FPSLREB Decisions

I. Policy grievance and individual grievances referred to adjudication

1 On December 21, 2005, the Public Service Alliance of Canada (“the bargaining agent” or PSAC) grieved that the Parks Canada Agency (“the employer”) violated the collective agreement between the employer and the bargaining agent for “all employees of the employer” (expiry date: August 4, 2003) (“the collective agreement”). Specifically, the PSAC grieved that the employer refused to pay former employees retroactive pay for duties performed from April 1, 1999 to the present day in positions that had been upwardly reclassified following the employer’s national review of classifications (“the national review”). Those employees left the employer before receiving the results of the national review for their positions. Suzanne Barnes and 42 other employees listed in the appendix to this decision (“the grievors”) also filed individual grievances on the same issue.

2 In preparation for this hearing, the parties jointly provided the chronology of events that occurred after the grievances were filed and a joint statement on some of the facts.

3 The policy grievance was heard on February 20, 2006, and the employer denied it on March 29, 2006. The PSAC referred it to adjudication on April 24, 2006. In its referral to adjudication, the PSAC wrote that the collective agreement expiring on August 4, 2007 also applied to the policy grievance. In September 2009, the parties agreed to deal with the policy grievance along with the 43 individual grievances by way of mediation. Seven days of mediation were held in 2009 and 2010. The parties reached an agreement on November 22, 2010 resolving the policy grievance and all 43 individual grievances. The settlement agreement (“the settlement”) was signed on November 25, 2010. According to the settlement, the PSAC was to withdraw all grievances upon the completion of the implementation of its terms.

4 In March and May 2011, the employer provided the PSAC with a list of employees which it deemed were entitled to a lump-sum payment according to the provisions of the settlement. The employer issued all the cheques to the former employees who it had identified on the list. However, the policy grievance and the 43 individual grievances were not withdrawn, as the PSAC disagreed with the employer’s application of the settlement.

5 On October 3, 2011, the PSAC wrote to the employer, identifying an issue with the interpretation of Part B of the settlement. The essence of that letter is contained in the following abstracts:

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The issue is the interpretation of Part B (page 2) of the MOU. Part 8 of the agreement discusses a lump sum payment to be paid to all employees whose employment status was indeterminate at the time they were struck of strength (SOS) whose positions were reclassified upwards as a result of the Parks Canada National Review.

It is the PSAC's position that all reclassified positions that an employee may have worked in between April 1, 1999 to the date they were SOS shall be used to calculate years of service for the purposes of Part B of the MOU. Our understanding is that the agreement was intended to provide compensation for employees who occupied positions that had been reclassified upwards, if they were in the reclassified position when they were struck off strength. From our perspective this is the trigger for qualifying for the payment. The amount of payment is then to be calculated based on the years of service in all positions that had been reclassified upwards and the salary range of the positions. We believe the language in the MOU supports this interpretation.

It seems that Parks Canada is only using the last reclassified position an employee occupied before they were struck of strength to calculate years of service for the purposes of Part B of the MOU.

Can you please clarify Parks Canada's interpretation of this part of the MOU and how the lump sum payments are presently calculated under the MOU.

[Sic throughout]

6 On November 7, 2011, the employer responded that it was awaiting feedback from its counsel. It provided no further response. On April 26, 2012, the PSAC informed the Public Service Labour Relations Board that the parties were not able to resolve a question of interpretation related to the implementation of the settlement, and it requested a meeting to discuss it. The employer agreed that a meeting should take place. It was held on May 28, 2012, at which all agreed that an adjudication hearing was necessary to decide the dispute related to the implementation of the settlement.

7 To avoid any misunderstanding, I advised the parties that this hearing was to deal with the terms of a settlement as it applies, not only to the policy grievance but also to the 43 individual grievances. I clarified before the parties that that meant that my decision would apply to the policy grievance and to the 43 individual grievances. Both parties expressly agreed with that.

8 Luc Presseau briefly testified at the hearing. Mr. Presseau has been Director of Workplace Relations for the employer for the past two and one-half years. In his position, he is responsible for labour relations, classification and compensation. Mr. Presseau explained that the employer put in place new generic job descriptions, retroactive to 1999. As a result, some employees were reclassified upward; some downward, and some remained the same. Approximately 1000 unsatisfied employees filed 2700 grievances against the new job descriptions, their classifications and the pay impact.

9 The policy grievance and the 43 individual grievances all deal with retroactive payments to former employees who were reclassified upward but who left the employer before receiving the classification decision applicable to them. Some of the documents exchanged between the parties prior to the hearing only referred to the policy grievance.

