systems (CS) Group; expiry date, December 21, 2004 (“the collective agreement,” Exhibit 1, tab A).

II. Summary of the evidence

3 At the hearing, the parties called no witnesses and, instead, presented a joint statement of facts (Exhibit 1, tab 1).

4 It was acknowledged that, at the time of the facts at issue, the positions held by Patrick Lagueux and Robert Tellier in the Signals Branch at the base in Montreal were classified at the CS-01 group and level, while the position held by John MacIsaac was classified CS-02. Erick D’Amours held a position classified CS-01 in the Signals Branch at the base in St-Jean-sur-Richelieu, while Marc-André Leclerc held a position classified CS-02 at the same location.

5 The evidence showed that a restructuring took place in 1999 involving technology services provided at the Valcartier, Montreal and St-Jean-sur-Richelieu bases. Since functional responsibility for the metropolitan area network would, from then on, be assumed by the Valcartier base, it was agreed that employee P.P.’s position, classified CS-02 and located at the Valcartier base, would be reclassified to the CS-03 group and level as of September 14, 1998. At the hearing, the parties’ representatives also stated that, after the restructuring, the position of employee F.B., who also worked at the Valcartier base, was reclassified from CS-01 to CS-02 on September 14, 1998.

6 At the hearing, the parties’ representatives also agreed that neither of the employees P.P. and F.B. ever performed the duties of positions classified CS-03 and CS-02, even though they were reclassified to those levels respectively in September 1998. Therefore, in spite of the reclassification, both employees continued to perform the duties of positions classified CS-02 and CS-01, while receiving the respective pay for positions classified CS-03 and CS-02, as if they were performing those duties. However, the evidence showed that, further to a classification decision on May 10, 2006, those two positions were reclassified downward to CS-02 and CS-01 retroactively to September 14, 1998 (Exhibit 1, joint statement of facts, paragraph 30).

7 The evidence also showed that, in 2002, Mr. Lagueux, Mr. D’Amours and Mr. Tellier, all CS-01s at the Montreal and St-Jean-sur-Richelieu bases, compared their duties to those of F.B., a CS-02 at the Valcartier base. They realized that, even though F.B. performed the same tasks as them, his position was classified at a higher level, namely, CS-02 (Exhibit 1, joint statement of facts, paragraph 13).

8 It was also revealed that Mr. MacIsaac and Mr. Leclerc, CS-02s at the St-Jean-sur-Richelieu and Montreal bases, also compared their duties in May 2002, to those of P.P. at the Valcartier base. Mr. MacIsaac and Mr. Leclerc realized that, although P.P. performed the same duties as them, his position was classified CS-03 (Exhibit 1, joint statement of facts, paragraph 14).

9 The evidence also showed that, as of May 2002, the grievors believed that the duties that the employer had assigned to them were undervalued (Exhibit 1, joint statement of facts, paragraph 15).

10 That finding by the grievors gave rise to a number of labour relations committee-management meetings as well as to many function reviews and classification evaluations. It is important to note that, starting in 2002, the dispute between the grievors and the employer was already deemed a “[translation] classification issue” (Exhibit 1, joint statement of facts, paragraph 16).

11 Moreover, the parties agreed that “[translation] [a]ll the duties performed by the grievors are set out in the work descriptions. The employer never asked them to perform duties in addition to those outlined in their work description” (Exhibit 1, joint statement of facts, paragraph 21).

12 The evidence revealed that a classification committee report was prepared in June 2005 (Exhibit 1, joint statement of facts, paragraph 28).

13 The evidence also showed that, on March 10, 2006, the grievors filed the grievances that are the subject of this decision (Exhibit 1, joint statement of facts, paragraph 29).

14 On May 10, 2006, an official decision by the employer’s classification committee was issued, confirming that the positions held by Mr. Lagueux, Mr. D’Amours and Mr. Tellier were at level CS-01. The decision also confirmed that the positions held by Mr. MacIsaac and Mr. Leclerc were at level CS-02. As mentioned, that decision reclassified the positions of P.P. and F.B., at the Valcartier base, down to levels CS-02 and CS-01 respectively, retroactively to September 14, 1998 (Exhibit 1, joint statement of facts, paragraph 30).

