FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Bernie Jones (“the grievor”) is a correctional officer, classified CX-02. He is employed at Millhaven Institution (“the Institution”) of the Correctional Service of Canada (CSC or “the employer”). During the relevant period, he was covered by the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the union”); expiry date May 31, 2010 (“the collective agreement”). On November 2, 2009, he grieved the employer’s refusal to grant him acting pay at the CX-03 level when he acted as an instructor for the self-contained breathing apparatus (SCBA) refresher training held annually at the Institution. As corrective action, he requested that he be paid retroactively at the CX-03 level for all the days that he acted as an SCBA instructor.

2 Clause 49.07 of the collective agreement provides as follows:

49.07 When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least eight (8) hours of work, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts.

3 Clause 43.05 of the collective agreement, which is also relevant to the issues in this case, provides as follows:

43.05 Instructor allowance

When an employee acts as an instructor, he shall receive an allowance equal to two dollars fifty cents ($2.50) per hour, for each hour or part of an hour.

4 The grievance was denied at the first and second levels of the grievance process and was referred to adjudication on February 17, 2010, within the time limits for a referral to adjudication but before the employer issued a final-level response. The employer issued a final-level response on December 13, 2010.

5 This grievance was one of the 42 grievances included in Timson et al. v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 8. The questions raised in that decision were whether the employer was attempting to re-litigate an issue already decided by the Public Service Labour Relations Board (PSLRB) in Lavigne et al. v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 117, and whether there were any factual differences between Timson and Lavigne that would lead to a different conclusion. The adjudicator concluded that Lavigne applied and found that there were no significant differences between the two cases. Therefore, following a process of written submissions, she allowed the grievances on the grounds that the matter had already been decided and that, therefore, the legal principle of res judicata applied.

6 However, on judicial review, the Federal Court determined, in Attorney General of Canada v. Timson et al, 2012 FC 719, that the adjudicator breached the requirement of procedural fairness by not allowing the employer to present evidence and argument on the merits of the grievances. The Court allowed the application for judicial review and remitted the 42 grievances back to the PSLRB for redetermination by a different adjudicator. Rather than deal with all 42 grievances sent back to the PSLRB for re-hearing as a group, the parties elected to proceed only with this grievance as a test case for the others held in abeyance.

II. Summary of the evidence

7 The union called the grievor to testify and introduced 11 documents into evidence. The employer called three witnesses to testify: Scott Thompson, Deputy Warden, the Institution; Christine Anderson, Manager of Program Delivery, Regional Staff College for Ontario (“the Staff College”); and Anik Dépres, Director of Organizational Design and Job Classification. The employer introduced four documents into evidence. It should be noted that the staff college training officer (CX-03) position was referred to by the grievor and witnesses most frequently as “Staff College instructor” and that the correctional officers (CX-02) who provided refresher training were referred to as “site instructors.” I have used both terms in this decision. There is also a staff training coordinator at the Institution, whose position relates more to the planning and coordination of training than to instruction.

8 The grievor has been a CX-02 at the Institution since 2002. Before becoming a CX-02, he was a CX-01 at the Kingston Penitentiary for three years. He testified that the duties of a CX-01 and a CX-02 are similar but that a CX-01 does not have a caseload and is not responsible for inmates. All CX-02’s have responsibility for summarizing inmate activity for 30 days and for maintaining case records. CX-02s assist inmates in filling out applications for family visits and supervise inmates in their jobs. The correctional officers who work in the living units have different roles but work together as a group. However, the main duties of a CX-02 are the same as those of a CX-01. They perform hourly patrols, ensure the safety of inmates by walking the ranges and perform dynamic security. As a general rule, CX-02s do not train or give direction to their peers at the institutional level.

9 Before becoming a correctional officer, the grievor attended the Correctional Training Program (CTP), which is a mandatory, 13-week training program held at the Staff College. The CTP is part of the National Training Standards (NTS) developed by the CSC to provide mandatory and developmental training courses for its staff (Exhibit G-3). The CTP is the foundational training for all correctional officers at any CSC site in Canada. It provides training in security, firearms and the SCBA, and introduces all correctional officers to the Commissioner’s directives and prepares them for the job. The CTP is taught by a combination of civilians and CX-03s from the Staff College, as well as by parole officers and program officers.

10 The grievor explained that the SCBA training is taught as part of the CTP and is then taught on-site at the CSC’s institutions as annual refresher training for all employees required to use an SCBA. The grievor stated that the content of the initial training given at the Staff College and the refresher training given at the institutional level was the same. He stated that he delivered the same program at the Institution that he received at the Staff College.

11 On cross-examination, the grievor acknowledged that the initial SCBA training at the Staff College is two days long but that the refresher training is only one day long. He maintained that the two courses were identical and stated that it would be necessary to ask a CX-03 Staff College instructor to explain the difference in length of the two courses. He noted that all SCBA instructors and fire chiefs have access to the “X–drive” on the employer’s network and can access all the literature related to the SCBA training through it. That access allows the on-site refresher training to be identical to the training at the Staff College.

12 The grievor became an SCBA instructor in 2002. The employer identified a vacancy, and he contacted the Institution’s staff training coordinator to indicate his interest. He believed that he was chosen to be a site instructor because of his background as a volunteer firefighter. Once chosen to be an instructor, he received special training. To become an SCBA instructor, it was necessary to first be certified as a “fit-tester.” At the time that he first trained to be an instructor, the “fit-testing” training was provided off-site by the Mine Safety Association. The second part of the instructor training, which was one day long, was provided by CX-03 instructors at the Staff College. However, the employer currently uses a “train the trainer” program to teach new instructors.

13 The grievor stated that he must take refresher training every three years and be recertified every time the equipment changes. The certification is done either at the Staff College or on-site by a CX-03 from the Staff College. He believed that there was no difference in the knowledge required for Staff College instructors and site instructors when it came to SCBA training.