10 Normally, the terms of a mediated settlement are confidential. However, in this case, the parties agreed to divulge part of the settlement, so that I can determine whether it has been correctly and fully implemented. The following provisions of the settlement are of interest in this decision:

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A) The Parties:

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2. Agree that the terms of this settlement provides a final, complete, unlimited and unqualified discharge from all debts, whatever their nature, qualification or basis, which are owed or may be owed to the grievors (PSLRB file number: 569-33-18, 566-33-675 to 707, 733 & 734, 775 to 777, 1474 & 1475, 2326, 2610 & 2611) by Her Majesty in Right of Canada, Her agencies, employees, servants, agents or representatives or the employees, servants or agents of those, whether on a personal or non‑personal basis, and, most importantly, by the Employer, as a result of the circumstances, facts, actions, decisions, words, written documents or omissions surrounding, preceding or following the subject of this memorandum.

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4. Recognize that the Employer applies the Treasury Board Secretariat policy governing retroactivity for former employees on reclassification. In essence this policy is clear that no retroactive payments are to be made for reclassifications to employees who have left the Employer prior to the reclassification of the position. The parties also agree that, on a go forward basis, only grievors will be entitled to retroactive application of grievance settlements or adjudication awards unless explicitly waived by the Employer.

B) The Employer:

1. Will settle the grievances, policy and individual … by providing a lump sum settlement to all employees whose employment status was indeterminate at the time they were struck off strength whose positions were reclassified upwards as a result of the Parks Canada National Review. The following provisions will apply;
   
   
   1. Only to employees whose classification has increased will be eligible;
   2. Employees will receive a lump sum based on their years of service in a position reclassified from April 1, 1999 to the date they were struck off strength;
   3. The lump sum payment outlined in 1, above, shall be based on years of service from April 1, 1999 to the date that the employee was struck off strength. The lump sum payment shall be paid as a fixed amount calculated on the basis of the salary the employee was earning when they were struck off strength and years of service in a reclassified position, pro-rated for partial years of service.

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C) The Alliance:

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6. Agree that the payments provided for at section B) of this agreement shall be the only amounts that grievors will receive from the Employer. This is being offered as a settlement to these matters and not as a payment of retroactive salary.

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[Sic throughout]

11 The settlement also includes a grid to calculate the lump-sum payment. According to that grid, employees with a salary of $30 000 to $40 000 were to receive a lump sum of $1400 per year. Those with a salary of $40 001 to $50 000 were to receive $1800; and so on upwards.

12 In response to a question from me, both parties agreed that the only indeterminate employees who were paid and who should have been paid according to the settlement were those occupying, following the results of the National Review, a reclassified position when they left the employer or when they were struck off strength. Employees who had occupied a reclassified position in the past but did no longer when struck off strength did not receive and should not have received any lump-sum payments, according to the settlement. The dispute is only on whether years of service should include service in more than one reclassified position (the PSAC position) or should be limited to the time in the reclassified position occupied when the employee left the employer (the employer’s position).

II. Summary of the arguments

A. For the bargaining agent and the grievors

13 The settlement is not ambiguous, and it should be understood and applied as it reads. Paragraph B1 of the settlement is very clear. It provides lump-sum payments to former employees who were indeterminate, whose positions were reclassified upwards and who occupied such a position when they left. If those conditions were met, the payment should have been made for every year of service for which those employees occupied reclassified positions. It meant that an employee could have been paid for more than one reclassified position. By refusing to pay for more than one or multiple reclassified positions, the employer did not respect the terms of the settlement. Subparagraphs b and c of paragraph B1 do not include any limitation as to the number of positions for which the payment could have been made. If there are limitations, they would have been written in the settlement.

14 Not only should the employer have paid eligible employees for multiple reclassified positions, it also should have based the lump-sum payment for those multiple positions on the salary range of the employee when he or she was struck off strength. Subparagraph c of paragraph B1 is very clear on that point.

15 The PSAC referred me to sections 4:2100 and 4:2110 of Brown and Beatty, Canadian Labour Arbitration, fourth edition. It also referred me to Amos v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 74; Amos v. Canada (Attorney General), 2011 FCA 38; Exeter v. Deputy Head (Statistics Canada), 2012 PSLRB 25; and Zeswick v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 8.

B. For the employer

16 The employer agreed that the settlement was not ambiguous. However, it disagreed as to how to interpret it, and it believed that it fully complied with the settlement. The employer argued that, since the PSAC alleged that it did not comply with the settlement, it had the burden of proving that allegation.

17 Section 6 of the settlement states that the lump-sum payments were to be the only amounts that the employees would receive. They were not to be retroactive salary payments but were to settle the matter between the parties. If the parties intended to pay the employees retroactively, they would have written it in the settlement and would have recalculated every upgraded position back to 1999. Instead, a lump-sum payment was made to affected employees, based on their positions when they were struck off strength.

