FPSLREB Decisions

[1]      Dr. Mary Chadwick is a veterinarian at the St. Thomas, Ontario, office of the Canadian Food Inspection Agency (CFIA). She is classified at the VM-01 level. In a grievance dated August 20, 2001, Dr. Chadwick grieved that she had been "substantially performing the duties of higher classification level, VM02, from March 31, 1998 to July 30, 2001.." The final level response denied the grievance on the basis that it was redundant:

..I believe that the issue raised in this grievance is the same as your [other] grievance which alleged that you had not been provided with a complete and current statement of duties in violation of Article E.1.01.

Preliminary Matters

[2]      The grievor's representative, Steve Eadie, requested an order excluding witnesses. Counsel for the employer, Robert Jaworski, objected to this request on the basis that credibility was not at issue, and therefore exclusion of witnesses was not required. He expressed the view that the Board was generally too quick to grant requests for exclusion of witnesses. Mr. Eadie stated that issues of credibility would arise relating to the performance of duties.

[3]      Adjudicators appointed under the Public Service Staff Relations Act (PSSRA) routinely grant orders for the exclusion of witnesses. As stated by Messrs. Mitchnick and Etherington in Leading Cases on Labour Arbitration, at 5-5:

Like the courts, arbitrators will typically grant an order for the exclusion of witnesses at the request of either party. The purpose of an exclusion order is to ensure that the witness' testimony is not tainted or influenced by hearing the evidence of prior witnesses..

[4]      In response to a similar objection in an acting pay grievance, the adjudicator in Afzal (Board file 166-2-19422) concluded as follows:

. . .

It must be realized that the Public Service Staff Relations Board is a quasi-judicial statutory tribunal responsible for the administration of the system of collective bargaining and grievance adjudication established under the Public Service Staff Relations Act. As such, rules of evidence and procedure do not find as strict an application as before courts of law but the adjudicator has a duty to respect at all times the principles of natural justice. In the instant case, the burden of proof rested with the grievor who would give evidence first and remain in the hearing room. I did not consider it proper for the employer's "technical representative" to remain and hear the grievor's evidence especially when this representative. was the employer's main witness For me to rule otherwise would have been unfair to the grievor and, in effect, a denial of natural justice..

[5]      In this case, since one party alleges that issues of credibility will arise in the course of the hearing, it is appropriate to grant an exclusion order.

[6]      The employer raised preliminary objections on timeliness, on the jurisdiction of the adjudicator and on the scope of the evidence to be heard. I indicated to the parties that I would hear arguments on these objections and reserve on ruling on the objections and proceed to the merits of the grievance.

[7]      Counsel for the employer first raised the issue of timeliness in a letter to the Board dated September 12, 2002. Notwithstanding that the employer did not raise timeliness during the grievance process, it was the position of the employer that the time limits for filing a grievance were a binding term of the collective agreement and that the lapse of time was inherently prejudicial to the employer. It was the further position of the employer that in order for there to be a waiver of the time limits, the waiver needed to be "overt or express". The employer representative referred me to Stubbe (Board file 149-2-114) and Bentley (Board file 149-2-168).

[8]      The representative for the grievor argued that the grievance was a continuing one and that the employer had tacitly accepted the grievance, thereby waiving its right to object to timeliness. The grievor's representative referred me to two cases with regard to timeliness: Guillemette (Board file 166-2-23827) and Sauvé (Board file 166-2-26974).

[9]      The jurisprudence on waiver of time limits is clear. There does not need to be an express or overt waiver - mere acquiescence will be sufficient (see Mitchnick and Etherington (supra), at 2.4.2, page 2-35). In this case, the employer did not raise the issue of timeliness until after the grievance had been referred to adjudication. I therefore find that the grievance is timely.

[10]      The employer also objected to the jurisdiction of the adjudicator on the basis that this was in reality a classification grievance and not an acting pay grievance. The grievor's representative argued that this was an issue of remuneration, not classification, and constituted a violation of the collective agreement and was therefore within the adjudicator's jurisdiction. Since a ruling on jurisdiction depends on a close review of the evidence, I will leave the discussion on jurisdiction until after the review of the evidence.

[11]      Mr. Jaworski also submitted that Dr. Chadwick's grievance could only concern the salary for the period of 25 days preceding the filing of the grievance and relied on Canada (National Film Board) v. Coallier [1983] F.C.J. No. 813, and clause D6.09 of the collective agreement to support his position. The employer's position did not solely relate to the appropriate remedy, however. It was the employer's position that the Coallier decision also limited the evidence that could be heard to matters that occurred during the 25 days preceding the filing of the grievance.

