FPSLREB Decisions
Decision Information
Acting pay - the grievor was employed at the CR-3 classification group and level - on January 18, 1999, she accepted a temporary assignment at another work location - subsequently, the grievor claimed she was entitled to acting pay at the CR-4 group and level because she was now performing duties at that level - her supervisor advised her on June 28, 1999, that the employer was not requiring her to perform duties at the CR-4 group and level - the adjudicator found that the grievor was entitled to acting pay at the CR-4 group and level for the period from January 18, 1999, until June 28, 1999, as she was, in fact, substantially performing duties at the higher level during that time - thereafter, she was not entitled to acting pay as any duties which she may have performed at the CR-4 group and level were not required of her by the employer. Grievance allowed in part. Case cited:Vanier (166-2-23562).
Decision Content
Public Service Staff Relations Act
- Date: 2003-01-03
- File: 166-34-31106
- Citation: 2003 PSSRB 1
Before the Public Service Staff Relations Board
BETWEEN
KAREN SPARLING
Grievor
and
CANADA CUSTOMS AND REVENUE AGENCY
Employer
Before: Ken Norman, Board Member
For the Grievor: Andrea Dean, Counsel, Public Service Alliance of Canada
For the Employer: Harvey Newman, Senior Counsel, Treasury Board
Heard at Vancouver, British Columbia,
November 28, 2001
Argument for the grievor
[16] Andrea Dean's central argument for the grievance was that, by all accounts, Karen Sparling had effectively functioned, for several months, as an integral part of a transition team at the Surrey Campus whose organization chart contained four empty CR-04 positions and not even one CR-03 position. Ms. Sparling had acted as a CR-04 in the past. The work that she had performed at the Surrey Campus was beyond what she had done as a CR-03. Further, she had seen a number of job postings for CR-04 Facilities Management Clerks and Accommodation, Telecommunication Clerks that contained job descriptions and duties similar to the work that she was doing at the Surrey Campus. Ms. Dean also submitted that the employer's assessment process was flawed because the grievor was not interviewed by Ms. Makortoff. In sum, the employer should not be allowed to solicit a CR-03 clerk to "volunteer" for a temporary assignment beyond her level and not compensate the person with acting pay at the CR-04 level. [17] In support of these submissions, on the question of what it is to "substantially perform the duties of a higher classification", Ms. Dean cited Macri (Board file 166-2-15319) (Young) and my decision in Shanley (Board file 166-2-3044), as approved in Vanier (Board file 166-2-23562) (Simpson).Argument for the employer
[18] Harvey Newman, for the employer, took no issue with these cases. However, the facts of this case differ. In Macri, it was common ground that the grievor had performed duties beyond her CR-3 level; the issue was whether the proper level was AS-1 or AS-4. In Shanley, I concluded that the grievor had "stood in the shoes" of a person at a higher classification level. In Vanier, the grievor's uncontradicted evidence was that he had been assigned to work with a team at a higher classification level and had participated in all of the team's work activities. The question in this case is whether the grievor has shown, on a balance of probabilities, that she was required to substantially perform the duties of a higher position. [19] Mr. Newman conceded that, in all of the circumstances, he could understand why Karen Sparling felt entitled to acting pay at a higher level. There can be little doubt but that her new responsibilities at the Surrey Campus involved more work than she had been performing in the mail room at the downtown Vancouver Office. And, it is clear from the evidence that management appreciated her extra efforts. However, both when the grievor raised her concerns with Brenda Hermann on June 17 and June 28 and again when the grievor put forward her formal request for acting pay on August 25, 1999, management acted promptly and properly to investigate and assess the situation. First, Ms. Hermann made it clear to Ms. Sparling on June 28 that she was not being required to perform CR-04 duties. Then, Ms. Makortoff determined that, though the grievor was performing additional duties that justified additional points in rating for Contacts, the work still fit into the CR-03 band.Reasons for decision
