FPSLREB Decisions

Heard at Edmonton, Alberta,
March 10 and 11, 2015.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1        Robert Fields and Richard Tyefisher (“the grievors”) were both employees of Transport Canada (TC or “the employer”).

2        On August 18, 2011, Mr. Fields filed a grievance in which he stated that he had “… not received the appropriate vacation leave entitlements as related to Article 38.02 and all other articles of the collective agreement.” As relief, he asked that the employer comply with clause 38.02 of the relevant collective agreement, that it recognize his years of continuous service as a member of both the Royal Canadian Mounted Police (RCMP) and as an employee of the public service towards vacation leave entitlement, and that it reinstate his vacation leave entitlement.

3        On August 23, 2011, Mr. Tyefisher filed a grievance, similar in nature to that of Mr. Fields, alleging that on July 25, 2011, the employer recovered from him vacation leave credits. As relief, Mr. Tyefisher asked that the vacation leave credits that were removed be restored, that he be provided all future vacation leave credits that he is entitled to, and that previously granted and used vacation credits not be clawed back.

4        The employer denied both grievances. They were referred to the Public Service Labour Relations Board (PSLRB) for adjudication on December 17, 2012.

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former PSLRB as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) as that Act read immediately before that day.

II. Summary of the evidence

6        At the outset of the hearing, the parties provided me with an agreed statement of facts (ASF). Both grievors testified, and the employer called one witness.

7        Before joining TC, both grievors were members of the RCMP. Mr. Tyefisher began his career with the RCMP on April 23, 1979, and voluntarily left the force on February 28, 2006, after almost 27 years of service. Mr. Fields joined the RCMP on November 22, 1993, and voluntarily left on January 3, 2005, after just over 11 years of service. Both grievors received severance payments upon leaving the RCMP. They both testified that they had no option as to whether they wished to take this severance; they were given it upon their departures.

8        Upon their departures from the RCMP, both grievors immediately commenced working with TC. Mr. Fields started on January 4, 2005, as a civilian aviation safety inspector at the TI-06 group and level in Winnipeg, Manitoba, and Mr. Tyefisher started on March 1, 2006, in regional aircraft maintenance at the EG-05 group and level in Edmonton, Alberta.

9        At the time of the hearing, Mr. Fields was still employed by TC in Winnipeg, occupying a technical team head position in the Winnipeg Airworthiness Group. In 2012, Mr. Tyefisher was advised that his position was being made surplus, and he elected to resign, effective June 22, 2012.

10        At all relevant times after they joined TC, both grievors were members of the Technical Services (TS) bargaining unit represented by the Public Service Alliance of Canada (PSAC). The terms and conditions of their employment were governed in part by a collective agreement entered into by the Treasury Board (TB) as employer and the PSAC on November 27, 2009, which expired on June 21, 2011 (“the TS collective agreement”).

11        Article 38 of the TS collective agreement is entitled “Vacation Leave With Pay”. Clause 38.02 falls under the heading “Accumulation of Vacation Leave Credits” and states as follows:

38.02 An employee shall earn vacation leave credits at the following rate for each calendar month during which the employee receives pay for at least seventy-five (75) hours:

1. nine decimal three seven five (9.375) hours until the month in which the anniversary of the employee’s eighth (8th) year of service occurs;
2. twelve decimal five (12.5) hours commencing with the month in which the employee’s eighth (8th) anniversary of service occurs;
3. thirteen decimal seven five (13.75) hours commencing with the month in which the employee’s sixteenth (16th) anniversary of service occurs;
4. fourteen decimal four (14.4) hours commencing with the month in which the employee’s seventeenth (17th) anniversary of service occurs;
5. fifteen decimal six two five (15.625) hours commencing with the month in which the employee’s eighteenth (18th) anniversary of service occurs;
6. sixteen decimal eight seven five (16.875) hours commencing with the month in which the employee’s twenty-seventh (27th) anniversary of service occurs;
7. eighteen decimal seven five (18.75) hours commencing with the month in which the employee’s twenty-eighth (28th) anniversary of service occurs;
8. For the purpose of this clause only, all service within the public service, whether continuous or discontinuous, shall count toward vacation leave except where a person who, on leaving the public service, takes or has taken severance pay. However, the above exception shall not apply to an employee who receives severance pay on layoff and is reappointed to the public service within one (1) year following the date of layoff.

…

12        Upon commencing their employment with TC, both grievors began to accumulate vacation leave credits under clause 38.02(a) of the TS collective agreement at the rate of 9.375 hours per month.

13        On May 4, 2010, the Treasury Board of Canada Secretariat (TBS) issued an information bulletin to the heads of compensation and labour relations, the subject line being “Service as a member of the RCMP - Vacation Leave Entitlements” (“the Information Bulletin”). It stated as follows:

In the majority of collective agreements, vacation leave credits are earned based on years of ‘service within the public service’ and ‘public service’ is defined in the Public Service Labour Relations Act (PSLRA) as departments named in Schedule I, other portions of the federal public administration in Schedule IV and separate agencies in Schedule V of the Financial Administration Act (FAA).

The PSLRA specifically excludes members of the Royal Canadian Mounted Police (RCMP) from the definition of ‘employee’. Therefore, for vacation leave entitlement purposes, years of service as a member of the RCMP have historically not been recognized.

However, the RCMP is included in Schedule IV of the FAA and in the Gingras v. Canada (2 F.C. 734) decision, the Federal Court of Appeal identified a member of the RCMP to be a person employed in the public service, for the purposes of bilingual bonus. As a result, the Treasury Board Secretariat (TBS) has reviewed the current interpretation with respect to service as a member of the RCMP in the context of vacation leave entitlements.

Effective April 1, 2010, employees who have prior service as a member of the RCMP will have their years of service recognized as public service and will be credited with the appropriate vacation leave credits as per the relevant collective agreement. As such, eligible employees may receive additional vacation leave credits as of April 1, 2010.

