FPSLREB Decisions

I. Individual grievance referred to adjudication

1 John Ells (“the grievor”) is a geomatics engineer, classified EN-SUR-03. He is employed in the Ocean Sciences-Canadian Hydrographic Service (“the Service”) in the Hydrography Branch, Department of Fisheries and Oceans. He is covered by the collective agreement negotiated between the Treasury Board of Canada (“the employer”) and the Professional Institute of the Public Service of Canada (“the union”) for the Architecture, Engineering and Land Survey Group; expiry date, September 30, 2011 (“the collective agreement”).

2 On April 20, 2011, the grievor filed a grievance contesting the employer’s refusal to pay the professional fees relating to his status as a professional engineer. As a corrective measure, he asked that the employer reimburse the fees for his engineering licence (P. Eng.) and the one-time fees for his engineer-in-training licence, which totalled $609.85. The grievance was heard only at the second and final levels of the grievance process. It was denied at the second level on June 22, 2011 and at the final level on December 21, 2011 and was referred to adjudication on January 27, 2012.

II. Summary of the evidence

3 The grievor testified on his own behalf and introduced 11 documents into evidence. Kian Fadaie, National Director of Hydrography, Hydrography Branch, testified on behalf of the employer and introduced four documents into evidence.

4 Ms. Fadaie testified that the Service is the only organization in Canada that provides charts of Canadian waters. She explained that it is a complicated field because it combines geography and hydrography. Because Canadian universities do not offer hydrography as a field of study, the Service provides its own training program. The Service provides expert opinions to other departments as it is an expert in the field.

5 Ms. Fadaie explained that the grievor’s position in the Service was unique, in that he was the only person who performed that function until he left on a three-year assignment in another department. After he left, she hired two geodetic engineers. She testified that the work is highly technical. The grievor performed geodetic analyses to determine the precise positions of objects and boundaries on bodies of water. A geodetic engineer or surveyor is like a land surveyor who works in water. Geodetic engineers can be called upon to testify in court in cases concerning infractions on Canadian waters because of possible requirements to determine boundaries. She stated that the grievor is very bright and that he was a star in the office.

6 The grievor testified that he started work as a geomatics engineer for the employer in 2002 and that he worked there until May 2011, when he accepted a three-year assignment with the Law of the Sea department. He expects to return to his substantive position as a geomatics engineer in 2014.

7 The grievor testified that in his substantive position, although the organizational structure above him changed over time, his role as a geomatics engineer did not change. He noted that he is the only geomatics engineer in the Hydrography Branch, as shown on the organization chart (Exhibit G-4). The other employees at his classification level are technical advisors. He explained that a geomatics engineer is the same thing as a geodetics survey engineer.

8 The grievor obtained his P. Eng. designation in 2010 (Exhibit G-5). As part of that process, he was required to submit a work report to the Association of Professional Engineers of Ontario (PEO), which is the licencing body for professional engineers in the province (Exhibit G-6). The work described in his report was assessed to determine if it qualified as engineering work. His apprenticeship as an engineer spanned a number of years and started even before he began working for the employer. He stated that he was not permitted to call himself an engineer until he was licenced and that he was told that performing engineering work without a P. Eng. designation could expose him to the possibility of a penalty imposed by the PEO (Exhibit G-9). If he did not pay his licencing fees, his licence would be revoked. For that reason, he stated that he paid his fees.

9 The grievor explained that his work evolved over time. When his former supervisor, who was an engineer, retired in 2004, the grievor took on many of his files, and since then, his work has become increasingly complex. Since 2008, he has taken on the roles of preparing expert reports in geodetic engineering and of acting as an expert witness, which his former supervisor had done. He explained that he performed the role of expert witness under the direction of his current supervisor. He stated that the employer is aware that he is considered an expert and that it supports him in this role because it gives the Hydrography Branch credibility and visibility. He stated that he has been called to testify in court about seven or eight times and that he has produced about a dozen expert reports. Others in his section are not called upon to perform this kind of work. He also stated that he testified in court only on the employer’s behalf. He noted that the requirement to be a subject matter expert was set out in his job description (Exhibit G-3).

10 The grievor acknowledged in cross-examination that he had testified in court as an expert in 2008, 2009 and 2010, before he was licenced as an engineer. He stated that even though his testimony was challenged because he was not licenced as a professional engineer, his evidence was accepted as that of an expert. In R. v. LaPorte, 2011 NSPC 36 (Exhibit E-4), the grievor was qualified as an expert, even though he did not yet have his licence as a professional engineer.