[12]      The remedy aspects of this argument are best left to final argument. In terms of the scope of evidence to be presented, Coallier cannot support the narrow view that only evidence of activities in the 25 days prior to the filing of a grievance can be adduced. An employee in his or her substantive position is not always expected to perform all the duties contained in a job description - even important ones - over a 25-day period. To limit the evidence on duties performed to this relatively short period is not fair to those employees who may be expected to perform all the duties of a higher classification. It is therefore important to hear evidence about all aspects of the work being performed.

[13]      There were three witnesses: the grievor testified and a CFIA client testified on behalf of the grievor; Dr. Janusz Tarkowski testified on behalf of the employer.

Evidence

[14]      Dr. Chadwick joined Agriculture Canada (now the Canadian Food Inspection Agency) as a veterinarian in October of 1986 working at the St. Thomas, Ontario, office until the office closed on September 30, 2001. The St. Thomas office served Elgin County. Dr. Chadwick is now physically located in the London office, although she is still responsible for Elgin County.

[15]      Up until March 31, 1998, there were four employees at the St. Thomas office. Dr. Ted Gough was the District Veterinarian, classified at the VM-02 level. Dr. Chadwick, as a VM-01 veterinarian, reported to Dr. Gough. There was also a primary products inspector, Bill Walker, and a clerk, Elaine Moyse.

[16]      During the 12 years that Dr. Chadwick worked under Dr. Gough's supervision, the grievor testified that he was "totally in charge" of the office. He organized day-to-day activities, gave directions and was involved in all difficult decisions. He checked Dr. Chadwick's work, reviewed reports and always made comments on any written reports.

[17]      On March 31, 1998, Dr. Gough took a "buy-out", leaving just three employees at the St. Thomas office. Dr. Chadwick was left to run the day-to-day operation of the St. Thomas office, including assigning Mr. Walker, the primary products inspector, to duties and generally organizing the priorities of the office.

[18]      Dr. Bruce Green, based in the London office, took over responsibility as District Veterinarian for Elgin County, and became Dr. Chadwick's immediate supervisor (Organization Chart, Exhibit G-4). It was the grievor's view that it was physically impossible for Dr. Green to supervise both the St. Thomas and the London offices. According to the grievor, she did discuss this with Dr. Green and he agreed that he could not be in two places at once. She testified that he did not really give her any direction, but expected her to do whatever was necessary to make the office work. In cross-examination, she stated that there was no formal acknowledgement of her acting status, and she was not expressly directed to do VM-02 duties.

[19]      Dr. Green did not testify at the hearing. E-mail correspondence dated August 30, 2001 and October 30, 2001 from Dr. Bruce Green to Dr. Janusz Tarkowski, responding to questions about the duties of Dr. Chadwick, was introduced by the grievor (Exhibits G-21 and G-22). Normally, such hearsay evidence would be of limited value since it was prepared after the filing of the grievance and could be prejudicial to the grievor. However, since the grievor has introduced the evidence and the employer did not object to its introduction, it is both relevant and admissible.

[20]      In an e-mail to Dr. Tarkowski, the Inspection Manager for the Southwest Region, dated August 30, 2001 (Exhibit G-21), Dr. Green stated:

. . .

Yes, I am in the London office most of the time ie>90%. I can't be in two places at the same time, therefore a lot of the daily responsibilities do rest with Mary [Dr. Chadwick], eg what gets done when and where, priorities etc. On an infrequent basis Mary consults with me about unusual situations, events, etc but probably no more than a neighbouring VM 2 might seek my opinion. I sign leave and authorize bill payments. Their budget is included with the London budget which I oversee, and RMS data is forwarded to me for verification.

There is not enough work in St. Thomas for two Vets, and I think we all would agree on that fact. That is likely why Dr. Gough was allowed the Departure Incentive.

. . .

[21]      The position description for the District Veterinarian (VM-02) has many similarities with the Veterinarian (VM-01) position description. In fact, there is a great deal of overlap between the two position descriptions.

[22]      The summary for the District Veterinarian (VM-02) position is as follows:

Reporting to a Regional Veterinary Supervisor, manages the delivery of the Animal Health Program in the district; participates in the administration of the Animal Health Program resources; provides a primary contact with the animal industry; applies veterinary knowledge and expertise in delivering the Animal Health Program; enforces legislation; supervises staff and performs other related duties.