18 The PSAC argued in its October 3, 2011 letter that it understood that an employee would receive the lump sum “… if they were in the reclassified position when they were struck off strength.” The employer agreed with that interpretation but argued that the settlement refers to “a position” and not to “any position.” The employer argued that that the use of “a position,” means that it had to be the position that the employee occupied when struck off strength.

19 The employer also referred to the same Brown and Beatty sections presented by the PSAC and to Amos.

III. Reasons

20 The policy grievance and the 43 individual grievances challenged the employer’s decision to not pay retroactively former employees who had left the employer when their former positions were reclassified retroactively. These grievances were referred to adjudication. On November 22, 2010, the parties resolved them. On November 25, 2010, they signed the settlement. According to that settlement, the grievances were to be withdrawn upon the completion of the implementation of the settlement. However, they never were withdrawn, since the PSAC and the grievors alleged that the settlement was not properly implemented. The employer disagreed. It argued that the terms of the settlement have been fully implemented.

21 According to the Federal Court of Appeal in Amos, the Public Service Labour Relations Act, gives me jurisdiction to decide whether the settlement was final and binding on the parties, whether either party complied with it, and, if not, the appropriate order under the circumstances.

22 Both parties signed the settlement and then agreed that it was binding and final. The settlement resolved all claims that the parties could have against each other as a result of the grievances that were filed and my role is not to decide the grievances on their merits. Instead, my role is to examine whether the parties complied with the settlement. Specifically, I have to determine whether the employer complied with the settlement when it limited the calculation of years of service for the payment of the lump sum to the time worked in the reclassified position occupied when an employee was struck of strength. According to the PSAC, the years of service should also include time worked in other reclassified positions previously occupied.

23 According to subparagraph B1b of the settlement, the lump sum was to be based on the employee’s years of service “in a position” reclassified from April 1999 to the date on which the employee left the employer. For the PSAC, “in a position” means in “all positions” worked. For the employer, it means “in one position,” namely, the position that the employee occupied when leaving the employer. Taken out of context, those two different interpretations could be argued. However, the expression “in a position” must be interpreted in the context of the whole settlement and should make some sense in that context. At section 4:2100, Brown and Beatty states the following:

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When faced with a choice between two linguistically permissible interpretations, however, arbitrators have been guided by the purpose of the particular provision, the reasonableness of each possible interpretation, administrative feasibility, and whether one of the possible interpretations would give rise to anomalies…

24 In the context of the settlement and its application, the employer’s interpretation of the words “in a position” makes more sense to me than the PSAC’s interpretation, which is not completely coherent with the rest of the settlement and gives rise to anomalies.

25 The parties agreed that, to be paid a lump sum, employees had to occupy a reclassified position when they were struck off strength; otherwise, they were paid nothing. That means that an employee who was in a reclassified position between 1999 and 2005 but who moved in 2006 to another position that was not reclassified and who left the employer a few months later would have received no lump-sum payment according to the settlement. That example well illustrates that the overall logic of the settlement was not to pay employees retroactivity for the time worked in reclassified positions but rather to pay them a lump sum if they occupied a reclassified position when they left the employer. That is the compromise that the parties negotiated to settle the grievances; that is where they drew the line.

26 The PSAC’s position would mean that an employee who occupied a reclassified position for a month at the time of being struck off strength but who, for a period of one year, some five years earlier, had occupied another reclassified position, would have been paid a lump sum for that month and for that year. That would make sense if the parties agreed to retroactively pay employees for the time they worked in reclassified positions, but that is clearly not what they agreed to. In fact, the parties wrote that the lump sum was “… offered as a settlement to these matters and not as a payment of retroactive salary.”

27 The parties recognized in clauses A4 and C6 of the settlement that the employer’s policy was that no retroactive payments were to be made for the reclassification of employees who had left the employer before the positions were reclassified. The employer compromised, and so did the PSAC. The parties together agreed that a lump sum would be paid to employees occupying reclassified positions when they were struck off strength. The other former employees got nothing. That was the settlement negotiated by the parties.

28 Considering the settlement as a whole, it cannot be concluded that the expression “in a position” could mean any reclassified position that an affected employee occupied between 1999 and being struck off strength. Instead, I find that that expression refers only to the position that the employee occupied before being stuck off strength.

29 I conclude that the employer has complied with the settlement signed by the parties on November 25, 2010 as a final settlement to the policy grievance and the 43 individual grievances.

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

IV. Order

31 The settlement has been properly interpreted and applied by the employer.

32 I order that the policy grievance file and the 43 individual grievances files be closed.

September 25, 2012.

Renaud Paquet,
adjudicator

Appendix