14 Both the grievor and Mr. Thompson explained that the SCBA training at the Institution is scheduled in a six-week block each autumn. Five SCBA site instructors train the 220 correctional officers at the Institution as well as other employees who may be required to use the SCBA. In 2009, when the grievance arose, about 30 employees who were not part of the CX group also received refresher training. The training is set to run over a 40-hour week, with 6 students per session. The sessions cover both the day and the evening shifts. The instructors work in pairs and are removed from the regular roster so that they perform only training duties for the six weeks each year that are set aside for the SCBA refresher training. The training is done in a facility about a kilometre away from the institution.

15 CSC policy requires all employees to be “fit-tested” for the SCBA each year (Exhibits G-6 and G-7). The purpose of the fit-testing is to ensure that the equipment fits employees properly. The fit-testing is done at the same time as employees receive the refresher training. Participants are required to fill out a health evaluation form before being fit-tested to ensure that no health issues will interfere with the use of the equipment. The grievor stated that one instructor does the fit-testing while the other covers the training materials with the participants. Performing fit-testing on the participants takes about three hours. The rest of the time is divided into several parts, which include reviewing the training materials and the donning and doffing process with the participants, performing a smokehouse simulation, and writing a test. The training materials consist of a PowerPoint presentation (Exhibit G-10) that is provided to the site instructors by the Staff College as part of the NTS. The grievor acknowledged that he did not prepare the training materials and that he was not present when they were written.

16 The grievor explained that fit-testing can be done only on clean-shaven employees because of the necessity that the masks fit tightly. Because of the requirement to be clean-shaven, the grievor explained that he could be required to send an employee who refused to shave back to the workplace. He stated that the authority to refuse to provide refresher training to an employee who refuses to shave was akin to a supervisory authority and that he was responsible for the people that he was training. He noted that no employee had ever refused to shave when asked.

17 The grievor explained that, not only do the site instructors provide refresher training, they also provide initial training when the equipment changes and to employees who are not part of the CX group. However, he stated that he had done only fit-testing for a non-CX group receiving initial training.

18 In cross-examination, the grievor compared his duties as an on-site instructor against the key activities set out in the CX-03 job description for a Staff College Instructor. He acknowledged that he did not plan the training or schedule the participants but stated that he did coordinate training times with the employer for those employees who could not be trained during the regular refresher training period. Furthermore, he and the other instructors worked out their own training schedules. The work of contacting employees to be trained is done by the Institution’s staff training coordinator.

19 The grievor stated that he participated in identifying training needs because he met with the employer to identify the need for training on particular equipment. He stated that he did not participate in course analysis or curriculum design and that he did not act as a course evaluator. He did not instruct at the CTP and did not provide student evaluation reports. However, he stated that he did provide some counselling and career advice. He said that he explained to the participants that it is necessary to be clean-shaven to take the refresher training and that failing to take the refresher training could impact a correctional officer’s career. However, other than that advice, he acknowledged that he did not provide advice and counsel. The grievor also stated that he participated in training projects and committees indirectly, as he was a member of the occupational health and safety committee, which discussed training.

20 The grievor stated that he maintained a training inventory to the extent that he performed minor maintenance on SCBA equipment, such as replacing batteries. However, maintaining equipment is generally contracted out. The set-up for the training was done by the on-site instructors. The grievor stated that the site instructors prepared the facility for training the night before training began and arrived early in the morning to finish the set-up. The site instructors washed and disinfected the equipment before it was used again.

21 In cross-examination, the grievor reviewed his CX-02 job description, which he stated he had never seen before. He acknowledged that it required him to have knowledge of the SCBA but said that, in fact, he had more than just knowledge because he provided instruction on the SCBA. He also acknowledged that the job description also stated that incumbents would provide on-the-job mentoring and coaching. However, he stated that the Institution has a formal mentoring and coaching program, in which employees can volunteer to be mentors.

22 The grievor explained that he filed his grievance once he was paid, even though it was some time after the refresher training was completed. Allowances are paid quarterly; allowances for work done in July, August and September are paid in October. The same is true for overtime premiums.

23 Mr. Thompson testified that he has been deputy warden at the Institution for almost three years. Immediately before working at the Institution, he was a correctional supervisor at Kingston Penitentiary. One of his duties as a correctional supervisor was to schedule training, and therefore, he worked with the site instructors to organize institutional training. He also worked with the Staff College to ensure that the site instructors were trained properly to be trainers. He supported the expansion of the role of correctional officers to include instructing as institutional trainers.

24 Mr. Thompson explained that the initial SCBA training is provided by CX-03 Staff College instructors. That training is longer than the refresher training provided by the site instructors because it is the first time that the participants are exposed to the information. The purpose of the refresher training is simply to remind participants of the information that they had already acquired through the initial training. Therefore, the refresher training does not need to be as long or as detailed. The employer expects that the site instructors will follow the NTS to the letter, with no deviation.

25 Reviewing the role of the site instructors, Mr. Thompson stated that they are trained by CX-03 instructors from the Staff College and that their work is overseen by the Staff College. Otherwise, they are supervised by correctional supervisors at the Institution. The site instructors are responsible for the fit-testing and for conducting the refresher training. They are supposed to correct the participants’ tests, but in some cases the students correct their own tests. Before 2009, the correctional supervisors reviewed the tests to determine who passed and who failed, but after 2009, the Institution’s staff training coordinator began reviewing them to determine the results. The site instructors are often reluctant to report the results because it means informing on their peers, and so it is left to the manager or to the staff training coordinator. The site instructors also do not prepare evaluation reports of the training or provide overall input on participants’ performance. However, on cross-examination, Mr. Thompson acknowledged that, if a participant failed the refresher training, he would contact the grievor to learn why, so to that extent, the grievor was able to provide an evaluation or report.