In order to initiate this review, departments are asked to advise employees who have prior service as a member of the RCMP, to contact their Compensation Advisor who will conduct the review of their personal file and make the necessary adjustments.

As previously identified, amended leave credits would apply retroactively to the start of this fiscal year, April 1, 2010. There shall be no recalculation of previous vacation year entitlements.

Please note that this Information Bulletin does not apply to service within the Canadian Forces as it is not recognized as ‘service within the public service’.

All questions should be directed to the appropriate corporate officials.

Departmental Corporate Labour Relations and Corporate Compensation Officials are advised that all enquiries should be sent directly to the following email address: Interpretations@tbs-sct.gc.ca

Original signed
Marc Thibodeau
Director
Compensation Operations
Core Public Administration
Compensation and Labour Relations
Office of the Chief Human Resources Officer

14        Marc Thibodeau, under whose name the Information Bulletin was sent, did not testify.

15        On May 20, 2010, as per the Information Bulletin, Mr. Tyefisher emailed his Pay/Compensation section at TC, advising it of his RCMP and TC service details.

16        On June 9, 2010, Mr. Tyefisher received an email from Pay/Compensation at TC, which advised him that as per information from the TBS, his service as a member of the RCMP would be added to the calculation of his annual vacation leave credits as a TC employee. The email stated as follows:

…

• Anniversary date for leave purposes before adding the RCMP service: March 1^st, 2006
• New anniversary date for leave purposes with RCMP service: April 23^rd, 1979

Saying all this, originally you were earning 9.375 hours per month of annual leave. Effective April 1^st, 2010, you will now be earning 18.75 hours per month of annual leave.

We have updated your LEX account to reflect the new anniversary date and have made the adjustment to your annual leave credits.

…

17        On May 25, 2010, as per the Information Bulletin, Mr. Fields emailed his Pay/Compensation section at TC, advising it of his RCMP and TC service details.

18        On June 28, 2010, Mr. Fields received an email from Pay/Compensation at TC, which advised him that as per information from the TBS, his service as a member of the RCMP would be added to the calculation of his annual vacation leave credits as a TC employee. The email stated as follows:

…

• Anniversary date for leave purposes before adding the RCMP service: January 4^th, 2005
• New anniversary date for leave purposes with RCMP service: November 22^nd, 1993

Saying all this, originally you were earning 9.375 hours per month of annual leave. Effective April 1^st, 2010, you will be earning from April 2010 to October 2010 a total of 13.75 hours per month and then from November 2010 to March 2011 a total of 14.4 hours per month of annual leave.

We have updated your LEX account to reflect the new anniversary date and have made the adjustment to your annual leave credits.

…

19        On July 19, 2010, Chantal Nadon, compensation manager at TC, sent an email to an address identified as “TB Interpretations”, with respect to the Information Bulletin, which stated as follows:

…

After reading the information bulletin that was sent to us back in May 2010, no where we do make any reference to Severance Pay. Can you please confirm if an employee that is an AO who has previous RCMP service and had received severance pay if we should count all the RCMP service or should we minus the service for which he had received severance pay?

Under the collective agreement for the PA group we make reference to the severance pay but nothing under the AO collective agreement.

(a) For the purpose of clause 34.02 only, all service within the public service, whether continuous or discontinuous, shall count toward vacation leave except where a person who, on leaving the public service, takes or has taken severance pay. However, the above exception shall not apply to an employee who receives severance pay on lay-off and is reappointed to the public service within one year following the date of lay-off.

…

[sic throughout]

20        On August 6, 2010, an unidentified person at TB Interpretations replied to Ms. Nadon’s email as follows:

…

The Information Bulletin makes reference to the collective agreements that provide for the calculation of vacation leave credits based on years of ‘service within the public service’. In the AO Collective Agreement, the employees earn their vacation leave credits based on “continuous employment”, defined in the Directive on Terms and Conditions of Employment.

The provision concerning severance pay in paragraph 34.03(a) of the PA Collective Agreement would apply to employees subject to that agreement with past service with the RCMP.

For an employee subject to the AO Collective Agreement who has past service with the RCMP, the years of service would count as continuous employment as long as the conditions of subsections 20.1(iii) of the Directive on Terms and Conditions of Employment are met.

…

21        Ms. Nadon replied to the unidentified TB Interpretations person on August 10, 2010, as follows:

…

I understand unless I am missing something, what I need to know is: if we still count the year of service even if someone (in our case an AO) received severance pay when they left RCMP?

…

22        On August 12, 2010, the unidentified TB Interpretations person replied to Ms. Nadon, stating as follows:

Unlike the provisions of collective agreements that provide for the calculation of vacation leave credits based on years of “service within the public service”, the fact that the employee has received a severance pay from the RCMP does not have an impact on the calculation of his leave entitlement based on “continuous employment”.

As indicated below, you would count the years of past service with the RCMP as continuous employment for the purpose of vacation leave calculation as long as the employee meets the conditions of subsection 20.1(iii) of the Directive on Terms and Conditions of Employment namely:

1. Has been honourably released;
2. Has had an indeterminate appointment to the PS within three (3) months of leaving the RCMP;
3. Made a valid election to surrender his RCMP pension.

…

23        On December 1, 2010, the employer advised both grievors that the severance pay they had received upon the end of their RCMP employment might impact their vacation leave credit accrual and leave service dates. Both grievors were requested to complete the appropriate RCMP Form to validate their RCMP service.

24        On December 17, 2010, Josee Thellend, a senior compensation advisor at TC, advised Mr. Fields by email that as per the collective agreement and information received from the TB, his vacation leave accrual and leave service date would be adjusted to the original figures. Mr. Fields was advised that because he received severance pay when he left the RCMP, the period he worked with the RCMP (November 22, 1993, to January 3, 2005) could no longer be considered. Mr. Fields was further advised that his leave service date would be January 4, 2005, and that his vacation leave accrual would be 9.375 hours per month. He was advised that 55.75 hours of vacation leave credits would be recovered, and he was asked to advise the employer the period over which he would like that recovery to take place.

