FPSLREB Decisions

REASONS FOR DECISION

I. Policy grievance referred to adjudication

1        On March 28, 2014, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the bargaining agent”) filed a policy grievance challenging the Treasury Board’s (“the employer”) decision to prorate the severance pay of Correctional Service of Canada (CSC) employees who worked on a casual basis during their period of employment with the CSC. The bargaining agent alleges that that employer practice violates the collective agreement between the employer and the bargaining agent with respect to the Correctional Services Group bargaining unit that expired on May 31, 2014 (“the collective agreement”).

2        The collective agreement defines an employee as “... a person so defined in the Public Service Labour Relations Act ...” (S.C. 2003, c. 22, s. 2; “the Act”). As for the Act, it defines a public servant, i.e., an employee, as “... a person employed in the public service, other than a person employed on a casual basis ...”. Given the clear language of that definition, the parties agree that a casual worker is not an employee within the meaning of the Act or the collective agreement.

3        In its response to the grievance, the employer stated that to ensure that casual workers are treated the same as part-time employees with respect to severance pay, continuous employment for periods of part-time employment worked by casual workers is calculated the same way as continuous employment for part-time employees.

4        Having been unsuccessful in the policy grievance procedure, the bargaining agent referred the grievance to adjudication on June 5, 2014. I was appointed to hear and decide the issue as a panel of the Public Service Labour Relations and Employment Board (“the Board”).

5        At the hearing, the employer withdrew an earlier objection in which it maintained that the Board did not have jurisdiction to hear and decide this issue. Despite the employer’s position, the fact that the parties agree that a casual worker is not an employee within the meaning of the Act or the collective agreement raises a question of jurisdiction under s. 220 of the Act,and their consent in that sense is insufficient to grant the Board jurisdiction (see Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27 (C.A.). Therefore, I will address the jurisdiction matter in my reasons.

II. Summary of the evidence

6        The bargaining agent called the following witnesses: Stéphane Dicaire, the local union president at La Macaza Institution; and Mario Gariépy, a correctional officer from that same institution. The employer called Isabelle Legault to testify; she is the compensation manager for the CSC’s Quebec Region.

7        Mr. Dicaire’s testimony was both brief and devoid of any real purpose. His role was limited to presenting a list of 107 grievances that allegedly were about the prorated calculation of severance pay for the continuous employment of some CSC casual workers. However, he was unable to confirm the source of the document or to clarify whether all the grievances in the list dealt with the prorating issue and whether they were active.

8        Mr. Gariépy pointed out that he had been working for the CSC since 1995. He confirmed that during the first three (3) years, he had been hired as a casual worker. He explained that casual workers are called on to work as needed and that they cannot work more than a specific number of days per year. Once the maximum number of workdays has been reached, the employment contract is terminated, and as a result, the worker in question must find another job or apply for employment insurance, which he did in the past.

9        Mr. Gariépy confirmed that his grievance was in the list of 107 grievances. He explained that that grievance was filed to challenge the CSC’s decision not to include the three years that he had worked as a casual worker when it calculated his severance pay. At that time, he had been working for the CSC for 18 years, but as he remembered it, he received only the equivalent of approximately 15 years of service. Mr. Gariépy said that when it calculated his severance pay, the employer did not appear to have taken into account his three years as a casual worker. In cross-examination, Mr. Gariépy was unable to confirm the exact number of weeks of salary that he had received as severance pay or if part of the calculation in question had been done a prorated basis. He did not submit any evidence about his severance pay calculation to clarify that point.

10        Ms. Legault explained that when the continuous period of employment covered by severance pay consists of part- and full-time periods of employment or of several periods of part-time employment, which, according to her, was so for Mr. Gariépy, severance pay is calculated in accordance with clause 35.17 of the collective agreement, which deals with severance pay for part-time employees, rather than with clause 33.04 of the collective agreement, which deals with severance pay for full-time employees. The clauses in question stipulate the following:

33.04 Subject to clause 33.02 above, indeterminate employees on November 5, 2013 shall be entitled to severance termination benefits equal to one (1) week’s pay for each complete year of continuous employment and, in the case of a partial year of continuous employment, one (1) week’s pay multiplied by the number of days of continuous employment divided by three hundred and sixty-five (365), to a maximum of thirty (30) weeks.

...

35.17 Notwithstanding the provisions of Article 33, Severance Pay, of this agreement, where the period of continuous employment in respect of which severance benefit is to be paid consists of both full- and part-time employment or varying levels of part-time employment, the benefit shall be calculated as follows: the period of continuous employment eligible for severance pay shall be established and the part-time portions shall be consolidated to equivalent full-time. The equivalent full-time period in years shall be multiplied by the full-time weekly pay rate for the appropriate group and level to produce the severance pay benefit.