26 Mr. Thompson testified that the site instructors work with the Institution’s staff training coordinator to prepare the trailer where the training is held. If equipment is needed, the instructors tell the staff training coordinator, who then acquires it. However, the instructors are responsible for setting up the machine for fit-testing, as Mr. Thompson acknowledged on cross-examination.

27 The Institution’s staff training coordinator also coordinates the training. He or she works with the site instructors to prepare the schedule for training and then works with the correctional supervisors to organize the participants’ training schedules. The staff training coordinator also keeps the records of staff training and advises the instructors of changes to the curriculum.

28 The materials used by the site instructors for the refresher training were developed and distributed by the Learning and Development Branch of the CSC’s national headquarters. Instructors from the national headquarters train the Staff College instructors, who in turn train the site instructors. The Staff College instructors also train the site instructors on equipment changes. Mr. Thompson testified that training on new equipment, which is “conversion” training, requires the same approach and skills as refresher training but on new equipment.

29 Mr. Thompson reviewed the key activities set out in the job description of the Staff College training officer, classified CX-03 (Exhibit E-1). He stated that site instructors, such as the grievor, do little of the planning and set-up for the refresher training because that role is mainly filled by others. Nor do the site instructors coordinate the refresher training. Although the grievor knows when the training is scheduled, how many students will be trained and how many instructors there will be, the coordination is done by the staff training coordinator. The identification of training needs is not performed by the site instructors, although they might provide some input. Furthermore, curriculum analysis and design is performed by the Staff College instructors and officers from the Learning and Development Branch, not the site instructors. Site instructors might occasionally be asked to sit on committees, but that is not part of their role. Site instructors only rarely act as counsellors or instructors at the CTP, which also is not part of their role. Site instructors do not provide student evaluation reports for each student. They do not provide advice on career management. They do not provide advice to management on training and development. Site instructors are not trained to repair equipment, and furthermore, a staff member is responsible for equipment maintenance, so they do not do that either. Finally, while participating in committees and training projects is listed as one of the key activities in the Staff College instructor job description, Mr. Thompson testified that any staff member could participate in committees and training projects because doing so is not unique to that job.

30 Mr. Thompson stated that correctional officers are not acting as CX-03s when they provide refresher training at the institutional level. They do not provide the initial training, which is done by the Staff College instructors at the CTP, who do not provide refresher training at the institutional level.  In cross-examination, he agreed that a CX-01, acting as a CX-02, would be entitled to acting pay as a CX-02, as well as the instructor allowance.

31 Mr. Thompson testified that, under the CX-02 job description (Exhibit E-2), correctional officers are responsible for peer training, which could include refresher training. He stated that correctional officers at the CX-02 level mentor and coach the CX-01s within the units in the institution. He testified that the role of the CX-02s is more than just record keeping. They take part in case management, which involves playing an important role in inmate employment. They are actively involved in inmate hiring and pay evaluation, and they are responsible for ensuring that inmates are aware of changes to policies and practices. On cross-examination, he acknowledged that there is a formal mentoring program at the Institution. He also acknowledged that the work of the site instructors as trainers is not assessed on their performance appraisals.

32 Mr. Thompson stated that, in 2009, the site instructors were told that they would not be receiving acting pay. Had they wished, they could have confirmed their payments by consulting with their correctional manager or the deputy warden, as the acting pay sheets have to be signed daily.

33 Ms. Anderson is the manager of program delivery at the Staff College. She currently manages three CX-03s and is responsible for the national training standard portfolio for the CSC’s Ontario region and for the “train the trainer” program, as well both initial and refresher training for institutional trainers.

34 Ms. Anderson testified that new correctional officers are primarily trained by the Staff College instructors (CX-03) through the CTP. Some of the instructors have specific portfolios, such as training the institutional trainers for different security training courses. She noted that the CTP training materials were created by the Learning and Development Branch at national headquarters, while the refresher training materials for the SCBA were developed by a CX-03 at the Staff College in consultation with the technical services section at the CSC’s national headquarters. The Staff College instructors only rarely become involved in refresher training; it is not a primary role for them.

35 Ms. Anderson explained that the “train the trainers” programme is delivered by CX-03s to the institutional instructors to prepare them to provide the refresher training and to refresh their training skills. She noted that refresher training simply “refreshes” skills already learned or acquired. She said that the refresher training differed from the initial training given by the instructors at the Staff College. The initial training teaches new skills by breaking them down and explaining them, whereas in the refresher training, the participants already have the skills. However, she acknowledged in cross-examination that participants are expected to be as proficient after refresher training as after their initial training.

36 Ms. Anderson explained that the Staff College instructors plan and coordinate training and are responsible for sending out communications, setting up the training, and setting up and acquiring any equipment used for the training, as well as ordering any printing of materials or supplies. She stated that they would participate in the identification of training needs and would assist the site instructors in identifying any training needs.

37 According to Ms. Anderson, the Staff College instructors are involved in curriculum development and in the re-vamping and updating of teaching materials, particularly in response to new policies and new legislation. They analyze the existing curriculum and provide feedback to her and to CSC’s national headquarters. They also assist headquarters in the design and development of new courses. As part of their responsibilities, they pilot new courses and provide course evaluations.

38 The Staff College instructors also instruct and counsel participants at the CTP. Ms. Anderson explained that there are typically about 25 recruits in each CTP session. Each instructor is assigned to act as a mentor to a group of recruits. The assigned instructor would be the first person to connect with the recruits and to identify behaviour or learning problems. As part of that role, each instructor also provides ongoing feedback both to the students and to her. She stated that it is important for the instructors to document everything and that they meet with her once weekly to review their caseload and identify issues of concern with the students.