25        On December 17, 2010, Mr. Fields replied to Ms. Thellend and advised her that he had voluntarily left the RCMP, that he had been required to take his severance pay, and that he did not receive his severance pay in full. Ms. Thellend replied that same day, advising him she would look further into it and get back to him.

26        On December 21, 2010, Ms. Thellend emailed Mr. Fields that her further enquiries had yielded no change to the TC’s position. Mr. Fields emailed his response, stating that he had been employed as a regular member of the RCMP and that he had not been part of the public service and suggested that the public service severance pay policy did not apply to him.

27        On January 14, 2011, Ms. Thellend replied to Mr. Fields by email and advised him as follows:

…

Here is some information from the Treasury Board Information Notice dated May 4, 2010 on “Service as a member of the RCMP – Vacation Leave Entitlements”:

The PSLRA specifically excludes members of the Royal Canadian Mounted Police (RCMP) from the definition of ‘employee’. Therefore, for vacation leave entitlement purposes, years of service as a member of the RCMP have historically not been recognized.

Effective April 1, 2010, employees who have prior service as a member of the RCMP will have their years of service recognized as public service and will be credited with the appropriate vacation leave credits as per the relevant collective agreement. As such, eligible employees may receive additional vacation leave credits as of April 1, 2010.

…

(h) For the purpose of this clause only, all service within the public service, whether continuous or discontinuous, shall count toward vacation leave except where a person who, on leaving the public service, takes or has taken severance pay. However, the above exception shall not apply to an employee who receives severance pay on layoff and is reappointed to the public service within one (1) year following the date of layoff.

Clarification we received from Treasury Board on the above:

Service as a member of the RCMP – Vacation Leave Entitlements

The term “public service” is not defined in the collective agreements. However, as indicated in Article 2 of the collective agreements “Except as otherwise provided in this Agreement, expressions that are used if defined in the Public Service Labour Relations Act, have the same meaning than that which is given in the Act. “

In the Public Service Labour Relations Act, Public Service is defined as the departments named in Schedule I, the other sectors of the federal government in Annex IV and the separate agencies to Annex V of the Act on Financial Administration [sic] (FAA).

The RCMP falls under Annex IV to the FAA. Consequently, the severance pay that the employee has received is considered a severance payment received by leaving the public service.

…

[Emphasis in the original]

28        Mr. Fields responded that same day via an email to Ms. Nadon, asking her to provide to him a copy of the TB interpretation with respect to the decision, as set out in Ms. Thellend’s January 14, 2011, email.

29        On July 14, 2011, via an email from Senior Compensation Advisor Diane Richer, the employer confirmed to Mr. Fields that it would amend his leave service date to the former date of January 4, 2005. This meant that for the current fiscal year (2011-2012), he would receive the vacation leave entitlement of 112.5 instead of 178.925 hours. It advised him that as of the date of the email, his balance of 223.675 hours would be reduced by 66.425 hours, leaving him with a balance of 157.25 hours.

30        The email further advised Mr. Fields that for the previous fiscal year (2010-2011), he had received 168.25 hours of vacation leave, but should have received only 112.50 hours. As such, he owed a further 55.75 hours. The employer gave him three options for its recovery of the 55.75 hours. He was also advised that if he did not choose one of the three options, the default option of recovering the 55.75 hours over a three-year period would be implemented.

31        Mr. Fields testified that he never received the TB interpretation that Ms. Thellend referenced in her January 14, 2011, email to him.

32        Mr. Fields testified that the employer recovered the vacation leave credits from him that it had stated it would recover.

33        Mr. Fields testified that sometime after April 2010, he had planned to take a vacation and to bring his mother along. Due to the employer’s action, he postponed the trip. However, he did admit that the deposit he had placed on the trip was returned to him.

34        Mr. Tyefisher testified that when he retired from the RCMP, he was accumulating six weeks of vacation leave annually. He stated that in fiscal year 2010-2011 (with TC), he accumulated six weeks of vacation leave, all of which he used.

35        On July 25, 2011, the employer advised Mr. Tyefisher that because the completed RCMP Form had not been returned to it, it would amend his service date to March 1, 2006, and would recover from him 112.50 hours of hours of vacation leave credits. Mr. Tyefisher, like Mr. Fields, was given three options for that recovery. If he did not choose one, the default option of a recovery over a three-year period would be implemented.

36        In cross-examination, Mr. Tyefisher admitted to using up the leave in his vacation leave bank before retiring from TC, despite the fact that the employer had already advised him that it believed it had wrongly advanced him additional vacation leave and that he was not entitled to it.

37        Ms. Nadon testified on behalf of the employer. She was asked to identify article 23 of the Aircraft Operations collective agreement (“the AO collective agreement”). She testified that that article does not contain clause 38.02(h) of the TS collective agreement in the portion related to vacation leave credits, which states as follows:

For the purpose of this clause only, all service within the public service, whether continuous or discontinuous, shall count toward vacation leave except where a person who, on leaving the public service, takes or has taken severance pay. However, the above exception shall not apply to an employee who receives severance pay on layoff and is reappointed to the public service within one (1) year following the date of layoff.

38        Ms. Nadon, in her examination-in-chief, was directed to article 23 of the AO collective agreement, and it was pointed out to her that that agreement does not have a clause similar to clause 38.02(h) of the collective agreement. She was asked, “How it would apply to persons like the grievors?” Ms. Nadon stated that the AO collective agreement is based on “continuous employment” and that criteria must be met. While being questioned on this, she was brought to the three criteria set out in the email of August 12, 2010, sent to her from the unidentified person at TB Interpretations, which stated that the employer would count the years of past service with the RCMP as continuous employment for the purpose of the vacation leave calculation as long as the employee met the conditions of s. 20.1(iii) of the “Directive on Terms and Conditions of Employment”, namely, that that employee

1. has been honourably released;
2. has had an indeterminate appointment to the public service within three months of leaving the RCMP; and
3. has made a valid election to surrender his or her RCMP pension.