11        Ms. Legault added that clause 35.17 provides for a prorated formula for periods of part-time employment and that that formula was applied to casual workers, since they do not work full-time and are limited to periods of part-time employment followed by breaks in employment. According to her, the employer used that approach even though casual workers are not deemed employees or public servants and consequently are not specifically covered by the collective agreement.

12        Ms. Legault also confirmed that several collective agreement provisions were applied to casual workers, notably to those on annual and sick leave. She reiterated that the employer used that approach even though casual workers were not employees. She explained that the CSC adopted that approach to ensure that casual workers were treated the same way as part-time employees, who are specifically covered by the collective agreement and are employees.

13        In cross-examination, Ms. Legault specified that casual workers do not have fixed work schedules; their work hours vary according to need, and they are limited to working a maximum number of days per year, after which they receive an employment severance slip, which breaks the employment contract and ends their continuing employment with the CSC. She also acknowledged that at the time of her testimony, the CSC did not have many part-time employees in its employment in the Quebec Region.

III. Summary of the arguments

A. For the bargaining agent

14        According to the bargaining agent, although the casual workers covered by this policy grievance were not employees, they were employees with the CSC when the severance pay was calculated and when the grievance was filed.

15        The bargaining agent maintains that the collective agreement does not define the expression “continuous employment” that is found in, among others, clause 33.04 of the collective agreement, and that Broekaert v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 90, and Clough v. Canada Revenue Agency, 2015 PSLREB 48, as well as articles 19 and 20 of the Treasury Board’s Directive on Terms and Conditions of Employment, which came into force on April 1, 2014, had to be relied on to provide an appropriate and logical meaning to this expression in the circumstances. Article 19 deals with certain conditions of employment that apply to casual workers and to term employees of less than three months. Article 20 deals with continuous employment.

16        According to the bargaining agent, the principles set out in Broekaert and Clough, when considered in conjunction with article 20 of the Treasury Board’s Directive on Terms and Conditions of Employment, suggest that clause 33.04 of the collective agreement should prevail over clause 35.17 for the purposes of calculating the severance pay for an employee who worked with the CSC in the past on a casual basis.

17        The bargaining agent claims that years of service as a casual worker must count as full years of continuous employment, same as for a full-time employee. In addition, it points out that under clause 33.04 of the collective agreement, employees are entitled to severance termination benefits equal to one (1) week’s pay for each complete year of continuous employment, including for each year during which they are casual workers.

18        As corrective measures, the bargaining agent requests that the Board issue a statement declaring that the employer violated the collective agreement by prorating the severance pay of employees for when they were casual workers. It also requests an order directing the employer to end that practice.

B. For the employer

19        According to the employer, although article 19 of the Treasury Board’s Directive on Terms and Conditions of Employment seems to imply that certain collective agreement provisions apply to casual workers, the fact remains that the agreement is silent with respect to how their severance pay is to be calculated.

20        The employer maintains that the severance pay of a CSC employee may be calculated only in accordance with clauses 33.04 and 35.17 of the collective agreement. According to the employer, it is appropriate to proceed under clause 35.17, which deals with the situation of part-time employees, since in both cases, neither casual workers nor part-time employees are called to work a normal schedule, such as that provided for under article 21 of the collective agreement. Part-time employees’ work hours are less than if they worked the normal schedule provided under article 21. Casual workers’ schedules are not fixed; their hours vary based on need, and they can work only a certain number of days per year.

21        According to the employer, it is fair to treat casual workers the same way as part-time employees. In its view, calculating the severance pay of a casual worker in accordance with clause 33.04 of the collective agreement and that of a part-time employee in accordance with clause 35.17 of the same collective agreement (prorated) for the same period would result in an unjustifiable inequality.

IV. Reasons

22        In principle, the policy grievance, as written, raises a question of jurisdiction since it refers to former or current casual workers. I believe that the Board does not have the jurisdiction to decide a dispute involving a person who, when a grievance is filed, is a casual worker. However, the Board has full jurisdiction to decide a dispute involving the periods of casual employment of a person who, when the grievance was filed, was an employee under s. 2 of the Act, as was Mr. Gariépy.

23        I reviewed and examined the case law that the bargaining agent cited in support of its arguments. In my opinion, the facts and issues outlined in those decisions are not sufficiently similar to those in this grievance, and they can hardly guide me in my decision. In addition, I am not bound by prior grievance adjudication decisions, including those the employer cited in its book of jurisprudence. Consequently, I do not see the need to refer to those decisions any further in my reasons.