39 Staff College instructors are asked for career advice from time to time, particularly on how to become an instructor. Ms. Anderson testified that, in addition to receiving requests for advice from correctional officers, the Staff College instructors also provide advice to management on developmental and learning plans and on training in the region, such as the CTP and the “train the trainer” program.

40 Ms. Anderson noted that the Staff College instructors are responsible for all security equipment and that they maintain vaults of equipment used for different courses. They are responsible for cleaning the equipment and for letting her know if new equipment is needed or if there is a problem with existing equipment. They also participate in several national committees to develop training programs and curricula.

41  On cross-examination, Ms. Anderson agreed that Staff College instructors could be sent to the CSC’s institutions to provide training and that she has also brought site instructors to the Staff College to assist, but she stated that a site instructor would not normally be a lead trainer and that, to her knowledge, the grievor had never been asked to assist with training at the Staff College.

42 Ms. Déspres is the Director of Organizational Design and Job Classification for the employer. Although she has been in that position only for 11 months, she has 32 years of experience in job classification. She explained that the job description for a correctional officer, classified CX-02 (Exhibit E-2), is generic. She stated that the job would be classified by measuring it against the CX Classification Standard (“the Standard”)(Exhibit E-4), which is the measuring tool for evaluating the relative value of jobs.

43 The Standard contains the group definition and notes for raters. Ms. Déspres explained that the evaluation plan is a level–determinative plan and that it includes benchmark positions. The job description would contain descriptions of the key activities of the job and information relating to the four factors to be evaluated, which a rater would then measure against the Standard.

44 Ms. Déspres noted that the description of factors for a level 2 correctional officer in the Standard includes, under the title of “Responsibility,” the following: “[d]iscuss training needs and contribute to the training of staff; participate in the development or select and schedule courses; arrange for resources or deliver courses.” She stated that the role of a CX-02 in peer training could include making a contribution to the training of other staff.

45 Ms. Déspres explained that the Standard includes benchmark positions, which are descriptions of positions that exemplify what is meant by the descriptive notes. The benchmark positions provide a reference point for the evaluators. She noted that the Standard provides two benchmark positions at the CX-02 level, which include responsibilities for training and instructing. Benchmark 4, Security Maintenance Officer, classified CX-02, is a description of a position that demonstrates what is meant by the evaluation process. It describes a CX-02 position in which the incumbent would participate in institutional staff training. Benchmark 6, which describes a correctional officer, classified CX-02, also describes on-the-job training and instructing.

46 On cross-examination, Ms. Déspres acknowledged that the benchmark positions simply help a rater analyzing a job against the Standard to find the correct level. There are four levels of correctional officers, each with a different pay rate and each performing different duties, with different responsibilities. She agreed that the Benchmark 4 position, Security Maintenance Officer, is currently the subject of a classification grievance.

47 On redirect, Ms. Déspres stated there is often overlap between jobs and that higher–rated jobs can often include lower–level duties but that the reverse is not true. Whatever makes a job rated at a higher level is particular only to the higher level.

III. Summary of the arguments

A. For the union

48 As it did in Timson, the union argued that the Lavigne decision applied to the facts of this grievance and that res judicata ought to apply. The facts in Lavigne were almost identical to the facts in this case. Both grievances concerned the same parties and dealt with the entitlement to acting pay of correctional officers, classified CX-02, who delivered on-site refresher training. Any differences, such as the nature of the training being given, were minor.

49 Furthermore, although this grievance involved a later version of the collective agreement considered in Lavigne, the actual language of the provision in question differed only slightly, and the differences related to a point not in issue. In the former collective agreement, clause 50.07 provided that employees were required to act in the higher-rated position for “at least one (1) working day,” whereas in the current collective agreement, the period is “at least eight (8) hours of work.”

50 The union also argued that the inclusion of an “instructor allowance” in clause 43.05 of the current collective agreement, which was not found in the collective agreement under consideration in Lavigne, does not change the entitlement to acting pay. The allowance exists independently of acting pay, and nothing in the collective agreement suggests that those two provisions are mutually exclusive. Had the parties wished, they could have specified that the instructors are not entitled to both acting pay and the allowance, as is found in the prohibition against pyramiding in clauses 22.03 and 24.03 of the collective agreement, but they did not. There was, in fact, evidence that CX-01 correctional officers acting as CX-02s, and acting as instructors, received both the allowance and acting pay. The same logic should apply to CX-02s who act as CX-03 instructors.

51 Citing Brown and Beatty, Canadian Labour Arbitration, 4th Ed,at paragraph 4:2220, the union contended that prior arbitral awards, while not forming binding precedent, are part of the context in which a collective agreement must be interpreted. The union also cited Brown and Beatty at paragraphs 1:3100 and 2:3221. It also contended that subsection 233(1) of the Public Service Labour Relations Act (PSLRA) suggests an inclination for maintaining earlier awards. Furthermore, a minor change to a collective agreement does not affect the binding nature of the prior decision (see Irving Tissue Co. v. Communications, Energy and Paperworkers Union of Canada, Local 786, 2010 NBCA 9). The union argued that, based on those principles, Lavigne ought to be followed. This grievance was brought by the same parties, concerns the same section of the collective agreement, which is largely unaltered, and concerns the same issue.

52 Although the union argued that the grievance should be allowed on the basis of res judicata, it also argued that, on the facts, it is clear that the grievor was entitled to acting pay as a CX-03 Staff College instructor when he acted as an on-site SCBA instructor. The question that must be asked is whether the grievor substantially performed the duties of a higher classification in an acting capacity. If the answer is in the affirmative, the grievor must be paid acting pay.

53 In answer to that question, the union noted that the grievor’s substantive position is that of a correctional officer, classified CX-02. As a CX-02 correctional officer, he supervises inmates in the Institution. His job duties do not include delivering training. The grievor testified that CX-02 correctional officers do not train or give direction to CX-01 or CX-02 correctional officers, nor do they supervise their peers. They work together as a group doing the same job, which is related to security, in the living unit. While there is a mentoring program in place in the Institution, mentors are designated officers.