15 In August 2006, the grievors filed classification grievances (Exhibit 1, joint statement of facts, paragraph 30).

III. Summary of the arguments

A. Arguments of the employer’s representative

16 At the beginning of the hearing, the employer’s representative challenged my jurisdiction to hear the grievors’ grievances on the grounds that, essentially, they are classification grievances. According to her, paragraph 209(1)(a) of the Public Service Labour Relations Act (“the Act”) prescribes what can be referred to adjudication; classification grievances are not listed. Moreover, under section 7 of the Act and paragraph 11.1(b) of the Financial Administration Act, the employer has the exclusive right to classify positions; an adjudicator appointed under the Act does not have jurisdiction to hear classification grievances.

17 The employer’s representative maintained that the wording of the grievors’ grievances clearly referred to classification and that the appropriate recourse was the right to file a classification grievance. The grievors exercised that right in August 2006, as demonstrated by the adduced evidence (Exhibit 1, joint statement of facts, paragraph 30). The employer’s representative maintained that these classification grievances are not adjudicable.

18 In support of her arguments, the employer’s representative referred me to Comiskey v. Jensen et al., 2012 PSLRB 22, Doiron v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 77, and Bungay et al. v. Treasury Board (Department Public Works and Government Services), 2005 PSLRB 40.

19 The employer’s representative argued that a distinction had to be made between a classification grievance and an acting pay grievance. On that point, she referred me to paragraphs 59 and 60 of Bungay et al., which outline as follows the test for differentiating between a classification grievance and an acting pay grievance:

[59] In summary, some of the indicators that a grievance is a classification grievance and not an acting pay grievance (and therefore where an adjudicator has no jurisdiction) are:

• the claim for acting pay is an ongoing claim and not for a specified period;
• the grievor has sought a reclassification, either informally or through a classification grievance;
• the grievor continues to perform the duties he/she has always performed and only the classification levels in the workplace have changed; and
• the acting pay grievance is based, in part, on a comparison with similar positions in other work areas.

[60] This is not an exhaustive list and, in my view, some of the factors considered alone cannot be determinative of jurisdiction.

20 Addressing the Bungay et al. test criteria one by one, the employer’s representative submitted that the grievors did not show that the claim was for a specified and determined period, that they each filed a classification grievance in August 2006, that their colleagues’ duties never changed, that they never had additional duties to perform, and that the duties and functions that they performed were those outlined in their work descriptions (Exhibit 1, joint statement of facts, paragraph 21).

21 Finally, the employer’s representative submitted that, in this case, even though the grievors’ duties and those of their Valcartier colleagues were compared, it should be noted nonetheless that the grievors did not compare their duties to those of a higher position but instead to those of people with a higher classification level.

22 Therefore, the employer’s representative asked me to find that these are classification grievances that could not have been referred to adjudication and that, consequently, they have to be dismissed for lack of jurisdiction.

23 However, according to the employer’s representative, were I to find that these are not classification grievances, I would have to dismiss them anyway because the grievors did not demonstrate that clause 47.05 of the collective agreement was violated.

24 The employer’s representative maintained that the wording of clause 47.05 of the collective agreement is very clear and that, to obtain acting pay, the grievors would have to show that they performed the duties of a position classified at a higher group and level in an acting capacity. On that point, the employer’s representative referred me to paragraph 21 of Exhibit 1, the joint statement of facts, which confirms that the duties that the grievors performed were those outlined in their work descriptions and that they never performed duties at a higher level.

25 According to the employer’s representative, even though the grievors performed the same duties as their CS-02 and CS-03 colleagues at Valcartier, they never performed the duties of a position classified at a higher group and level.