39        On May 17, 2013, Ms. Nadon was sent the following email from an unidentified person at TB interpretations, which stated as follows:

…

The conditions under subsection 20.1 of the T’s and C’s for continuous employment are still noted and have not been deleted from the Directive:

(iii) Immediately prior service in the Canadian Forces or the Royal Canadian Mounted Police provided that the person was honourably released and has made or makes a valid election to contribute for that service under the Public Service Superannuation Act (the effective date will be the date the election is completed)

provided that these periods of service are not separated by more than three months;

…

40        Ms. Nadon testified that the three criteria must be met and that otherwise, the service does not count. She stated that when she reviewed the grievors’ situations, nothing met the criteria, so she did not need to contact the TB for clarification.

41        Article 2 of the TS collective agreement is entitled “Interpretation and Definitions”.

42        “Continuous employment” is defined in clause 2.01 of the TS collective agreement as having the same meaning as specified in the employer’s existing “Directive on Terms and Conditions of Employment” on the date on which the collective agreement was signed. That directive was not produced at the hearing.

43        “Employee” is defined in clause 2.01 of the TS collective agreement as a person so defined in the Act and who is a member of the bargaining unit specified in article 9.

44        Article 9 of the TS collective agreement is the recognition clause. It states that the employer recognizes the PSAC as the exclusive bargaining agent for all employees of the employer described in the certificate issued by the Public Service Staff Relations Board (PSSRB) on June 10, 1999, covering employees of the TS group.

45        Clause 2.02 of the TS collective agreement states that except as otherwise provided in the collective agreement, expressions used in the collective agreement, if defined in the Act, have the same meaning as given to them in the Act, and if they are defined in the Interpretation Act (R.S.C., 1985, c. I-21) but are not defined in the Act, they have the same meaning as given to them in the Interpretation Act.

46        The term “service” is not defined in the TS collective agreement, in the Act, or in the Interpretation Act.

47        “Employee” is defined in s. 2(1) of the Act as follows:

employee, except in Part 2, means a person employed in the public service, other than

…

(d) a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that force under terms and conditions substantially the same as those of one of its members;

…

48        “Public service” is defined in s. 2(1) of the Act as follows:

public service, except in Part 3, means the several positions in or under

(a) the departments named in Schedule I to the Financial Administration Act;

(b) the other portions of the federal public administration named in Schedule IV to that Act; and

(c) the separate agencies named in Schedule V to that Act… .

49        The RCMP is listed in Schedule IV to the Financial Administration Act (R.S.C., 1985, c. F-11; FAA).

50        The term “position” is not defined in the TS collective agreement, in the Act, or in the Interpretation Act.

III. Summary of the arguments

A. For the grievors

51        The grievors submit that when clause 38.02(h) of the TS collective agreement is considered, all its words and phrases must be applied. They are all there for a reason and must have a purpose. The employer wants to look at only one part of that clause rather than read it as a whole. When it is read as a whole, only one conclusion can be reached, namely, that this clause is not applicable to RCMP officers because they are not public service employees.

52        Clause 38.02(h) of the TS collective agreement states, in part, as follows: “For the purpose of this clause only, all service within the public service, whether continuous or discontinuous, shall count toward vacation leave except where a person who, on leaving the public service, takes or has taken severance pay.” The grievors were not public service employees as defined by the collective agreement; they did not leave the public service, and their service was under a different Act of Parliament, an Act that required them to take the severance.

53        The Information Bulletin specifically acknowledges that: “public service” is defined in the Act; that the Act specifically excludes RCMP members; and, that historically, for vacation leave purposes, years of service as an RCMP member have not been recognized.

54        The grievors referred me to Gingras v. Canada, [1994] 2 F.C. 734 (C.A.), which is the decision referred to in the Information Bulletin. Gingras does not state that RCMP members are employees; however, the Information Bulletin states that the TB had ignored RCMP members who had transitioned to the public service and then states that it will fix the issue.

55        Gingras was decided when the Act’s predecessor, the Public Service Staff Relations Act (R.S.C., 1985, c. P-35; PSSRA), was in force. In 2005, Parliament enacted the Act, and, like the PSSRA, it again excluded members of the RCMP from the definition of “employee”. RCMP members have never been recognized as members of the public service. They are not public service employees. One cannot be half in the public service and half out.

56        In clause 38.02(h) of the TS collective agreement, the parties used the term “public service” as defined by the Act.

57        Mr. Thibodeau, the person under whose name the Information Bulletin was issued, did not give evidence as to what the Information Bulletin meant.

58        The grievors’ position is that the wording in the Information Bulletin referring to “relevant collective agreement”, where it states that “… employees who have prior service as a member of the RCMP will have their years of service recognized as public service and will be credited with the appropriate vacation leave credits as per the relevant collective agreement,” refers only to determining the amount of vacation leave an employee is to receive.

59        The grievors’ position is that the employer cannot recover the leave credits under s. 155(3) of the FAA because that section refers to pay, wages, and salary, which leave credits are not.

60        The grievors referred me to Combe v. Combe, [1951] 2 KB 2515. The Information Bulletin was an unconditional promise, and the employer was estopped from recovering the leave credits from them.

61        While the promise was made to the employees, and the PSAC was not consulted, since it represents all employees in the bargaining unit, the promise was made to PSAC and is binding on the employer.

B. For the employer

62        The employer submits that there are two issues to be determined:

1. the proper interpretation of the TS collective agreement; and
2. whether the employer was estopped from recovering the leave credits.

63        If the grievors’ arguments that RCMP members are not part of the public service are accepted, then their years of service should not count. The grievors want it both ways — they want former RCMP members to be included for part of clause 38.02(h) of the TS collective agreement but not for all of it.

64        The Information Bulletin does not form part of the collective agreement, but it does provide clarification. “Public service”, as defined by the Act, excludes members of the RCMP. However, the RCMP is included under Schedule IV to the FAA. The collective agreement speaks of years of service in the public service as defined in the Act.