[23]      The summary for the Veterinarian (VM-01) position reads as follows:

Reporting to the district veterinarian, applies veterinary knowledge and expertise in delivering the Animal Health Program; supervises the technical activity of inspectors and accredited veterinarians; communicates with members of the livestock industry, other agencies and the public; supports Resource Management activities in the district, enforces legislation and performs other duties.

[24]      The grievor testified that on a typical day she would be responsible for all the day-to-day operations of the office, including planning work, correcting work, and dealing with clients and the public. She directed Ms. Moyse in her work and also directed Mr. Walker, until he left the office in mid-August of 1998. She also testified that she was regarded in the community as the person to contact in the event of any problems or issues.

[25]      Hardy Shore testified on behalf of the grievor with regard to his perceptions on her role at the St. Thomas office, as a client of that office. Mr. Shore is the president of a cattle exporter, Shore Holsteins, located in Elgin County. His company exports about 5,000 head of cattle a year to over 62 countries. He testified that after Dr. Gough left it was "business as usual" and that Dr. Chadwick was considered by his company to be the district veterinarian. He wrote a letter on behalf of the grievor (Exhibit G-5), dated August 8, 2002, which reads, in part:

. . .

Dr. Ted Gough was the district veterinarian of the St. Thomas office up until March 1998. Since that time Dr. Mary Chadwick has been the only veterinarian in this office and we have dealt extensively with her. She has, in our opinion taken over the role entirely that Dr. Gough fulfilled. She is without question the primary contact person for our business dealings with CFIA. The only time we contact the London office is when she is away.

Since Dr. Gough has retired, Dr. Chadwick has been considered the district veterinarian for Elgin County by our business.

[26]      In cross-examination, Mr. Shore agreed that he was not familiar with the CFIA procedures for acting appointments and was not qualified to comment on the internal procedures used for acting appointments.

[27]      In her testimony, Dr. Chadwick reviewed the job description of the District Veterinarian (VM-02). In terms of "Manages Delivery", she testified that she was the only one in Elgin County managing the delivery of services. In terms of "Participates in the administration of the Region's Animal Health Program resources", she said that she did not do these duties entirely, but did them in part. She stated that she was the "Primary Contact" within Elgin County. She also "applied veterinary knowledge" and "enforced legislation". She indicated in her testimony that she supervised staff, "for the most part."

[28]      The grievor then reviewed each element of the seven elements of the VM-02 job description. The first paragraph of the job description states:

Reporting to a Regional Veterinary Supervisor. the District Veterinarian is responsible and accountable for managing the delivery of the Animal Health Program of the branch in the district.

[29]      Dr. Chadwick reviewed each sub-element of this paragraph and stated that her role was to plan, both in the short-term and long-term, what got done when. Prior to Dr. Gough's departure, he was responsible for programs such as the captive ungulates policy and would determine which herds needed testing, and when it would be done. Any problems with the program would be discussed with him. After his departure, this responsibility fell to her.

[30]      Dr. Chadwick testified that she directed the day-to-day activities through work assignment and as well responded directly to problems and any crisis. She gave an example of a particular crisis relating to export permits. In such a crisis situation, the client would phone her directly and expect her to deal with the problem. In the example she cited, she testified that she dealt directly with Dr. Holmwood, a VM-03, and that she assumed that her authority to resolve the problem came from her. She did not contact Dr. Green because there was no need to.

[31]      Verbal debriefing of subordinates was a common occurrence. She also controlled "deviations in program activity by determining the cause of the deviation and then taking appropriate action to return delivery to the established standard" by adjusting her workload and re-ordering daily priorities. She gave an example of a problem that arose with regard to sheep imports.

[32]      In terms of the control of human and financial resource needs, Dr. Chadwick testified that she had to determine which calls were handled and by whom. After Mr. Walker left, she had to determine if she could handle the call, or if she needed to call in someone from another district office. She had to make sure at all times that the office was covered and that someone completed the work.

[33]      The second paragraph, or element, of the VM-02 job description requires the participation in the administration of the Region's Animal Health Program through contributing to the financial activity of the region by supporting the budgeting development process, monitoring and controlling the consumption of financial resources, assuring completion of the Operating Resource System reports, and identifying the need for overtime work and obtaining authorization. This element of the VM-02 job constituted five percent of the time of the position.