26 On that point, the employer’s representative referred me to four conditions set out in Cooper and Wamboldt v. Canada Revenue Agency, 2009 PSLRB 160, at para 38, to determine whether an employee has the right to acting pay. In that case, the adjudicator had to decide on a clause of the collective agreement of the same nature as clause 47.05 of the collective agreement in this case. Paragraph 38 reads as follows:

38 It seems to me that clause 64.07(a) of the collective agreement by its very nature requires the grievors to establish that four things have occurred. They are as follows:

• There must be a requirement by the employer that the employee perform certain duties.
• The employee must be required to substantially perform duties at a higher classification level.
• The employee must perform those duties in an acting capacity.
• The employee must perform those duties for at least three (3) consecutive working days or shifts.

27 Addressing each condition set out in Cooper and Wamboldt, the employer’s representative concluded that there was no evidence that those conditions had been fulfilled, and consequently, the grievors were not entitled to acting pay.

28 Under the circumstances, the employer’s representative asked me to dismiss the grievances. Alternatively, she argued that, if I allowed them, the decision in Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (C.A.)(QL), would apply and thus limit the employer’s responsibility.

B. Arguments of the grievors’ representative

29 With respect to the employer’s preliminary objection that no adjudicator has jurisdiction to hear a classification grievance, the grievors’ representative argued that the objection was unfounded because these grievances are clearly about pay, pursuant to clause 47.05 of the collective agreement (Exhibit 1, joint statement of facts, paragraph 3).

30 According to the grievors’ representative, these grievances arose from a right set out in the collective agreement. Consequently, an adjudicators has full jurisdiction under paragraph 209(1)(a) of the Act to decide these acting pay grievances.

31 In support of his argument that these are pay and not classification grievances, the grievors’ representative reviewed each criterion set out in Bungay et al. Applied to the facts in this case, the grievors’ representative maintained that those criteria support the argument that these are pay and not classification grievances.

32 The grievors’ representative also argued that the grievances cover a specified period of four years. According to him, the grievance discussions between the parties began in 2002 and were about pay. The discussions ended in 2006 when the employer’s position became clear and definitive. The grievors’ representative stressed that the fact that the discussions took four years should not be held against the grievors.

33 As for the second criterion set out in Bungay et al., about filing a classification grievance, the grievors’ representative pointed out that, although the grievors filed classification grievances, they did so five months after filing the pay grievances at issue in this case (Exhibit 1, joint statement of facts, paragraphs 29 and 30).

34 According to the grievors’ representative, the fact that the classification grievances were filed five months after the acting pay grievances were filed has no bearing on the outcome of these grievances. He stated that it was especially important that these grievances clearly were based on a clause of the collective agreement when filed, namely, acting pay.

35 The grievors’ representative maintained that the fact that the grievors performed exactly the same duties as their colleagues at the Valcartier base was not challenged. It is a matter of fairness. According to him, an employee performing the same duties as another must receive the same pay.

36 The grievors’ representative also pointed out that it is not a question of infringing on management’s right to organize the workplace. He referred me to paragraphs 7, 17 and then 29 of Chadwick v. Canada (Attorney General),2004 FC 503, as follows:

[29] In the present case, there is no evidence presented to this Court that the applicant had previously sought a re-classification of her position, either through informal inquiries or through a classification grievance. It does not appear, therefore, that her grievance for acting pay that was forwarded to the PSSRB pursuant to subsection 92(1)(a) was a backdoor attempt to achieve indirectly through adjudication that which could only be achieved through a different grievance procedure related to classification, pursuant to section 91 of the PSSRA. Furthermore, the applicant is not requesting acting pay up to the present time, but acting pay for a specific time period when she believes that she was required to substantially perform the duties of a VM-02 position for at least ten consecutive days. Such a request is clearly one for remuneration and grounded in Clause G1.08 of her collective agreement. This matter is correctly within the jurisdiction of an adjudicator of the PSSRB, and the adjudicator in this case erred in determining it not to be so.

37 The grievors’ representative also referred me to Stagg v. Canada (Treasury Board), [1993] F.C.J. No. 1393 (T.D.)(QL), in support of his argument that these are indeed pay grievances arising from the collective agreement. Woodward v. Treasury Board (Fisheries and Oceans Canada), 2000 PSSRB 44, was also cited as an example of a decision in which an adjudicator found that he had jurisdiction.