65        The plain meaning of the TS collective agreement carves out an exception in which the years of service do not count, which is when severance pay is taken. The only exception to the exception is employees who received severance and were laid off and reappointed. In this case, the grievors voluntarily resigned.

66        The employer and the bargaining agent negotiated the TS collective agreement, and it must be applied equally. The grievors are subject to it. If they were public servants and they received severance pay, then their years of service could not have counted towards accumulating vacation leave credits.

67        The employer referred me to Collective Agreement Arbitration in Canada, Fifth Edition, by Ronald M. Snyder, in particular to Chapter 2, “Interpretation of the Collective Agreement”, Part 2, “Rules of Construction Used as Aids to Interpretation”, Section A, “Words to be Given Ordinary Meaning”, Section D, “Each Word Should Be Given Some Meaning: The Rule Against Redundancy”, and Part 4, “Use of Statutes in the Interpretation and Application of the Collective Agreement”, Section A, “Legislation May Be Used As An Aid To Interpretation”.

68        The employer has the right to recover the monies from the grievors under s. 155(3) of the FAA. Murchison v. Treasury Board (Department of Human Resources and Skills Development), 2010 PSLRB 93, provides that if s. 155(3) is not available or applicable, then the employer has the authority to clawback either the vacation leave credits or their monetary value under the management rights clause.

69        With respect to the grievors’ estoppel argument, the following four things are required to establish a legal estoppel:

1. A clear and unequivocal representation.
2. The clear and unequivocal representation is meant to affect legal relations between the parties.
3. The conduct or words of one party are intended to be relied upon by the person or persons to whom the conduct is directed or words are made.
4. The person to whom the clear and unequivocal representation is made relied on it to his or her detriment.

70        In support of its position with respect to estoppel, the employer referred me to Maracle v. Travellers Indemnity Co. of Canada, [1991] 2 S.C.R. 50; Treasury Board v. Canadian Air Traffic Control Association, [1984] 1 F.C. 1081 (C.A.); Dubé v. Canada (Attorney General), 2006 FC 796; Telus Communications Inc. v. Telecommunications Workers Union, 2010 BCSC 1429; and Baranyi v. Deputy Head (Canada Border Services Agency), 2012 PSLRB 55.

71        The Information Bulletin was not meant to affect the legal relations between the employer and the PSAC, as it represented this group.

72        The employer submits that the Information Bulletin did not make a clear and precise promise. It referred me to Pronovost v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 93 at para. 75, which states as follows:

[75] … For estoppel to apply, there must have been a promise between the parties to the collective agreement, as stipulated by Brown and Beatty… The parties to the collective agreement are the employer and the bargaining agent and only they can validly commit to interpreting or applying the collective agreement in a certain manner. Although she is a union member, Ms. Pronovost is still not a party to the collective agreement, and therefore she may not base her grievance on a promise by the employer in terms of the interpretation or application, toward her, of article 34 of the collective agreement.

73        The employer submits that the Information Bulletin was not specific to one collective agreement but that it was potentially applicable to many collective agreements and, as such, it must be read in conjunction with the collective agreement at issue, and it must be applied. The evidence from Ms. Nadon was that not all collective agreements are the same; the AO collective agreement was different from the TS collective agreement.

74        The TS collective agreement speaks to the issue of severance pay.

75        The employer also submits that an estoppel cannot be made because there was no detrimental reliance on a promise. When the grievors’ leave records are examined, it can be seen that they were given vacation leave credits that were then taken back. Neither grievor was left with a negative leave balance; in fact, both carried over leave from year to year. If they had positive leave credit balances after the employer clawed back leave credits, then there was no loss and no detriment.

76        While Mr. Fields testified that he did book a trip with his mother, he never lost any money with respect to it.

77        In Prosper v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 140, the grievor in that case actually booked a trip. The adjudicator held that once an employee realizes the employer’s error, the employee has a duty to mitigate wherever possible the damages it caused.

78        With respect to Mr. Tyefisher, not only did he not rely on the promise to his detriment, but also, when he found out the credits were being clawed back from his leave bank, he began to use them, and he used them all, such that the employer was required to recover the monetary value from his severance pay. Mr. Tyefisher did not mitigate as he was required to, as set out in Prosper.

79        The employer referred me to Prévost v. Office of the Superintendent of Financial Institutions, 2011 PSLRB 119, which stands for the proposition that the party that alleges an estoppel has the burden of proof.

80        The employer also referred me to Bolton v. Treasury Board (Indian and Northern Affairs Canada), 2003 PSSRB 39; Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112; and Hamilton v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 91.

81        The employer submits there was no violation of the TS collective agreement and that there was no estoppel. The Information Bulletin did not change the legal relations between the parties to the TS collective agreement as there was no detrimental reliance.

C. Grievors’ reply

82        The fact that the grievors might have carried over extra time is irrelevant. They believed they were entitled to a benefit, and the benefit was taken away.

83        Detrimental reliance was a matter of equity; after receiving their increased leave, once it was taken away, there was a financial impact. It does not matter if there were 500 hours in their leave banks — recovering it was unreasonable.

84        With respect to Mr. Fields, it impacted his family plans, which is more than just a financial impact. When money is taken from someone’s pocket, it is detrimental reliance.

IV. Reasons

85        An adjudicator draws his or her jurisdiction from the Act. As this is not a matter of discipline, a demotion, or a termination, my jurisdiction must flow from s. 209(1)(a) of the Act and must involve the interpretation or application in respect of the employee of a provision of a collective agreement or arbitral award.

86        The grievors submit that the TS collective agreement has been breached. The provision in question is clause 38.02, which sets out the agreement between the employer and the PSAC on how vacation leave shall be accumulated or earned for employees who form part of the TS bargaining unit.