[34]      The clerk, Elaine Moyse, prepared the budget for the office, although Dr. Chadwick testified that she was very familiar with it. Dr. Chadwick further testified that it was ultimately her decision to make sure that they had the supplies to do the job and she would then provide direction to the clerk. In cross-examination, she stated that Ms. Moyse would submit her own records under the Resource Management System and Dr. Green would roll up all of the submissions. Dr. Chadwick testified that she was in charge of scheduling her own overtime and did not ask permission to perform overtime work. Dr. Green approved Ms. Moyse's overtime and leave.

[35]      The third paragraph, or element, of the VM-02 job description describes the role of supervising a subordinate staff of veterinarians, inspectors and clerks through establishing objectives, goals and work plans; monitoring and evaluating performance; training and re-training; initiating disciplinary procedures by oral counselling, oral reprimand or recommending more severe disciplinary actions; recommending the granting of leave and other entitlements to the Regional Veterinary Supervisor; and supervising the work of accredited veterinarians.

[36]      Although the clerk in the office, Ms. Moyse, was a long service employee and did not require much direct supervision, the ultimate responsibility for her work rested with Dr. Chadwick. There were no formal evaluations of employees done. However, Dr. Chadwick testified that if there had been a performance problem with any of the employees at the St. Thomas office, she would have felt obligated to counsel them and correct any problems. She did train and re-train the clerk on programs such as the National Cattle Identification program.

[37]      No disciplinary matters arose at the office during the period in question. Dr. Chadwick testified that if, for example, there had been a problem with lateness, she would have been the one initially to deal with it. She would also have felt obligated to put it in writing. She would then talk about it with someone else, perhaps Dr. Green.

[38]      Dr. Chadwick testified that she was the primary contact for accredited veterinarians and was responsible for getting them up to speed on CFIA policies and procedures.

[39]      The fourth paragraph, or element, of the VM-02 job description is to provide a primary contact with the animal industry clientele and others requiring services. Dr. Chadwick testified that she was the primary contact for the industry and provincial and federal agencies in Elgin County. She was also responsible for responding to inquiries from the public and the industry and acting to resolve misunderstandings. She gave an example of a misunderstanding and how it was resolved, indicating that she dealt directly with VM-03 veterinarians in Guelph and did not go through Dr. Green.

[40]      The fifth paragraph, or element, of the VM-02 job description, which represents 60 percent of the time, has a great deal of overlap with the VM-01 job description. The evidence therefore focussed on those duties performed that were not in the VM-01 job description.

[41]      In terms of awarding compensation under various disease eradication programs, the authority of a VM-01 is to award up to $15,000 for one individual, while the VM-02 has authority for up to $35,000. During the period in question, there were no payments under these programs.

[42]      Dr. Chadwick also testified that she prepared and maintained a disease emergency contingency plan and maintained a complete set of procedure manuals.

[43]      The last paragraph of the VM-02 job description is a catchall of "other related duties", which include participating in the defence against civil litigation, being a member of the region's disease emergency response team, and carrying out special projects. Dr. Chadwick testified that she was asked to be a member of the emergency response team, but she declined because of her workload.

[44]      Dr. Chadwick testified that her contact with Dr. Green varied. Initially, he stopped in at the office about once a week, usually at the end of the day. There was minimal discussion of cases and the discussion was usually about general things. He would often sign leave forms and any bills that required payment. Later, she would not see him for extended periods. From approximately August 2000 to January 2001, she only had the odd phone conversation with him. He would come into the office either when Dr. Chadwick was not there or after hours to sign any paperwork.

[45]      Dr. Janusz Tarkowski testified on behalf of the employer. He is the Inspection Manager (VM-03), Ontario Operations, Southwest Region, and is based in Guelph. His job duties include overseeing program delivery in the region, responsibility for human resources and financial administration and supervising VM-02s.

[46]      Dr. Tarkowski did not have much direct contact with Dr. Chadwick, as most of his contact was with her supervisor, Dr. Green. The information he used to base his decision to reject the grievance at the first level (Exhibit E-3) came from discussions with Dr. Green, e-mail correspondence from Dr. Green, and his observations of the reporting relationships.

[47]      In e-mail correspondence dated October 30, 2001, Dr. Green responded to questions about Dr. Chadwick's duties and responsibilities raised by Dr. Tarkowski (Exhibit G-22):

. . .