38 As for the merits of the grievances, the grievors’ representative argued that the internal structure was problematic. He also maintained that management always recognized that the grievors performed the same duties as their colleagues at the Valcartier base.

39 According to the grievors’ representative, it is clear that the grievors performed the same duties as P.P. and F.B. at the Valcartier base. Therefore, the grievors should have been paid at the same rate. It is a question of fairness.

40 In conclusion, the grievors’ representative asked me to allow the grievances.

IV. Reasons

41 On March 10, 2006, the grievors filed identical individual grievances that read as follows:

[Translation]

Since May 2002, we have been trying to resolve the issues with our work description and pay through informal discussions before resorting to an official grievance. Following discussions between the Institute and management on March 6, 2006, it became clear that the problem could not be resolved informally. The employer has not been paying me the pay to which I am entitled under clauses 47.02 and 47.05 since May 2002. (end of statement)

42 Clauses 47.02 and 47.05 of the collective agreement read as follows:

47.02 An employee is entitled to be paid for services rendered at:

1. the pay specified in Appendix "A" for the classification of the position to which he is appointed, if the classification coincides with that prescribed in his certificate of appointment;
   
   or
2. the pay specified in Appendix "A" for the classification prescribed in his certificate of appointment if that classification and the classification of the position to which he is appointed do not coincide.

…

47.05 When an employee is required by the Employer to perform the duties of a higher classification or grade level on an acting basis for a period of at least three (3) consecutive working days, he shall be paid acting pay calculated from the date on which he commenced to act as if he had been appointed to the higher classification level for the period in which he acts. When a day designated as a paid holiday occurs during the qualifying period, the holiday shall be considered as a day worked for purposes of the qualifying period.

A. Employer’s preliminary objection

43 The employer’s representative maintained that the grievors’ grievances are classification grievances, that classification is not enumerated in paragraph 209(1)(a) of the Act and that, consequently, I do not have jurisdiction to decide these grievances. The grievors’ representative maintained that these are acting pay grievances arising from clause 47.05 of the collective agreement. Consequently, I have full jurisdiction to decide them under paragraph 209(1)(a).

44 In paragraphs 59 and 60 of Bungay et al., the adjudicator enumerated four criteria as follows to allow distinguishing between a classification grievance and an acting pay grievance:

[59] In summary, some of the indicators that a grievance is a classification grievance and not an acting pay grievance (and therefore where an adjudicator has no jurisdiction) are:

• the claim for acting pay is an ongoing claim and not for a specified period;
• the grievor has sought a reclassification, either informally or through a classification grievance;
• the grievor continues to perform the duties he/she has always performed and only the classification levels in the workplace have changed; and
• the acting pay grievance is based, in part, on a comparison with similar positions in other work areas.

[60] This is not an exhaustive list and, in my view, some of the factors considered alone cannot be determinative of jurisdiction.

1. Undetermined period vs. specified period

45 In this case, the grievors’ representative pointed out that the grievances are about acting pay and that they cover a specified period of four years, from 2002 to 2006. He maintained that discussions began in 2002 and ended in May 2006, when the employer rendered its decision. Therefore, according to him, it must be concluded that it was a defined, precise and determined period and that, even though it might seem long, the grievors are not to blame.

46 In my opinion, it is actually an undefined period spanning four years that concluded with the employer’s classification decision in May 2006. I believe that the evidence demonstrated that discussions about the positions’ classifications began in 2002 and lasted until 2006. No defined and precise period was put forward by the parties. Although it is true that the dispute spanned 2002 to 2006, it is because the discussions in general lasted that long. I believe that the grievors did not demonstrate that the employer imposed a specified period during which they had to perform the duties of a higher-level position. The period in question, 2002 to 2006, refers instead to an ongoing period during which, according to the grievors, the employer continuously undervalued the duties assigned to them.