87        Clause 38.02 starts off with the following sentence: “An employee shall earn vacation leave credits at the following rate for each calendar month during which the employee receives pay for at least seventy-five (75) hours …”. Seven sub-clauses follow that set out the particulars of the amount of leave earned based on the number of years of service the employee has accumulated.

88        The initial amount of leave that an employee who has no previous service or service of less than 8 years earns is 9.375 hours per month. In a year, that adds up to 112.5 hours or 15 7.5-hour workdays. On the month in which an employee reaches eight years of service, his or her vacation leave entitlement increases. Clauses 38.02 (b), (c), (d), (e), (f), and (g) set out the increase in vacation leave entitlement accumulation based on successive service milestones. In short, the more years of service an employee has, the more vacation leave credits he or she earns. An employee with 28 years or more of service earns vacation leave credits at twice the rate of an employee with 8 or less years of service.

89        The Information Bulletin states in part as follows:

…

The PSLRA specifically excludes members of the Royal Canadian Mounted Police (RCMP) from the definition of ‘employee’. Therefore, for vacation leave entitlement purposes, years of service as a member of the RCMP have historically not been recognized.

However, the RCMP is included in Schedule IV of the FAA and in the Gingras v. Canada (2 F.C. 734) [sic] decision, the Federal Court of Appeal identified a member of the RCMP to be a person employed in the public service, for the purposes of bilingual bonus. As a result, the Treasury Board Secretariat (TBS) has reviewed the current interpretation with respect to service as a member of the RCMP in the context of vacation leave entitlements.

Effective April 1, 2010, employees who have prior service as a member of the RCMP will have their years of service recognized as public service and will be credited with the appropriate vacation leave credits as per the relevant collective agreement. As such, eligible employees may receive additional vacation leave credits as of April 1, 2010.

…

90        When the grievors started with TC, they began earning vacation leave credits at the rate set out in clause 38.02(a) of the TS collective agreement — 9.375 hours per month. Upon receiving the Information Bulletin, they followed the process required of them and were granted, retroactive to April 2010, vacation leave in accordance with the appropriate sub-clause of clause 38.02, taking into account the years of service each had accumulated while with the RCMP.

91        Mr. Fields, having begun working with the RCMP in 1993, as at April 2010 fell under clause 38.02(c) and began to accumulate vacation leave credits at the rate of 13.75 hours per month. Mr. Tyefisher, having begun working with the RCMP in 1979, as at April 2010 fell under clause 38.02(g) and began to accumulate vacation leave credits at the rate of 18.75 hours per month. TC adjusted their leave credit banks retroactive to April 1, 2010, giving them additional leave credits, such that their respective leave credit banks would reflect the accumulation of leave credits as of April 1, 2010, at the rate of 13.75 hours per month for Mr. Fields and of 18.75 hours per month for Mr. Tyefisher, instead of the 9.375 hours per month they were both being credited.

92        On December 1, 2010, after being credited vacation leave based on the inclusion of their RCMP years of service, the employer advised the grievors that the fact that they were both paid severance pay when they left the RCMP could affect their qualification to be able to accrue vacation leave credits based on their combined years of service with TC and the RCMP.

93        On July 14, 2011, Mr. Fields was advised that his vacation leave credit accrual would be adjusted back to the original figures based on clause 38.02(a) of the TS collective agreement. On July 25, 2011, Mr. Tyefisher was advised of the same thing. Mr. Fields had vacation leave credits clawed back from his leave bank equal to the amount of the adjusted vacation leave credits he had received based on the adjustment the employer had made of changing his vacation leave accrual from 9.375 to 13.75 hours per month.

94        Mr. Tyefisher resigned from the public service in July 2012. Before that, he had used up all his vacation leave credits. Therefore, the employer could not recover the vacation leave credits that it believed were an overage. Instead, it deducted from his severance pay (upon his departure from TC) the equivalent dollar value of the adjusted vacation leave credits he had received based on the adjustment it had made of changing his vacation leave accrual from 9.375 to 18.75 hours per month.

95        The grievors argued that they were not employees when they were with the RCMP. If they were not employees, they could not have been part of the public service. Hence, the fact that they collected severance pay from the RCMP on leaving it could not be held against them by virtue of the Information Bulletin and clause 38.02(h) of the TS collective agreement.

96        According to clause 2.02 of the TS collective agreement, any expression not otherwise defined in the collective agreement shall, if defined in the Act, have the same meaning as given to it in the Act, and if a term is not defined in either the collective agreement or the Act, it shall have the meaning as defined in the Interpretation Act.

97        To earn leave credits under clause 38.02 of the TS collective agreement, a person must meet the definition of “employee” under both the TS collective agreement and the Act.

98        “Employee” is defined in the TS collective agreement as a person so defined in the Act and who is a member of the bargaining unit specified in article 9, which is the recognition clause. It states that the employer recognizes the PSAC as the exclusive bargaining agent for all employees of the employer described in the certificate issued by the PSSRB on June 10, 1999, covering employees of the TS group.

99        The version of the Act in force of the relevant time, defined “employee” in two different parts. The first is in the section titled “Interpretation” and states as follows:

employee, except in Part 2, means a person employed in the public service, other than

1. a person appointed by the Governor in Council under an Act of Parliament to a statutory position described in that Act;
2. a person locally engaged outside Canada;
3. a person not ordinarily required to work more than one third of the normal period for persons doing similar work;
4. a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that force under terms and conditions substantially the same as those of one of its members;
5. a person employed in the Canadian Security Intelligence Service who does not perform duties of a clerical or secretarial nature;
6. a person employed on a casual basis;
7. a person employed on a term basis, unless the term of employment is for a period of three months or more or the person has been so employed for a period of three months or more;
8. a person employed by the Board;
9. a person who occupies a managerial or confidential position; or
10. a person who is employed under a program designated by the employer as a student employment program.

100        Part 2 of the Act in effect at the relevant time, titled “Grievances”, and s. 206(1) defined “employee” as follows:

employee has the meaning that would be assigned by the definition employee in subsection 2(1) if that definition were read without reference to paragraphs (e) and (i) and without reference to the words “except in Part 2.”