[20] On the face of the facts summarized by Andrea Dean, at paragraph [16] of this decision, there is something suspect about what actually happened in the months following Karen Sparling's move, as a CR-03, to the Surrey Campus on January 18, 1999. That she believed she was substantially performing functions at a level higher than that of a CR-03 comes as no surprise given the fact that the applicable organizational chart at the Surrey Campus contained no CR-03 position but contained four vacant CR-04 positions. In terms of the initial months, I did not hear evidence from Bill Dixon. Nor did I hear testimony from Elma Philps. With regard to Mr. Dixon's role, all that I did hear was evidence from Karen Sparling that when she first broached the matter of her additional duties with Mr. Dixon, he admonished her "Don't go there". Without more by way of explanatory evidence from Mr. Dixon, there is ambiguity in this direction. It is consistent both with the view clearly taken subsequently by Brenda Hermann and with the position criticized by Ms. Dean in summation. I take her point that the employer should not be permitted to solicit a person to "volunteer" for what amounts to an acting assignment but with no acting pay attached to it. As for Elma Philps, I do have before me the Written Performance Review that she illegally executed as Team Leader. Under the heading Team Leader's Comments (optional) Ms. Philps sings the grievor's praises noting that "you became an integral part of this team and proved to both the team and our internal client base that you are more than capable and can be counted on to follow through with requests and resolve problems quickly and efficiently." In this light, I take Ms. Dean's point that this case looks quite like Vanier. [21] However, once Brenda Hermann makes it plain to the grievor, on June 28, 1999, that she was not being required to do anything beyond her CR-03 level, the situation changes. From that point on, whatever the daily practices were between Ms. Philps and Ms. Sparling, it is clear that Ms. Sparling was not being "required" by her employer to substantially perform the duties of a higher classification level in an acting capacity. This is made explicit in the list of duties proposed by Ms. Hermann in her meeting with the grievor on August 10, 1999. For my part, suffice it to say that it is too bad that Karen Sparling was not prepared to take "no" for an answer. Elma Philps paid a price for supporting this intransigence. I can understand why Ms. Sparling felt frustrated by what she was advised. As she put it in cross-examination, Ms. Hermann's instruction not to do any more than CR-03 duties "would leave me with very little to do". However, Ms. Hermann, as the supervisor, must be respected as the proper judge of that question. I take Mr. Newman's distinguishing points about the cases submitted by Ms. Dean with regard to events subsequent to June 28, 1999. In those cases, the employer made no clear statement to the grievors as to what was and what was not being required of them. Article 64.07 is not just about whether an employee was substantially performing the duties of a higher classification level; it stipulates first that such activity must have been "required by the Employer" in order for there to exist an entitlement to acting pay. [22] For the reasons that I have provided, this grievance is sustained in part. I declare that Karen Sparling is entitled to acting pay at the CR-04 level from January 18, 1999, to June 28, 1999. I am persuaded by the evidence that, during this period of time, she substantially performed the duties of a CR-04, as a Telecommunications Clerk, within the applicable organizational chart. She worked effectively with Elma Philps, AS-01, as an integral part of the team. All that I have by way of contradiction on the point as to whether the employer required this work to be done is the grievor's testimony concerning Bill Dixon's ambiguous "Don't go there" admonition and Brenda Hermann's subsequent assertion, on Mr. Dixon's behalf that he had never assigned CR-04 duties to the grievor. In effect, the story from January 18, 1999, to June 28, 1999, seems very close indeed to that in Vanier. However, that story changes as and from June 28, 1999, when Brenda Hermann firmly advises Karen Sparling that she is not being "required" to perform CR-04 duties and that "the bottom line would be that she would have choices to make whether she stayed or not". Thereafter, though, as indicated by Elma Philps' Written Performance Review, apparently Karen Sparling continued to function as an integral part of the team at a CR-04 level, it was by her choice. Such activity was not being "required" by the employer. This position was reinforced by Ms. Hermann's investigation and subsequent meeting with the grievor on August 10, 1999, and by Ms. Makortoff's classification analysis. For the purposes of this conclusion, nothing turns on the process argument that Ms. Makortoff conducted her assessment without the benefit of an interview with Ms. Sparling. I must say that, in light of the extraordinary illicit step taken by the grievor and Elma Philps in drafting the so-called Written Performance Review for consideration by Ms. Makortoff, it is perhaps just as well that no such interview process was engaged in by Ms. Makortoff. After all, she is a Classification and Organizational Consultant, not an arbitrator. [23] For all these reasons, this grievance is allowed in part. I will remain seized of this decision in order to resolve any conflicts that may arise between the parties as to the amount of acting pay due to the Karen Sparling.
Ken Norman
Board Member