2. Reclassification request made informally or via grievance

47 The evidence demonstrated that, from the dispute’s beginning in 2002, the parties addressed the dispute as a classification rather than an acting pay issue in a rather formal manner. On that note, paragraphs 15, 16 and 17 of the joint statement of facts (Exhibit 1) are indicative of the nature of the dispute; namely, that it is a classification matter, not an acting pay matter. Paragraph 15 mentions “[translation] undervalued” duties, while paragraph 16 refers to a management-union meeting, in which “[translation] … the PIPSC raises an issue about the classification level of CS positions … The parties undertook to work on a work description of the positions …” In my opinion, paragraph 17 also shows as follows that the parties viewed the dispute as being about classification rather than acting pay:

[Translation]

… The question is why a work description for two positions identical in every respect results in a position classified CS-01 in Montreal and CS-02 in Valcartier? Management suggested meeting with the classification officer for the three garrisons to discuss the differences in the work descriptions at each garrison.

I find that paragraph 24 and the later paragraphs of the joint statement of facts (Exhibit 1) also support the argument that these are classification grievances. Those paragraphs refer to “[translation] position evaluations,” “[translation] an informal classification evaluation” and “[translation] a classification evaluation committee.”

48 Moreover, the evidence showed that the grievors formally filed individual classification grievances (see Exhibit 1, joint statement of facts, paragraph 30). Although the classification grievances were filed five months after these grievances were filed, I believe that nevertheless they confirm that the grievors considered that the situation was about the undervaluation of their positions; in other words, about classification.

3. The grievors continue to perform their duties as before

49 In this case, there is no doubt that the grievors continued to perform the same duties as before, that the duties were consistent with those outlined in their work descriptions and that the employer never asked them, during the entire period referred to earlier, to perform the duties of a higher position. At the hearing and in paragraph 21 of the joint statement of facts (Exhibit 1), the parties agreed that “[translation] [a]ll the duties performed by the grievors are set out in the work descriptions. The employer never asked them to perform duties in addition to those outlined in their work descriptions.”

50 In my opinion, the fact that the grievors’ duties did not change between 2002 and 2006 supports the argument that the dispute is about classification, not acting pay. In Gvildys et al. v. Treasury Board (Health Canada), 2002 PSSRB 86, the adjudicator found as follows that he did not have jurisdiction to decide a grievance when the facts showed that the grievors continued to perform the same duties, even though the employer decided to classify other positions differently:

…

[28] It is established case law that when grievors are found to have substantially performed the duties of a higher classification they are entitled to acting pay at the higher classification level…

[29] Nevertheless, it is also recognized that an adjudicator does not have jurisdiction as it pertains to classification when grievors are performing the duties of their positions but are grieving that the same duties are classified at a higher level in other positions, as the classification decision of the employer can only be revised by the Federal Court…

…

51 In Bungay et al., the adjudicator reached the same conclusion in paragraph 66, as follows:

[66] The evidence shows that the grievors' duties did not change at the time that PG 04s were introduced into the workplace, although after the filing of the grievances certain duties were removed from the PG-02s and given to the PG-04s. The evidence did not show that the grievors performed duties outside their position description. Unlike the situation in Chadwick v. Canada (Attorney General) (supra), the reorganization of the workplace in 1998 did not result in additional duties for the grievors. Taking into account all the evidence, it is clear that the essence of these grievances relates to the appropriate classification of the duties being performed. This leads to the conclusion that the grievances are more properly viewed as classification grievances, as in Gvildys and Others v. Treasury Board (Health Canada) (supra). Accordingly, I find that I do not have jurisdiction.

52 However, the grievors’ representative argued that the Federal Court’s ruling in Chadwick should be applied and that I should find that this is an acting pay grievance.

53 Considering the evidence, I believe that this case differs from Chadwick. In fact, in this case, it was acknowledged that the grievors never performed duties that were not set out in their work description or the duties of a position at a higher classification level in an acting capacity. I find that that is a fundamental difference between this situation and that of Chadwick, in which the judge found that Dr. Chadwick had been called on to perform certain duties at a higher level. Moreover, in Chadwick, the judge also found that the grievor never made an official or unofficial request about her classification. Yet, in this case, as mentioned, the evidence showed that discussions between the grievors, their representatives and management continued and that they focused on the classification of the positions. Therefore, the facts in this case differ from those raised in Chadwick.