11 The grievor testified that, on many occasions, he spoke to his supervisor, Ms. Fadaie, about obtaining his P. Eng. designation. Attaining his P. Eng. designation was included in the objectives set out in his performance and learning review for the 2009 to 2010 review period (Exhibit G-7) as well as on his individual learning plan for that year (Exhibit G‑8), both of which were signed his supervisor. The grievor testified that he believed that failing to achieve the objectives established would negatively impact the appraisal and that, therefore, he was expected to obtain his P. Eng. licence or risk a negative appraisal.

12 The grievor testified that Ms. Fadaie encouraged him to obtain his P. Eng. designation. He stated that he believed that he had her full support. He said that he believed that having his P. Eng. designation had become a job requirement, which was why it was placed as a goal on his learning plan and why his supervisor signed the learning plan.

13 In cross-examination, the grievor acknowledged that neither the competition poster (Exhibit E-1) he saw when he applied for his position nor the letter of offer made to him (Exhibit E-2) when he was appointed required that he have a P. Eng. designation. He agreed that he was in the same substantive position from 2002 until 2011, when he went on assignment. He also agreed that he performed the same duties between 2002 and 2011 as someone classified EN-SUR-03. He never performed supervisory duties. He acknowledged that the classification standard for the EN-SUR sub-group (Exhibit E-3) requires occupational designations only for supervisory positions. He also agreed that there was no task in his job description or required of him by the employer that he could not perform without his P. Eng. designation. He confirmed that he would not lose his job if he lost his licence. However, he reiterated that he would be exposing himself to the possibility of a sanction from the PEO if he practiced engineering without a licence.

14 The grievor maintained that his position had evolved over the years and that, through his discussions with his supervisor, he understood that he should get his P. Eng. He acknowledged that it was not an ultimatum, but he thought that it was a requirement. Nevertheless, he also agreed that he had performed the same duties without a P. Eng. designation that he later performed with it. However, he stated that over the years he was in the job, other departments increasingly relied on his work, and the fact that he was licenced raised their confidence in the information he provided.

15 The grievor testified that he asked to be reimbursed for his P. Eng. and related fees on March 20, 2011 (Exhibit G-10). Ms. Fadaie told him that she would have to seek instructions. Ultimately, the request was denied on March 25, 2011 (Exhibit G-10).

16 Ms. Fadaie testified that the grievor’s position required an engineering degree or other university degree in the sciences, in the fields of mathematics or physics, or in any other discipline that dealt with the science of measurement. However, no occupational or professional designation was required. The classification standard for the EN-SUR sub-group identified the educational requirement as graduation from university with a specialization in land survey theory or other related fields, such as geomatics, geodetic sciences or remote sensing. Only supervisory positions require occupational certification, and in that case, certification as a Canada lands surveyor (CLS) is specifically identified. The grievor was not a supervisor and as far as Ms. Fadaie knew had never asked to be a supervisor.

17 Ms. Fadaie testified that it is not necessary to have a professional licence to perform the duties of the grievor’s position or to be accepted as an expert witness. The grievor testified as an expert in 2009 and 2010, before he obtained his P. Eng. licence. Furthermore, the technical analysts who are also geodetic engineers also are often called to testify. The two people that she hired after the grievor went on assignment are doing the same work that he did, including testifying in court, and neither has a P. Eng. designation, although both are engineers.

18 Ms. Fadaie stated that the grievor prepared the objectives set out in his performance appraisal (Exhibit G-7) and learning plan (Exhibit G-8) and that she signed them. She stated that she encouraged him to obtain his P. Eng. designation in the same way that she encouraged him to take French language training. The objectives were not mandatory and were not rated. She stated that the grievor was clearly told that his P. Eng. was not required but that it was something that could be good for his career. She stated that had he failed to obtain it, no consequences would have occurred at work. He would not have lost his job and would have continued to perform the same duties that he had been performing.

III. Summary of the arguments

A. For the grievor

19 The grievor argued that his job evolved over time. It is reasonable to expect that as an employee grows and acquires experience and knowledge, his or her position grows, and the employer’s expectations and requirements change. Although he might not have needed a P. Eng. designation when he was first hired, the need for that designation developed over time until it became a job requirement.

20 The requirement for the grievor to obtain his P. Eng. crystallized when the employer established the need for it through the objectives set in his performance appraisal. When the objective was established, the requirement was established. There was no other reason to include such an objective in the performance appraisal if it was not part of the employer’s expectations. If it was simply a personal goal, it should not have been included.

21 The evidence established that if the grievor practiced engineering without a licence, he exposed himself to penalties. Despite that fact, as a geomatics engineer, the grievor performed duties that fell within the parameters of the engineering field. He was putting his career at risk if he did not have a P. Eng., yet the employer refuses to acknowledge that fact.