1.      is [Dr. Chadwick] responsible for accredited vets? If so, what is the extent of her responsibility (audits, training etc)?

Yes, training, audits, compliance etc --- but this is no different than my VM 01s in London being solely responsible for the Accredited vets in Middlesex Co. ie, this function has been delegated by me

2.      does she arrange for other employees to carry out work when needed? If so, to what extent is she responsible for scheduling and assigning work and providing feedback on performance? Did she do it for Bill? Is Mary responsible for CR? Does CR report to her or you?

re: Bill Walker --- Dr. Gough supervised him until approx Mar/98 and then I took over --- Bill went on sick leave from Aug/98 to the present --- so I supervised him about 5 months and during that time Mary would have been somewhat responsible for his day to day activities whenever I was not present which was most of the time

re: Elaine Moyes --- she reports to me although when I'm not there Mary would be the highest ranking staff member in the office --- Elaine works fairly independently and a lot of her job has not changed in the past 30 years since she has been a clerk --- ie she is responsible for phone duty, stats, checking export charts from Accredited Vets, preparing export charts for us, banking expenditures, supplies etc --- so in that aspect there is not much direct supervision needed or instruction as to what to do day to day --- I am responsible for signing bills, leave, checking RMS, budget figures and stats.

re: Feedback on Performance eg PREA --- Mary doesn't do any formal performance review although if a situation arose at the St. Thomas office, Mary and Elaine would discuss it in order to arrive at a workable solution or they would ask for my involvement --- which really hasn't happened

3.      Is Mary responsible for reviewing reports and information, tracking trends, making recommendations on action plans, etc.?

The only outgoing reports Mary would scrutinize would be her own (to the best of my knowledge) As far as incoming reports for the most part she would be responsible for interpretation and implementation

4.      Does Mary participate in workplanning (not just for herself, but for the District Office)?

From an RMS point of view the St. Thomas workplan has for several years now been rolled up with the London workplan (because I supervise both offices) and I am responsible for the combined workplan and delivery of same. The office Budget is handled likewise

5.      If she encounters an issue that is "out of the ordinary" - requiring more in depth investigation, problem identification, identifying solutions and how they could be implemented - does she resolve that herself, or is she expected to involve the VM-2? If the expectation is that she contacts the VM-2 - is it done? Is it feasible? (given distance, workload, etc.)

Mary informs me of "unusual" situations but often just as a courtesy --- the same as most of us would do with their Supervisor --- occasionally she seeks advice on a particular situation but no more so than any other District Vet might discuss a situation with me to get my opinion and suggestions --- I can't recall any scenario where I have had to step in and take over because she wasn't able to handle the event

6.      Does Mary's work go beyond the application of methods and techniques to the development of methods and techniques to meet desired objectives?

I'm not sure I understand what you're getting at here --- but -when you are the only field staff for an area, she has to decide whether she needs help or can do it alone --- and the vast majority of the time, she manages on her own

[48]      Dr. Tarkowski also relied on the fact that, organizationally, Dr. Chadwick reported to Dr. Green. It was Dr. Tarkowski's view that because Dr. Green was a VM-02, and Dr. Green retained the responsibilities of a VM-02, Dr. Chadwick did not exercise VM-02 duties. In developing a new policy for the CFIA, Dr. Tarkowski would go directly to the District Veterinarian, Dr. Green, and seek his input. Dr. Chadwick was therefore not performing VM-02 duties in terms of managing delivery of the program.

[49]      Direct contact between VM-01s and the program people (VM-03s) is quite common, according to Dr. Tarkowski. It is not necessarily the case that the District Veterinarian is an expert in all issues and so contacting program experts is common. VM-01s work quite independently and do not require day-to-day supervision.

[50]      Dr. Tarkowski also testified that financial resources and human resources were the direct responsibility of Dr. Green, and Dr. Chadwick was not expected to supervise others. The clerks work quite independently, requiring very little day-to-day supervision. Disciplinary matters were the responsibility of the District Veterinarian.

[51]      Dr. Tarkowski testified that there was a standard procedure for appointing someone to an acting assignment when they would be acting for a period of any length, including an announcement or e-mail (Exhibit E-1). Employees also sign an acting assignment form, indicating that they accept the acting assignment. In this case, Dr. Chadwick did not sign such a form, and was not directed to perform additional duties. Dr. Chadwick was asked in cross-examination if it was open to an employee to stop performing VM-02 duties if management was not willing to pay for someone to do such duties. Dr. Chadwick replied that this was the case, in theory, but practically speaking it could leave clients "high and dry". She testified that she could not put herself in a position of denying services to clients.