54 Unless specially chosen and trained, CX-02 correctional officers are not qualified to provide training under the NTS. As a general rule, correctional officers would need to know how to operate the SCBA, including knowing the correct size of the unit and the pre-donning inspection order. The majority of correctional officers use that knowledge only once a year at the refresher training.However, the CX-02 correctional officers chosen to provide on-site refresher training have additional qualifications and knowledge, compared to their peers.

55 At the Institution, only five correctional officers are qualified to provide SCBA refresher training. They are selected by the employer to be trained as institutional instructors. From September to late October or early November each year, they provide SCBA refresher training to about 220 correctional officers and other staff. During that period, they are taken off the regular duty roster and perform only the duties of an instructor. As SCBA instructors, they are responsible for providing the fit–testing, which also requires special training. As part of that requirement, the site instructor would have the authority to direct correctional officers to comply with legislative requirements, including the requirement to be clean-shaven. The ability to provide such direction is not part of the regular duties of a CX-02. Site instructors also correct tests and provide feedback to participants, in addition to providing rationales to the employer as to the results of the training, which is pass or fail.

56 One of the key activities of the Staff College instructors, who are classified CX-03, is the requirement to set up and deliver training for staff within the CSC. The SCBA training content is the same whether it is taught at the Staff College or in the Institution. When the grievor performs training duties, he does so for 100% of the time over a six– week period and is taken off the regular CX duty roster. He has additional training, is required to prepare and set up the facility for training, to provide feedback to participants, to maintain equipment, and to instruct and supervise correctional officers, which are not part of his regular CX-02 duties. Accordingly, when the grievor is providing on-site SCBA training, he is substantially performing the duties of a CX-03 for at least eight hours.

57 The union argued that, following Lavigne, it is not required that the grievor perform all the duties of a CX-03 Staff College instructor. Furthermore, while there may be overlap in the duties of the different CX classification levels, the evidence was that, while the job descriptions of higher-rated positions might include some duties from lower-rated positions, the reverse is not true. In this case, the CX-03 Staff College instructor job description covers refresher training, and the CX-02 job description does not.

58 Given those facts, the union argued that the employer breached clause 49.07 of the collective agreement by not compensating the grievor with acting pay at the CX-03 level for all the days that he acted as an SCBA instructor. The union requested that the grievor be compensated retroactively for all the days he acted as an SCBA instructor, as set out in Exhibit G-5.

B. For the employer

59 Citing Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, the employer argued that it is necessary to examine the ordinary words used by the parties, in order to find their true intention when they entered into the collective agreement. An adjudicator may not modify or alter the collective agreement. In this case, the language in dispute is whether the grievor “substantially performed” the duties of a higher rated classification. The employer argued that the grievor did not substantially perform the work of a CX-03 Staff College instructor and that the duties outlined in his CX-02 job description are sufficient to include his duties as as SCBA refresher training instructor.

60 Reviewing the testimony, the employer noted that Mr. Thompson stated that the grievor followed a course curriculum prepared by someone else when providing the SCBA refresher training. He did not produce or adapt course documents. Ms. Anderson testified that, in fact, the materials used for the SCBA refresher training in 2009 were prepared by a CX-03 Staff College instructor that she supervised. The grievor did not assess the performance of trainees or prepare evaluation reports for each trainee. Mr. Thompson testified that site instructors, such as the grievor, do not always correct the tests; nor do they always advise management directly who passed or failed. He also confirmed that, in 2009, he would personally review the tests to learn the results.He testified that the site instructors who provide refresher training do not schedule the training. He also testified that, if the site instructors who provide refresher training have a problem with a student, they generally ask a correctional manager to deal with it.

61 The employer noted that Mr. Thompson also testified that CX-02 correctional officers take a lead role in their units and act as mentors and coaches to the CX-01 correctional officers. He testified that the work description of a CX-02 correctional officer included peer training. He also testified without hesitation that peer training would include SCBA refresher training. Mr. Thompson also testified that coaching and mentoring could include formal peer training.

62 The job description of a CX-02 correctional officer includes an activity such as on-site refresher training. Under that job description (Exhibit E-2), correctional officers provide coaching and mentoring not only to correctional officers but also to new employees, volunteers and contractors, about such things as the pertinent legislation, policies and procedures. The job description also provides that correctional officers must have knowledge of equipment like the SCBA and must have the communication and listening skills necessary to provide mentoring and instruction. Informing colleagues about following the rules is part of the job. They must also have the skill to make minor repairs to equipment.Ms. Déspres testified that, under the classification standard, peer-to-peer training is included at the CX-02 level and is found in the benchmark position. Providing refresher training would be at the lower end of a CX-03’s duties and overlaps with the CX-02 job description. Performing refresher training is not an indication of acting in the higher–level position.

63 The employer contended that, in 2009, the primary role of the CX-03 Staff College instructors was to provide initial training to new recruits, which the grievor did not do. In fact, the evidence established that it is very rare for a CX-02 to assist a CX-03 in providing initial training, which is different from refresher training. Initial training is twice as long as refresher training and is more in depth, as it involves teaching new skills. The Staff College instructors wrote the materials used in the refresher training. The site instructors had no role in developing the materials used for refresher training. Furthermore, the Staff College instructors trained the CX-02s to provide the refresher training; they trained the trainers. The evidence established that only rarely would a CX-03 be called to provide refresher training at an institution, as it is not part of a CX-03’s primary duties. Furthermore, a CX-03 has never been called to provide refresher training at the Institution.