22 The grievor cited Harper v. Canadian Food Inspection Agency, 2002 PSSRB 87. He stated that, in that case, the grievor could perform her work only according to the standards of her profession, which required that she be licenced. Similarly, in this case, the grievor was directed to acquire his licence through a performance appraisal objective.

23 Although the grievor may not require a P. Eng. to perform the duties of his position at all times, it may be necessary at some times. The employer underestimated the value of the P. Eng. All that the grievor asked for was that his professional fees be reimbursed, since he was encouraged and supported in his performance objectives and since the employer’s reputation was enhanced by the added credibility that the P. Eng. brought. For all those reasons, the grievor asked that the grievance be allowed and that the employer reimburse his professional fees.

B. For the employer

24 The employer stated that a Public Service Labour Relations Board adjudicator is limited by the language of section 229 of the Public Service Labour Relations Act and cannot alter or amend the provisions of the collective agreement. The issue in this grievance is whether the employer contravened article 21 of the collective agreement, and the grievor bears the burden of proof of demonstrating that it has been contravened. The determination of that issue can be based only on the language of the collective agreement. The employer cited Rosendaal et al. v. Treasury Board (Revenue Canada - Taxation), PSSRB File Nos. 166-2-22291, 23143 and 23144 (19930506); Muller v. Canada Customs and Revenue Agency, 2002 PSSRB 19; Berthiaume et al. v. Treasury Board (Department of Agriculture and Agri-Food), 2007 PSLRB 5; and Coupal et al. v. Canadian Food Inspection Agency, 2007 PSLRB 80.

25 In this case, the collective agreement provides that the employer has an obligation to reimburse an employee’s professional fees only when membership or qualification in a professional organization is a requirement of the employee’s position. That obligation arises only when membership in a professional organization is a qualification set out in the classification standard for the applicable group. The employer has the exclusive right to determine the qualifications required for positions in the public service. The employer cited Katchin v. Canadian Food Inspection Agency, 2004 PSSRB 26, Rosendaal et al. and Muller.

26 The evidence established that the employer did not require the grievor to have his P. Eng. designation, and no task in his job description required it. He was the only geodetic engineer who had the licence, but he performed the same work as others who did not have it. The grievor acknowledged that he performed the same duties over the years that he had been in the job and that not much had changed, yet he obtained his P. Eng. designation eight years after being hired into the position. He also acknowledged that he was never told that acquiring the P. Eng. designation was necessary or that he would lose his job if he did not have it.

27 The employer argued that including the objective of obtaining his P. Eng. designation in the grievor’s performance appraisal and learning plan did not mean that it was a requirement. The performance objectives are in the nature of a wish list rather than a job requirement. Ms. Fadaie included the objective in the performance appraisal to support and encourage the grievor’s career aspirations. She testified that there was no intention to create a job requirement and that the grievor would not have lost his job had he not acquired his P. Eng. designation.

28 Although the grievor was required to testify in court as an expert in geodetic analysis, his expertise arose not from the fact that he had a P. Eng. designation but from his experience and his knowledge. While his professional certification might have lent credibility to his testimony, it was not required. In support of its contention that although professional certification might have been beneficial, it was not a job requirement, the employer cited Rosendaal et al. and Muller.

29 The employer contended that the grievor did not establish that a professional designation was a requirement of his position. Although it might be beneficial, the language of the collective agreement provides that it must be a requirement of the position or a requirement of the classification standard. The evidence established that it was neither. Although the grievor was concerned about his liability if he practiced engineering without a licence, his fears were based solely on speculation.

30 The employer stated that the Harper decision underlined the necessity of establishing that a professional designation is required to perform particular duties in the job description or required by legislation. That decision established that to be considered a requirement of a position, it is necessary to find that only a person with the required designation could do the job.

31 The employer contended that the grievor failed to establish that having a P. Eng. designation was a requirement of his job, and therefore, his grievance should be dismissed.

C. Grievor’s rebuttal

32 The grievor contended that it was misleading to put a requirement that he attain a P. Eng. designation in his performance objectives if it was not a job requirement.

IV. Reasons

33 The grievor grieved the employer’s refusal to reimburse him for the cost of his professional fees. The parties understood that the grievance concerned an alleged violation of article 21 of the collective agreement, which provides as follows:

Article 21

Registration Fees

21.01 The Employer shall reimburse an employee for payment of membership or registration fees to an organization or governing body where membership is a requirement for the continuation of the performance of the duties of the employee's position.

**

21.02 When the payment of such fees is not a requirement for the continuation of the performance of the duties of an employee's position, but eligibility for membership in an organization or governing body is a qualification specified in the Occupational Group Qualification Standards for the NR Group, the Employer shall reimburse the employee, upon receipt of proof of payment, for the employee's annual membership fees paid to one organization or governing body. Reimbursement covered by this article does not include arrears of previous years' dues.