[52]      Dr. Tarkowski stated that Dr. Chadwick was denied acting pay because of the nature of the reporting relationship and the fact that she did not manage financial or human resources. Furthermore, he testified that Dr. Chadwick was never asked to perform VM-02 duties.

[53]      Dr. Green provided an assessment of the situation and possible solutions in an e-mail to Dr. Tarkowski dated August 30, 2001 (Exhibit G-21), as follows:

. . .

I think that these circumstances warrant one of two solutions - either declare the positions as VM 02 and create a competition to fill it, or amalgamate offices so that there is someone present most of the time for direct supervision.

. . .

[54]      Dr. Tarkowski stated that he felt that Dr. Green was expressing a personal view and that he was free to express his views on the St. Thomas office.

Arguments

[55]      Written arguments were received and are on file with the Board. I have edited and summarized the arguments, below.

For the Grievor

[56]      The grievance is not a request for reclassification. There is a stated violation of clause G1.08 ("Acting Pay") of the collective agreement. The request is for remuneration according to the collective agreement. Consequently, the issue is a relatively straightforward one: Did Dr. Chadwick meet the conditions set out in the collective agreement by substantially performing the duties of the VM-02 position during the period outlined in the grievance?

[57]      How practically is it possible to determine if Dr. Chadwick substantially performed the duties of the VM-02 position? The proper reference points are the job descriptions. The duties or tasks expected to be performed by the VM-02 are clearly outlined in the VM-02 job description and the duties and tasks expected to be performed by the VM-01 are clearly outlined in the job description of the VM-01. It seems clear that the distinguishing factors between what duties a VM-01 is required to perform and what duties a VM-02 is required to perform would be found in the list of their respective duties.

[58]      In these job descriptions, there are many similar elements; that is, many of the duties are shared. Although about 60% of the duties listed in the descriptions are similar, there are differences in language throughout, delegating more authority to the VM-02 description. A prime example of this is the use of the word "prepares" in the VM-02 description, which becomes "assists" in the VM 01. This acknowledged overlap leaves us to focus on the areas of difference: managing the delivery of the animal health program, described as 10% of the time; administration, described as 5% of the time; supervision, described as 5% of the time; and some critical areas of primary contact and delivery.

[59]      It is interesting to note what is not contained in the collective agreement clause as well as what is contained in it. In the list of conditions set out in clause G1.08, it does not say that you cannot collect acting pay at the VM-02 level if there is another person at the same level in or near your office; it does not even say that you cannot collect acting pay at the same level as somebody you are listed as reporting to on the organizational chart. In fact, there is no reference to reporting lines in the clause at all. Nor is there any requirement for administrative sign-off on acting assignments.

[60]      There is no way of deciphering what job level somebody is performing on a day-to-day basis by examining reporting relationships or organizational charts. An organizational chart may be valuable in showing how things work administratively, but it is not a practical tool for determining who actually performs what duties for an organization. For example, nothing in the organizational chart supplied by the employer would rule out the potential for any VM-01 (in this case Dr. Chadwick) to be performing the duties of a VM-02.

[61]      Nor would the existence of an "Acting Appointment Certificate" (Exhibit E-1) prohibit individuals on a daily basis from performing the work of a higher level. Because an employee has not been officially recognized as working at a higher-level classification does not mean it has not been happening, and, in fact, that question of recognition is at the very heart of the grievance.

[62]      This grievance is about pay and whether Dr. Chadwick has been properly compensated for duties that she has actually been performing on a day-to-day basis. Jurisprudence clearly supports the position that an acting pay grievance is distinguishable from a classification question: Shearer (Board file 166-32-31151) and Stagg v. Canada (Treasury Board) (1993) 71 F.T.R. 307.

[63]      Dr. Chadwick was a credible witness who never attempted to overreach. She gave specific evidence as to the functions, which she performed regularly in her job since March 1998. She openly admitted the functions she did not perform. She explained why she finally filed the grievance when she did. She remained consistent during cross-examination.