64 The employer argued that the evidence was clear that the grievor did not perform the main functions of a CX-03 Staff College instructor. He did not identify training needs, design a curriculum, provide feedback to students, perform student evaluations, provide career development advice or maintain an inventory. He did not provide CTP instruction. All he did was provide on-site refresher training, which did not make him a Staff College instructor. Providing instruction is just one aspect of the duties of a Staff College instructor. The job description of a CX-02 is broad enough to include refresher training. Furthermore, the instructor allowance is intended to compensate CX-02s for the extra duties involved in instructing.

65 The employer argued that the jurisprudence shows that the performance of a single duty from a higher-rated position does not mean that an employee is substantially performing the duties of the higher position. Citing Gosselin v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 68, Moritz v. Canada Customs and Revenue Agency, 2004 PSSRB 147, Cameron v. Treasury Board (Solicitor General Canada - Correctional Service), PSSRB File No. 166-02-25643 (19941004), Smith v. Treasury Board (Solicitor General Canada - Correctional Service), PSSRB File No. 166-02-26714 (19960319), and Saint-Georges v. Treasury Board (Solicitor General Canada - Correctional Service), PSSRB File No. 166-02-22129 (19930614), the employer argued that duties can overlap from one classification level to a higher one, which is not the same as “substantially” performing the duties of a higher-rated position.

66 The employer contended that Lavigne does not apply to the circumstances of this case. The facts that gave rise to Lavigne took place under the former collective agreement. The collective agreement that applies to this grievance has a new clause that specifically addresses compensation for instructors. Unlike Lavigne, the evidence in this grievance established that there is a difference between the initial SCBA training given at the Staff College by the CX-03s and the refresher training given on site by the CX-02s. Furthermore, Lavigne did not examine the job descriptions in question. Refresher training is not a substantial duty of a CX-03.

67 The employer noted that the instructor allowance provided for in clause 43.05 of the collective agreement was intended to compensate employees for the work that they do as site instructors. By giving the grievor both the allowance and acting pay, he would be paid more than the CX-03 in whose position he claimed he was acting. That would lead to an absurdity in the interpretation of the collective agreement. In addition, citing Brown and Beatty, at paragraph 8:2140, the employer stated that a claim for both benefits is pyramiding, which is not permitted.

68 The employer argued that Canada (National Film Board) v. Coallier, [1983] F.C.J. 813 (C.A.) (QL), applied to the circumstances of this grievance. The grievor could have learned immediately whether he was going to receive acting pay and did not have to wait until he received his paycheque. Under clause 20.10 of the collective agreement, he had 25 days in which to file a grievance from the date on which he knew or should have known of the circumstances giving rise to the grievance. However, even if this were a continuing grievance, given Coallier, any remedy would be limited to the 25 days preceding the filing of the grievance.

69 In conclusion, the employer argued that the grievor was not entitled to acting pay because the duties relating to providing SCBA refresher training fell under his work description. Therefore, he was not substantially performing the work of a higher-rated position.

C. Union’s rebuttal

70 The union noted that, despite the employer’s argument that the CX-02s who provide refresher training do not create the training materials, correct the tests, advise the employer of the results or schedule the training, in fact, the refresher training was created in conjunction with the CSC’s national training department in Ottawa. The grievor testified that he always checked the answers given by the students on the tests; the evidence established that the on-site instructors had to be able to provide rationales to the employer of training results. Finally, there was no evidence that the Staff College instructors scheduled training. The union also noted that, in spite of the employer’s argument that training was part of mentoring and coaching in the CX-02 job description, Mr. Thompson testified that a regular CX-02 could not deliver NTS training. Since SCBA refresher training is included as part of NTS training, it would appear that, on the employer’s own evidence, a regular CX-02 could not deliver refresher training. Furthermore, the CX-02 job description does not provide for “training.”

71 The union also contended that the classification standard is a tool used to evaluate jobs. Job descriptions are developed and then measured against the standard to determine the classifications and levels. The classification standard cannot add content or duties to a job description. Furthermore, the benchmark positions are simply examples to help an evaluator determine a job’s value and are not binding. The union noted that, while Ms. Déspres said that duties can overlap between classifications, a lower-level position cannot include duties from a higher-level position.

72 According to the union, although the employer stated that the primary role of a CX-03 Staff College instructor was to provide initial training, in fact the job description does not specify that but states only that they deliver training. The union also noted that the refresher training is simply a condensed version of the initial training rather than being different training.

73 The union stated that the jurisprudence relied upon by the employer is not applicable because it concerns situations of an overlap in job descriptions, but that is not the case in this grievance. There is no overlap between the two job descriptions. The primary role of the CX-03 is instruction, while the primary role of the CX-02 is case management.

74 The union argued that the grievor was entitled to grieve once he received his pay stub. Furthermore, the union argued that the time limits should be more than 25 days because the grievor received his pay quarterly and received a cheque for the period beginning in July only in October. In any event, under section 228 of the PSLRA, an adjudicator can make any order that is appropriate to remedy a breach of a collective agreement. Therefore, in the circumstances of this grievance, it would be fair and appropriate to remedy the entire breach of the collective agreement.

IV. Reasons

75 The grievance before me, filed November 2, 2009, provides as follows: “I grieve the employer’s decision not to pay me CXIII acting pay for all the days that I acted as a SCBA instructor, contrary to the collective agreement.” As corrective action, the grievor asks in his grievance that he “… be paid CXIII pay retroactively for all the days when I have acted as a SCBA instructor.”

76 Although the grievance does not identify the particular provisions of the collective agreement at issue, the parties agreed that clause 49.07 applies to the facts of the grievance. For ease of reference, that clause is reproduced as follows:

49.07 When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least eight (8) hours of work, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts.

77 The parties also agreed that clause 43.05, “Instructor Allowance”, was relevant to the facts of this grievance. That clause provides as follows:

43.05 Instructor allowance

When an employee acts as an instructor, he shall receive an allowance equal to two dollars fifty cents ($2.50) per hour, for each hour or part of an hour.