101        The grievors were both members of the RCMP until they were appointed to their TC positions.

102        Appointment to the RCMP is done by virtue of the Royal Canadian Mounted Police Act (R.S.C., 1985, c. R-10; “the RCMP Act”).

103        Subsection 2(1) of the RCMP Act defines “member” as any person who has been appointed under s. 5 (the RCMP’s commissioner) or ss. 6(3) or (4) or 7(1) and is employed with the RCMP. “Officer” is defined under s. 2(1) as a member appointed under s. 5 (the RCMP’s commissioner) or ss. 6(3) or (4).

104        Subsection 6(3) of the RCMP Act addresses the Governor in Council’s appointment of persons to the rank of RCMP deputy commissioner. Subsection 6(4) addresses the Governor in Council’s appointment of persons to any other rank in the RCMP. Subsection 7(1) grants the RCMP’s commissioner the authority to appoint members of the RCMP, other than officers, by way of promotion to a higher rank, other than deputy commissioner, or to a higher level for which there is a vacancy.

105        Subsection 2(1) of the Act defines “employee” as a person employed in the public service but then sets out several exclusions of persons who are not employees for its purposes. One is for members of the RCMP. There is no question that before joining TC, both grievors were members of the RCMP as defined in s. 2(1)(d) of the Act. As such, by virtue of the exclusion in that paragraph, they were not considered employees as defined in the Act while they were with the RCMP. However, they argued that because they were not employees by definition under the Act when they were with the RCMP, they were not part of the public service. I do not accept this part of their argument.

106        While not defined in the TS collective agreement, “public service” is defined in the Act, in s. 2(1) as follows:

public service, except in Part 3, means the several positions in or under

(a) the departments named in Schedule I to the Financial Administration Act;

(b) the other portions of the federal public administration named in Schedule IV to that Act; and

(c) the separate agencies named in Schedule V to that Act.

107        The RCMP is named in Schedule IV to the FAA.

108        The term “position” is not defined in the TS collective agreement, the Act, the FAA, the Interpretation Act, or the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13). Positions are created, defined, and amended exclusively by the employer, whether that employer is the TB, or a separate agency, under Schedules I, IV and V of the FAA. Any given part of the employer may have several different sections or divisions that are organized in their own specific ways with many different positions responsible for carrying out different duties. The positions can be specific to a particular part of an organization or can be similar across a variety of different parts of the employer. However, positions are abstract creations that are filled by people to do the tasks that are set out for the position. They are filled by people who carry out the tasks for the employer in exchange for remuneration.

109        However, not every position that an employer might have created is filled by a person doing the work. Not every person who is doing the work falls within the definition of “employee” (within the meanings as defined under the Act and the TS collective agreement). Many people are employed and are paid to carry out tasks set out in positions within the different organizations named in Schedules I, IV, and V to the FAA who are indeterminate employees of the public service but who are not considered employees for the purpose of the Act. The fact that those persons do not fit the definition of “employee” in the Act does not mean they are not in the public service.

110        The difficulty is not with the definition of “employee” and with whether a member of the RCMP was an employee within the definition of the Act but with the definition of the term “public service” as it is referred to in the TS collective agreement. That term, as it appears in clause 38.02(h) of the TS collective agreement, places a limit on the amount of vacation leave credits that an employee can earn, as it states as follows:

For the purpose of this clause only, all service within the public service, whether continuous or discontinuous, shall count toward vacation leave except where a person who, on leaving the public service, takes or has taken severance pay. However, the above exception shall not apply to an employee who receives severance pay on layoff and is reappointed to the public service within one (1) year following the date of layoff.

111        The ASF shows that both grievors joined TC immediately after leaving the RCMP; Mr. Fields left the RCMP on Monday, January 3, 2005, and commenced with TC on Tuesday, January 4, 2005, and Mr. Tyefisher left the RCMP on Tuesday, February 28, 2006, and commenced with TC on Wednesday, March 1, 2006.

112        The employer argued that while RCMP members do not fall within the definition of “employee” in the Act (while they were members of the RCMP), they do fall within the definition of “public service” as it is defined as including members of the RCMP as set out in s. 2(1) of the Act. I agree and accept this argument.

113        The employer argued in the first instance that the Interpretation Bulletin did not alter the TS collective agreement. I agree and accept this argument. I believe that the Information Bulletin is nothing more than a distraction. It did not alter the collective agreement whatsoever. Given this finding, the estoppel arguments are not relevant.

114        Collective Agreement Arbitration in Canada, at Chapter 2, “Interpretation of the Collective Agreement”, Part 2, “Rules of Construction Used as Aids to Interpretation”, Section A, “Words to be Given Ordinary Meaning”, states at paragraph 2.10 as follows:

As a rule of construction, the clear words of a collective agreement are to be given their ordinary and plain meaning. Some of the cases refer to this as the “original grammatical meaning” or the “dictionary meaning”. The rule and its rationale have been expressed as follows:

… [W]e must ascertain the meaning of what is written into [a] clause and to give effect to the intention of the signatories to the Agreement as so expressed. If, on its face, the clause is logical and is unambiguous, we are required to apply its language to the apparent sense in which it is used notwithstanding that the result may be obnoxious to one side or the other. In those circumstances it would be wrong for us to guess that some effect other than that indicated by the language therein contained was contemplated or to add words to accomplish a different result.

115        Mr. Snyder, still at Chapter 2, Part 2, Section D, “Each Word Should Be Given some Meaning: The Rule Against Redundancy”, states at paragraph 2.17 as follows:

This rule has been expressed as follows:

It is a recognized canon of construction that in interpreting documents they should be construed so as to give effect to every word, and a word should not be disregarded if some reasonable meaning can be given to it. It has further been held that it is a good general rule that one who reads a legal document, whether public or private, should not be prompt to ascribe ­– should not without necessity or some sound reason impute – to its language tautology or superfluity.