24        In my view, the bargaining agent’s argument that the expression “continuous employment” is not defined in the collective agreement must be clarified to some extent. Clause 2.01 of the collective agreement specifically states that that expression shall have the meaning attributed to it in the employer’s Directive on Terms and Conditions of Employment on the date the collective agreement was signed, i.e., November 5, 2013, which was well before the Treasury Board’s Directive on Terms and Conditions of Employment that the bargaining agent relied on was in force, i.e., April 1, 2014. Therefore, I find it difficult to consider the bargaining agent’s argument on employees’ continuous employment since it is based on a directive that was not in force at the relevant time, and the directive that is relevant for the purposes of this dispute was never mentioned or referred to at the hearing. It should be noted that the former directive did not specifically address continuous employment and that the one from 2014 specifically sets out certain periods that may count as continuous employment.

25        In any event, I disagree with the bargaining agent’s argument that a careful reading of article 20 of the Treasury Board’s Directive on Terms and Conditions of Employment that was in force on April 1, 2014, suggests that clause 33.04 of the collective agreement should prevail over clause 35.17 of the same agreement for calculating the severance pay of an employee who was a casual worker in the past. That is not what that provision provides. In my view, both clauses 35.17 and 33.04 can be used for these purposes. It should also be noted that the directive on which the bargaining agent bases its arguments was not in force when it became aware of how severance pay was being calculated for employees with periods of casual employment or even when the policy grievance was filed, i.e., March 28, 2014.

26        Even if I accepted that the directive in force on April 1, 2014, stipulated that the collective agreement applies to employees with periods of casual employment, the fact remains that the collective agreement does not contain any provision that specifically deals with calculating severance pay for such employees. Consequently, the only two provisions that deal with that calculation, i.e., clauses 33.04 and 35.17 of the collective agreement, must be relied on. They are repeated here for ease of reference.

33.04 Subject to clause 33.02 above, indeterminate employees on November 5, 2013 shall be entitled to severance termination benefits equal to one (1) week’s pay for each complete year of continuous employment and, in the case of a partial year of continuous employment, one (1) week’s pay multiplied by the number of days of continuous employment divided by three hundred and sixty-five (365), to a maximum of thirty (30) weeks.

...

35.17 Notwithstanding the provisions of Article 33, Severance Pay, of this agreement, where the period of continuous employment in respect of which severance benefit is to be paid consists of both full- and part-time employment or varying levels of part-time employment, the benefit shall be calculated as follows: the period of continuous employment eligible for severance pay shall be established and the part-time portions shall be consolidated to equivalent full-time. The equivalent full-time period in years shall be multiplied by the full-time weekly pay rate for the appropriate group and level to produce the severance pay benefit.

27        The issue I must decide is whether the employer violated the collective agreement by applying clause 35.17 of the agreement when calculating the severance pay of CSC employees who had been casual workers in the past. In my view, the answer is in the negative. The parties are the authors of the collective agreement. They agreed that there was a need for a provision on calculating the severance pay of full-time employees (clause 33.04 of the collective agreement) and for one on calculating the severance pay of employees with mixed schedules (clause 35.07 of the collective agreement). However, they did not agree on a provision for calculating that pay for employees with periods of casual employment. Therefore, the employer has only two options under the collective agreement: proceeding under clause 33.04 or under clause 35.17.

28        In my view, its decision to proceed under clause 35.17 of the collective agreement to calculate the severance pay of employees with periods of casual employment for a certain number of years is reasonable, logical, and fair. First, the fact cannot be avoided that clause 33.04 of the collective agreement deals with the question of the continuous employment of an indeterminate employee (full-time). And Ms. Legault’s uncontested evidence demonstrated that whenever casual workers reach their maximum number of annual workdays, they receive a record of employment, which has the effect of terminating the employment relationship and thus making those employees eligible for employment insurance benefits, which Mr. Gariépy acknowledged receiving in the past. Claiming that such a scenario properly lends itself to the continuous employment of a full-time permanent employee is quite simply insincere. A casual worker’s situation differs completely from that of a full-time permanent employee.

29        Second, the scenario the parties agreed to for employees with mixed schedules lends itself particularly well to casual workers. As Ms. Legault submitted, casual workers do not have fixed schedules; their work hours vary depending on need, and they can work only a certain number of days per year. Furthermore, I agree with the employer’s argument that it would be unjust and unfair to apply clause 33.04 of the collective agreement to an employee who was a casual worker in the past and to apply clause 35.17 of the collective agreement to an employee who worked part-time during the same period. Whether the CSC currently has any part-time employees is irrelevant.

30        In my view, there is no legal basis or link to the collective agreement that justifies that the periods during which a person worked for the CSC as a casual worker can be considered complete years of continuous employment in the same way as a full-time employee or that that the severance pay of such a person must be calculated based on clause 33.04 of the collective agreement.

31        For all of the above reasons, the Board makes the following order:

V. Order

32        The grievance is dismissed.

April 13, 2017.

PSLREB Translation