54 Moreover, I am not convinced that Woodward applies in this case. It appears to me that the evidence in Woodward indicates that the grievor performed duties at a higher classification level. Additionally, the issue in that grievance was primarily the effective date of the employer’s reclassification decision, which is not relevant in this case.

55 As for Stagg, also cited by the grievors’ representative, it appears to me that, again, a fundamental difference exists between the Federal Court’s decision and this case. In Stagg, it was not disputed that the grievor received greater responsibilities, which resulted in a reclassification. However, as in Woodward, the question of the effective date of the employer’s decision remained in dispute. Again, I am not to decide that issue in this case.

4. The acting pay grievances are based on a comparison with other similar positions

56 The evidence is clear about the actions that the grievors took to compare their classification levels to those of their colleagues in Valcartier. Once again, that confirms that the nature of the grievances is “classification,” not acting pay.

57 In fact, the parties’ admissions, both at the hearing and in paragraphs 13, 14, 15, 16 and 17 of the joint statement of facts (Exhibit 1), clearly show that the grievors based their grievances on a comparison between the classification levels of their positions and those of their colleagues in Valcartier. Again, to me, those aspects support the argument that these are classification grievances.

58 Although the criteria set out in Bungay et al. are not an end in themselves, and since those criteria are not considered exhaustive, as the adjudicator concluded at paragraph 111 of Doiron, nonetheless, I find that, after reviewing the criteria applied to the facts and the evidence in this case, I have no doubt that these are classification grievances. Therefore, I do not have jurisdiction under paragraph 209(1)(a) of the Act. Paragraph 111 in Doiron reads as follows:

[111] There is, however, no requirement that all of the indicators discussed in Bungay must be present to support a conclusion that classification comprises the real subject matter of a grievance. The individual indicators suggested in Bungay are neither necessary conditions nor, taken together, do they constitute an exhaustive or definitive list. They nevertheless do provide a helpful test. In the circumstances of this case, I am satisfied that the evidence, on balance, aligns well with the depiction of a classification grievance in Bungay.

59 In his arguments, the grievors’ representative maintained that, in this case, it is a matter of fairness and that, consequently, the grievors should have been paid at the same rate as their Valcartier colleagues. Although fairness is a notion of fundamental justice that should always be present in all decisions, the fact remains that my jurisdiction is limited, as in all contracts, by the content of the collective agreement. In other words, a decision on the interpretation of a clause of a collective agreement cannot focus solely on the notion of fairness; the findings of the decision must obviously take into account the relevant clauses of the collective agreement.

60 Although I have found that I do not have jurisdiction to decide these grievances since their real subject matter is classification, I will add that, even if the grievances were about acting pay, I would have had to dismiss them because they are unfounded.

61 Clause 47.05 of the collective agreement states the following:

47.05 When an employee is required by the Employer to perform the duties of a higher classification or grade level on an acting basis for a period of at least three (3) consecutive working days, he shall be paid acting pay …

62 In my opinion, clause 47.05 of the collective agreement lists the following three conditions required for an entitlement to acting pay:

• The duties are performed at the employer’s request.
• The employee is required to perform the duties of a position with a higher classification or at a higher level.
• The employee must perform those duties for a period of at least three (3) days.

63 A review of the evidence and arguments presented at the hearing leaves no doubt that none of those conditions was fulfilled.

64 In fact, the joint statement of facts (Exhibit 1) clearly mentions as follows at paragraph 21 that the employer never asked the grievors to perform additional duties and that the grievors never performed the duties of a position with a higher classification or at a higher level for any given period:

[Translation]

21. All the duties performed by the grievors are set out in the work descriptions. The employer never asked them to perform duties in addition to those outlined in their work descriptions.

65 For all of the above reasons, the grievances are dismissed for lack of jurisdiction, and I make the following order:

V. Order

66 I order the files closed.

August 3, 2012.

PSLRB Translation

Linda Gobeil,
adjudicator