78 The union argued that the principle of res judicata applied to the facts of this grievance. Citing Brown and Beatty, at paragraph 2:3221, the union took the position that the facts of Lavigne were nearly identical to those in this grievance and that, therefore, the decision in Lavigne is binding on me.

79 However, I do not find that the facts of Lavigne are identical to those in this grievance. This grievance involves a later collective agreement which is somewhat different from that considered in Lavigne. As noted in Brown and Beatty, at paragraph 2:3221, three conditions must apply for the principle of res judicata to apply: the grievances must involve the same parties, the same collective agreement and the same issue in dispute. That is not so in this case. Although the parties are the same and the issue is the same, the collective agreements in dispute are not.

80 I agree with the union that the change in language in clause 49.07 of the collective agreement (clause 50.07 in the former agreement) is minor and irrelevant to the matter in issue. However, I do not agree that the addition of the instructor allowance in clause 43.05 of the current collective agreement, which was not in the collective agreement considered in Lavigne, is also immaterial to the matter in issue. I believe that the applicability of the instructor allowance is an important consideration in the grievance before me, and therefore, I cannot find that the matter in dispute is exactly the same as that considered in Lavigne. The adjudicator in that case explicitly did not rule on the applicability of the instructor allowance, and any comments that he made about the provision were strictlyan expression of his opinion rather a part of the decision. For that reason, I do not believe that the principle of res judicata applies in this case.

81 Further, I believe that the facts of this grievance differ somewhat from those considered in Lavigne. In Lavigne, the adjudicator found that the grievors, who were correctional officers, classified CX-02, delivered exactly the same firearms training course in the institutions that the national firearms instructors, classified CX-03, delivered. In fact, he found that the firearms training at issue in that case was a key element of the job of the national firearms instructor, classified CX-03, and that the CX-02s who delivered the same firearms training at the institutions were performing that duty 100% of their time for at least a day, thereby entitling them to acting pay.

82 That is not exactly the situation in this grievance. The evidence before me was clear that the grievor delivered refresher SCBA training that was somewhat different from the training given by the instructors at the Staff College, since it was a day shorter in length, even though the teaching materials were the same. Evidence was also before me that the Staff College instructor position was more extensive than simply providing instruction on the SCBA. In Lavigne, it appears that the firearms instruction at issue was a significant function of the national firearms instructors. Further, in contrast to Lavigne, I have the benefit of the applicable job descriptions that, it seems to me, are material to any claim that an employee is performing the duties of a higher classification. Given those differences from Lavigne, I believe that it is important that this grievance be decided on the merits and not on the basis of res judicata, as argued by the union.

83 According to clause 49.07 of the collective agreement, a grievor seeking to establish entitlement to acting pay has the onus of proving that he or she has been required by the employer to “… substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least eight (8) hours of work…” As held in Cooper and Wamboldt v. Canada Revenue Agency, 2009 PSLRB 160, in satisfaction of that onus, the grievor must establish each element of the provision. In this grievance, there is no dispute that the grievor was required by the employer to perform the duties in question. There is also no question that he performed the duties for at least eight hours of work. There is also no question that, if the grievor was substantially performing duties of a higher classification, it was in an acting capacity. What is not clear is whether the grievor “… substantially performed the duties of a higher classification level…” That is the matter in issue in this grievance.

84 The employer contended that the grievor’s role as a site instructor for the SCBA refresher training falls within his CX-02 job description (Exhibit E-5) and is an overlapping duty with the CX-03 Staff College training officer job description (Exhibit E-1). That argument relies on a finding that acting as an instructor can be described as “on-the-job mentoring and coaching,” which is the duty in the CX-02 job description that the employer identified. The employer also pointed to the classification standard and benchmark positions as evidence that the grievor is required to have the skill to perform “peer-to-peer” training.

85 I do not believe that the grievor’s role as an instructor for the SCBA refresher training can be subsumed within the description of on-the-job mentoring or coaching. While I accept that there is an element of instruction in coaching and mentoring, the grievor’s role as an SCBA refresher training instructor is a more formal, classroom-focused enterprise than those words suggest. I cannot find that providing formal classroom instruction falls within the duties of the grievor’s CX-02 correctional officer job description, which is based largely on performing security and case management functions within a penitentiary.

86 The fact that the Standard and benchmark positions (Exhibit E-4) include some responsibility for training at the CX-02 level does not mean that the grievor’s job description does. It simply means that it could. The Standard is a guide for rating positions, and the benchmark positions within it are examples of similar types of positions at each level to assist job classification raters place a position within the classification framework. According to the Standard, an employee at the CX-02 level could be expected to have responsibility for discussing training needs and contributing to the training of staff, participating in the development of courses, selecting and scheduling courses, and arranging for resources or delivering courses. At the CX-03 level, the Standard provides that an employee might have responsibility for determining training requirements and planning, developing and conducting institutional training programs. The Standard’s only purpose in differentiating between the two responsibility levels is to assign a level to a position.

87 Although the grievor performed duties that fell outside his job description, it is not necessarily the case that he substantially performed the duties of a higher classification. He must still demonstrate that, in acting as a SCBA refresher training instructor, he substantially performed the duties of a CX-03 Staff College training officer.

88 The CX-03 job description (Exhibit E-1) sets out nine key activities: planning, coordinating and presenting training programs to departmental staff; participating in the training needs identification process; participating in the analysis, curriculum design, evaluation and validation of courses; acting as counsellor, instructor, facilitator or assigned coordinator for the CTP; providing evaluation reports for each student; providing advice to staff on the relevance of training programs related to job performance standards; providing advice and counsel to management on all aspects of training and development; assisting in the maintenance of an inventory and controlling training equipment at different training locations, including performing minor maintenance and dealing with firearms; and participating in committees and training projects.