[64]      She was clear in her testimony that she was in charge of the office and of the delivery of the animal health program to the county. She worked independently, without any supervision. There was even one point where she had no contact with her nominal supervisor for a period of five months. She did both short-term and long-term planning, prioritized and dealt with deviations from the plan, supervised (to the extent necessary) the accredited veterinarians, the Inspection Manager when he was there, and the clerical staff. She handled disputes and crisis on her own and without consultation with her nominal supervisor. She was clear that she did the job previously done by Dr. Gough, a VM-02 and veterinarian in charge.

[65]      Dr. Tarkowski showed himself to be removed from the daily functions that Dr. Chadwick was performing. He admitted he really did not know what duties Dr. Chadwick was performing at the St. Thomas office. If he did not know what she was doing there, how could he properly judge whether she was doing VM-02 duties? At best, his testimony could be described as theoretical in nature.

[66]      Dr. Tarkowski did, however, seek information from Dr. Green about Dr. Chadwick's grievance. When questioned in cross-examination about Exhibit G-21, Dr. Tarkowski said he never followed up with Dr. Green about Dr. Green's response to his request for information. His grievance response of October 15, 2002 (Exhibit E-3), would indicate such. It incorporates none of Dr. Green's points; in fact, it disregards the main message found in Dr Green's e-mail (Exhibit G-21).

[67]      This then begs the question: why did the employer choose not to call Dr. Green to the stand? That decision was based upon the certainty that he would have confirmed that Dr. Chadwick was performing the duties of a VM-02. An adjudicator should draw a negative inference from the employer's failure to call Dr. Green as a witness and its failure to use that opportunity to challenge Dr. Chadwick's testimony.

[68]      Exhibit G-21 suggests that Dr. Green corroborates Dr. Chadwick's evidence with regard to prioritization and who is in charge. And he certainly establishes her as a peer rather than a subordinate by indicating that she consults with him "no more than a neighbouring VM-02 might seek my opinion". Dr. Green believed that Dr. Chadwick was functioning as a VM-02. Dr. Green must have thought that Dr. Chadwick was assuming the role of the VM-02 or he would not have felt the need to outline solutions of this nature.

[69]      The employer's decision not to have Dr. Green testify means that, since Dr. Tarkowski admitted he did not know what functions Dr. Chadwick was performing, there is no direct evidence contradicting the testimony of Dr. Chadwick.

[70]      In Bégin and others (Board files 166-2-18911 to 18917), the adjudicator found a "preponderance of evidence" in allowing that the grievors had performed in an acting capacity. The facts are different from the instant case, but the adjudicator concluded that the grievors spent 70 percent of their time performing the duties of a higher classification.

[71]      A thorough review of the evidence in this case will indicate that the grievor performed at least 70 percent of the duties of the VM-02 position, constituting a substantial part of the duties, also called in the French translation "une grande partie" (a great part). In Beaulieu (Board file 166-2-28982), the adjudicator concluded that the jurisprudence established that the grievor, in order to get acting pay, did not have to perform all the duties of the higher-level classification, but relied on the independence of the positions.

[72]      The same logic should be used with regard to the instant case. There is a preponderance of evidence given by Dr. Chadwick (and much of it confirmed by Dr. Tarkowski) that Dr. Chadwick was working not only alone in her county, but independently. She was accountable for planning and prioritizing and handling disputes and crises. She was neither monitored nor supervised. She was in charge of the delivery of the animal health program in Elgin County. In this way, amongst others, she displayed that she was functioning as a VM-02 and is entitled to remuneration at that level.

[73]      Dr. Chadwick in her oral testimony, supported by documentation, was able to clearly delineate the VM-02 functions she had been performing and the fact that she had been working independently and without supervision. These functions she had been performing make up the most part of the VM-02 job and she was for the period "substantially performing the duties " of the VM-02.

For the Employer

[74]      This grievance allegedly concerns acting pay. However, in truth it is a classification grievance and is beyond the jurisdiction of an adjudicator appointed under the PSSRA. The CFIA objects to this grievance on a number of grounds:

- the adjudicator does not have jurisdiction over classification issues;

- if in the alternative the adjudicator has jurisdiction, the grievor has not proved her entitlement to acting pay on a day-by-day basis; and

- in the further alternative, what is the extent of relief available? Coallier (supra) suggests very little relief can be granted, if at all.

[75]      Paragraph 92(1)(a) of the PSSRA permits the reference to adjudication of a grievance concerning "the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award". Subsection 97(2) of the PSSRA confirms that once a grievance has been referred to adjudication, the adjudicator must consider the grievance and thereafter "shall render a decision thereon". However, these provisions must be considered in light of section 7 of the PSSRA, which limits the authority of the adjudicator in stating that:

Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.