116        Finally, Mr. Snyder, at Chapter 2, Part 4, “Use of Statutes in the Interpretation and Application of the Collective Agreement”, Section A, “Legislation May Be Used As An Aid To Interpretation”, states at paragraph 2.40 as follows:

It has long been accepted that legislation can properly be used by arbitrators as an aid to interpretation of collective agreements. As a general rule, the collective agreement should be interpreted so as not to conflict with relevant statutes, since there is a presumption that the parties did not intend to act contrary to law.

117        The first part of clause 38.02(h) states that “… all service within the public service, whether continuous or discontinuous, shall count toward vacation leave . . .”. If the clause ended after the word “leave”, quite simply, by virtue of being in the RCMP (and therefore in the public service), the grievors’ service during their employment with the RCMP would count towards their leave entitlement or accumulation in clauses 38.02(a) through (g). However, the clause does not end there. Instead, it continues with the word “except”, which was used to connect the first part of the clause to the second part, where it goes on to state, “… except where a person who, on leaving the public service, takes or has taken severance pay.”

118        “Except” is defined in the Canadian Oxford Dictionary, Second Edition, as: “to exclude from a general statement, condition, etc.”

119        In the context of clause 38.02(h), the word “except” signifies that all continuous or discontinuous service shall count towards the calculation of the accumulation of leave credits, unless the event identified following the word “except” has occurred, which is when the person, who would otherwise be entitled to use all his or her public service to calculate his or her leave credit entitlement, “… on leaving the public service, takes or has taken severance pay”[emphasis added].

120        The argument advanced by the employer was that both grievors took their severance pay. They testified that they were required to take it. The employer further submitted that because they did so, therefore, they do not qualify for the increase in vacation leave credits as set out in the Information Bulletin, because of clause 38.02(h). As such, the credits were improperly advanced to them and hence were properly recovered from them.

121        I would agree with the employer but for the fact that its position ignores the other words in clause 38.02(h) that follow the word “except”: “on leaving the public service” [emphasis added]. The grievors never left the public service. As set out in the ASF, each left one public service position (in the RCMP) on one day, only to start in a new public service position (at TC) on the next day. Mr. Fields left the RCMP on Monday, January 3, 2005, and started at TC on Tuesday, January 4, 2005, and Mr. Tyefisher left the RCMP on Tuesday, February 28, 2006, and started at TC on Wednesday, March 1, 2006.

122        As set out in Collective Agreement Arbitration in Canada, at Chapter 2, “Interpretation of the Collective Agreement”, Part 2, Section A, “Words to be Given Ordinary Meaning”, and Section D, “Each Word Should Be Given some Meaning: The Rule Against Redundancy”, the words “on leaving the public service”, which follow the word “except” in clause 38.02(h) of the TS collective agreement, not only must be given meaning, as they are not redundant, but also should be given their ordinary meaning. The only words that would not be given their ordinary meaning would be the term “public service”, as the TS collective agreement has provided a definition for it by virtue of clause 2.02, which states that except as otherwise provided in the TS collective agreement, expressions used in it, if they are defined in the Act, have the same meaning as given to them in the Act. “Public service” is defined in s. 2(1)(b) of the Act and includes service in those parts of the federal public administration named in Schedule IV to the FAA. The RCMP is named there. Its members are part of the federal public service.

123        If the grievors had both left the public service and collected severance pay and then rejoined the public service, and clause 38.02(h) were contained in the collective agreement governing their terms and conditions of employment, I would agree with the employer’s position and agree that the grievors or persons like them would be destined to accumulate leave credits as if they had no service in the public service. However, that is not what happened. While both grievors did indeed take their severance pay, they never left the public service; they merely left the RCMP.

124        Ms. Nadon’s evidence was not helpful. She merely testified as to what some unknown person somewhere at the TBS had told her with respect to the interpretation of the Information Bulletin and the vacation leave provisions of several collective agreements. While hearsay can be admitted and accepted into evidence, and generally, in hearings such as these before administrative tribunals, the rules of evidence may not be enforced as rigorously as in a court of superior jurisdiction, the evidence she provided was information from some unknown person or persons who may or may not have expertise in the area at issue.

125        The grievors should have been accumulating and should have been credited vacation leave credits in accordance with clause 38.02 of the TS collective agreement based on their years of service in the public service, which included their years as RCMP members. For Mr. Fields, that dates to 1993, and for Mr. Tyefisher, to 1979.

126        The employer granted leave credits to both grievors in accordance with clause 38.02 of the TS collective agreement, retroactive to April 1, 2010.

127        In July 2011, by adjusting Mr. Fields’ leave credits and by clawing back leave credits that he had rightfully earned, the employer breached the TS collective agreement, and I so declare.

128        In July 2011, by adjusting Mr. Tyefisher’s leave credits and by deducting monies equivalent to the value of those leave credits from his severance pay, the employer breached the TS collective agreement, and I so declare.

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

V. Order

130        The grievances are allowed.

131        I declare that the employer is in breach of clause 38.02 of the TS collective agreement with respect to its calculation of the grievors’ vacation leave credits as at April 1, 2010.

132        I declare that the employer breached the TS collective agreement by clawing back leave credits that Mr. Fields had rightfully earned.

133        I declare that the employer breached the TS collective agreement by deducting monies equivalent to wrongfully adjusted leave credits from Mr. Tyefisher’s severance pay.

134        The employer shall within 30 days of the date of this decision calculate, from the starting point of April 1, 2010, the amount of vacation leave for Mr. Fields and Mr. Tyefisher based on their years of service in the public service, which includes their years with the RCMP as well as TC, and shall credit them the difference between what they received in vacation leave credits and what they should have received had the employer not breached the collective agreement. In Mr. Tyefisher’s case the employer shall pay to him the cash value of the leave credits, at his rate of pay as of the date of his retirement.

135        I shall remain seized of this matter for a period of 90 days in the event that there are issues that arise out of the implementation of my order.

August 19, 2016.