89 The evidence is clear in this case that the grievor did not plan or coordinate training. That work was mainly done in the Institution by the staff training coordinator and the correctional managers. The grievor’s only contribution was to organize his schedule with respect to those of the other instructors and to assist in the rescheduling of training for those correctional officers unable to attend the regular training session. The evidence is also clear that the grievor did not participate in the training needs analysis. He did not design curricula or evaluate or validate courses. He did not act as a counsellor, facilitator or instructor at the CTP. He did not perform student evaluations, although he was prepared to explain the results of the test the participants completed at the end of the refresher course. He did not provide advice to staff on the relevance of training programs, despite his suggestion that advising correctional officers to shave in order to participate in the refresher training falls within that job duty. He did not provide advice to management on all aspects of training and development. He did not maintain an inventory of training equipment, as Mr. Thompson testified that that work was done by the staff training coordinator. The grievor testified that he made minor repairs to the SCBA and other necessary equipment to the extent that he changed batteries but acknowledged that the maintenance of the equipment was contracted out. Finally, although the grievor testified that he participated in committees in which training was discussed, it was clear that he did so as a correctional officer and not as a Staff College training officer.

90 The entitlement to acting pay under this collective agreement arises if an employee performs the duties of a higher classification for eight hours. It would clearly defeat the purpose of the provision to expect that an employee would perform the whole range of duties of the higher classification in such a short period. The question is, what is the threshold? How many of the duties of the higher classification can you expect an employee to perform in eight hours? In situations in which an employee is asked to replace an employee in a higher classification, the question of entitlement to acting pay is somewhat simplified because the expectation is that the employee will perform whatever duties the incumbent would normally have performed.

91 However, in this grievance, the grievor was not replacing a CX-03. In fact, the evidence was that CX-03s rarely, if ever, deliver SCBA refresher training in the CSC’s institutions. The grievor’s claim for acting pay is based solely on the fact that he acted as an instructor for the SCBA refresher training at the Institution for six weeks in the fall of 2009. He did not assert in any meaningful way that he performed any duties from the CX-03 job description other than that instruction, and the evidence was clear that he did not perform other duties from the job description. In isolating and performing a single function from the CX-03 job description, can the grievor be said to be substantially performing of the duties of a higher classification level?

92 The jurisprudence has considered the question of what constitutes to “substantially perform.” While it is accepted that employees do not have to perform all the duties of the higher position to receive acting pay, there is some variation in the jurisprudence as to how much time must be spent performing the duties of the higher position. As the adjudicator in Cooper and Wamboldt noted, at paragraph 48:

[48] However, there is no consistency in the jurisprudence. Many tests have been established; for instance, performing the duties of the higher classification level for 100% of the time for one day has been decided as meeting the “substantially performed” test (see Lavigne et al., at paragraph 54). Another case has concluded that 40% of an employee’s time spent on the work of the higher classification level does not meet the test of “substantially performed” (see Beaudry et al., at paragraphs 29 to 33). But if the employee performs the work of the higher classification level 70% of the time, it meets the test (see Bégin et. al.).

93 In this grievance, the grievor performed a singular duty from the job description of a higher classification 100% of the day every day for about six weeks. While it might be reasonable to expect that an employee acting in a position for a day would perform only a small portion of the duties of the higher position, in a six-week period, it also seems reasonable to expect that the employee will perform a wider range of the duties of the position. The evidence given by Ms. Anderson was that, even while instructing courses during the CTP, the instructors at the Staff College performed a broader range of duties than simply instructing. They provided feedback, advice and counsel to the participants and course evaluation to Ms. Anderson, as well as planning coordinating and setting up the courses. The grievor did none of those things.

94 Unlike an employee who replaces another employee in a higher classification, the grievor is not in a position to claim that, even though he performed only a small portion of the duties of the higher classification, he was ready to do them all. In fact he was not stepping into the shoes of a Staff College instructor. The grievor’s claim was based on the fact that, by acting as an instructor in the Institution, he was substantially performing the work of a Staff College instructor. The essence of his claim is that, simply by providing instruction, which is not a part of his job description, he acted as a Staff College instructor.

95 I do not agree. The act of providing instruction is only a small portion of the job of a Staff College instructor, as set out in the description for that position (Exhibit E-2). It seems to me that, when an employee is claiming acting pay based on the assumption of duties not found in his or her own job description, as opposed to a claim for acting pay based on the replacement of an employer in a higher–rated position, the notion of “substantial performance” has to have some meaning. Isolating one task, unless it is a major and unique part of the higher classification, does not amount to substantial performance, in my opinion. Given that the Standard contemplates instruction as a part of the CX-02 classification level, I do not find it to be a unique feature of the Staff College instructor position, and it is certainly not the major part of the job. Therefore, I do not find that the grievor was substantially performing the duties of a higher classification.

96 Although I find that the grievor was not acting in the position of a Staff College training officer, I acknowledge that he was performing duties that are not found in his job description. The employer argued that the instructor allowance provided for in clause 43.05 of the collective agreement was intended to compensate employees for the additional responsibility. The employer also argued that the union’s position that the grievor was entitled to both the instructor allowance and acting pay would lead to an absurd result because the grievor would actually earn more than the CX-03 in whose position he was acting. I agree that such an incongruous result should be avoided.

97 However, the union is correct in noting that nothing in the collective agreement prevents an employee from receiving both acting pay and the instructor allowance. A CX-01, acting as a CX-02, would surely be entitled to the allowance if required to instruct. The presence of the allowance is not inconsistent with acting pay. However, it does suggest that the parties recognized that instruction is a task that a correctional officer covered by the collective agreement might be called upon to provide for which there was no other compensation. That lends support to my finding that the grievor was not acting as a CX-03 Staff College training officer when he was an instructor for the SCBA refresher training in the fall of 2009.

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

V. Order

99 The grievance is dismissed.

June 17, 2013.

Kate Rogers,
adjudicator