34 I am bound by the language of the collective agreement, which provides that the grievor must establish that membership in the PEO is a “… requirement for the continuation of the performance of the duties of the employee’s position” or that eligibility for membership in the PEO is a qualification specified in the occupational group standard for the grievor’s classification. In my view, the grievor failed to discharge that burden.

35 The language of the collective agreement is clear. Membership in a professional organization cannot simply be something that enhances an employee’s ability to perform his or her job but must be necessary for the employee to perform the duties of the job to the extent that, without it, the employee cannot continue in the position. The case law supports that interpretation. Muller and Rosendaal et al. are particularly apt in the circumstances of this grievance because in both those cases, as in this one, the importance of a professional designation to certification as an expert witness was advanced in support of the claim to have the professional fees reimbursed.

36 The claims did not succeed in either Muller or Rosendaal et al. on the grounds that although the professional designation might have added weight and credibility to the grievors’ testimony as expert witnesses, it did not follow that membership was a requirement of their positions. For example, in Muller the adjudicator noted that there was evidence that at least one of the grievors performed the duties of his position for some time without a professional designation, without jeopardizing his job. There is similar evidence in this grievance.

37 The grievor was hired as a geomatics engineer in 2002. Neither the competition poster for his position nor the letter of offer made membership in the PEO a requirement of the position. In 2002, the grievor did not, in fact, have his P. Eng. designation. He did not obtain it until 2010. For eight of the nine years that he was in the job, the grievor performed the duties of his position without being a member of the PEO. No evidence was presented to suggest that the employer at any time told the grievor to obtain his P. Eng. designation or risk losing his job.

38 The grievor testified that his job evolved over the years. However, he was in the same substantive position from 2002 until 2011, when he accepted a three-year assignment in another position. He acknowledged that the fundamental duties of his job as a geomatics engineer did not change between 2002 and 2011, although he suggested that his role became more complex when he took on responsibility for preparing expert reports and testifying as an expert witness following the retirement of his former supervisor in 2004. Nevertheless, he testified in court as an expert witness in 2008, 2009 and 2010 without the benefit of membership in the PEO.

39 The grievor argued that the fact that the employer included the objective of obtaining his P. Eng. designation in his performance appraisal and learning plan of 2009 to 2010 made it a requirement of the position. However, even if I accept that by including that goal in his performance appraisal, the employer intended to make it a requirement of the position, it does not follow that the failure to achieve it would affect the grievor’s ability to continue in the position.

40 In his testimony, the grievor acknowledged that he believed that the consequence of failing to achieve that performance goal would have been only a negative appraisal. He was frank in his admission that his job would not have been in jeopardy. I feel that it is important to add that I do not believe that Ms. Fadaie intended to make acquiring a P. Eng. designation a position requirement, any more than she intended to make the acquisition of a CLS certificate or the improvement of his French language skills job requirements. All fell into the category of career development rather than requirements for the continuation of the performance of the duties of the position. I believed her when she said that she was simply trying to support the grievor’s career aspirations.

41 There is simply no basis on which I can find that membership in the PEO was required for the continued performance of the grievor’s duties. The evidence was clear that for eight of the nine years that the grievor was in the position of Geomatics Engineer, he was not a member of the PEO and that he performed all the duties of his position. He presented no evidence of any negative consequence or ultimatum that he acquire the membership or put his position in jeopardy. In fact, his supervisor described him as being a “star” and was supportive of him.

42 The grievor argued that he would put his career at risk if he practised engineering without a licence. In support of that argument, he presented a letter (Exhibit G-9) from the PEO to a union negotiator. I note that the letter is very general and that it does not address the specifics of the work performed by the grievor. Neither the author nor the recipient of the letter testified to explain the circumstances that it was intended to address. The grievor presented no other evidence in support of his suggestion that he jeopardized his career if he performed the duties of his position without a licence. Given those facts, I am unable to conclude that, in fact, the grievor was practicing engineering without a licence or putting his career at risk and, therefore, do not consider it necessary to determine whether the licencing requirements of an outside agency would be sufficient to establish a job requirement.

43 As much as I respect the drive and determination that prompted the grievor to obtain his P. Eng. designation, I cannot find that membership in the PEO was required for the continued performance of the duties of his position. Nor can I find that the occupational group standard for the grievor’s classification required him to be qualified as a professional engineer. For those reasons, I cannot find that the employer violated article 21 of the collective agreement.

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

V. Order

45 The grievance is dismissed.

September 26, 2013.

Kate Rogers,
adjudicator