[76]      Adjudicators have consistently held that they lack jurisdiction to consider a grievance that deals with the classification of a position. Indeed, jurisdiction is limited to the pay consequences of the classification or reclassification.

[77]      An adjudicator is obliged to look behind the obvious to see the root or essence of the issue: this veterinarian is really dissatisfied with her classification level. This is a classification case disguised as a pay grievance. Even though jurisdiction was taken in Shearer (supra), it is still open to an adjudicator, on the facts of this case, to find otherwise.

[78]      If this is truly an acting pay issue, why did the grievor sit on her rights for so long? Such great patience is hard to accept. Furthermore, under the heading "Corrective Action Requested", the grievor's grievance form says: "I request that I be paid for the above mentioned period as if I had been appointed to that higher classification..." [Emphasis added.] By this statement, one could reasonably conclude that all of this is truly about dissatisfaction with classification.

[79]      Clause G1.08 of the collective agreement contains two vital components; one must prove one was required by the employer to perform the duties, and, secondly, one must also establish that one substantially performed the duties of a higher level. The grievor has failed on both essential elements (see Wilson-St.Jean (Board file 166-2-13827)).

[80]      "Required" means ordered or compelled, according to the Concise Oxford Dictionary. There is simply no evidence, as acknowledged by the grievor under cross-examination, that she was required to perform VM-02 duties. No one ordered or compelled her to do so. Indeed, under the heading "Corrective Action Requested", the grievor's grievance form says: "I request that I be paid for the above mentioned period as if I had been appointed to that higher classification..." [Emphasis added.] There is no doubt she was not appointed or required to do the VM-02 work.

[81]      The grievor was challenged to provide proof of substantial performance on a day-by-day basis, as is suggested in the collective agreement. The only parameter referenced in the article is "days". Consequently, she is obliged to prove her entitlement on a day-by-day basis. She has failed to do so. The grievor did not demonstrate that she substantially performed the duties of the higher level from March 31, 1998 to July 30, 2001.

[82]      The comparison of duties between the VM-02 job description and her own ignores key facts: Dr. Chadwick's duties are limited to Elgin County; Dr. Green has a broader area of responsibility and a set of supervisory responsibilities. Dr. Chadwick has tried to equate the work in her county with that across a whole district, when in fact her responsibilities are narrower. Also, as shown by the organization chart, Dr. Chadwick, like all the veterinarians, answers to Dr. Green, the VM-02. The same is not true of Dr. Green.

[83]      Dr. Green was never absent. Therefore, the grievor could not act for him. Furthermore, the grievor's argument totally avoids the established practice of the CFIA for acting assignments. Appointment certificates are signed, and e-mail messages are sent for the sake of certainty.

[84]      The fact that the collective agreement does not have a reference to reporting lines or administrative sign-off is irrelevant. A formal appointment and sign-off are, as stated by Dr. Tarkowski and acknowledged directly by the grievor, the established CFIA practice for acting appointments. Suggesting it could be otherwise would invite chaos into the workplace. If we were to have it the grievor's way, employees could then claim that they were acting at any level they might choose and for any time they themselves deemed fit.

[85]      Furthermore, the scope, financial and managerial responsibilities, geographic area and personnel as demonstrated by organizational charts are recognized factors to determine whether a grievor has been acting in a higher classified position, and the CFIA can rely upon them. In this case, Dr. Chadwick performed duties in a single district, had lesser financial authorities and had fewer personnel accountable to her. Her position compared unfavourably with Dr. Green's position in the critical components. A critical comparison of these two position descriptions and the viva voce evidence reveal a disparity between them.

[86]      The fact that Dr. Chadwick communicated directly with program officers in Guelph (Exhibits G-9 through G-14) in the course of her duties does not elevate her classification. This is just part and parcel of what is commonly expected when applying her professional knowledge as a VM-01, as set out at the outset of page 2 of her position description (Exhibit G-2). They do not prove her entitlement to acting pay.

[87]      One cannot speculate as to why Dr. Green was not called. If the grievor was so certain of his testimony, perhaps she should have called him in support of her case. In any case, much of what is attributed to Dr. Green in Exhibit G-22 does not support the grievor's claim. Dr. Tarkowski denied Dr. Chadwick acting pay because she did not perform managerial duties or have the same financial responsibilities as the VM-02. She did not manage human resources or have a work planning function as the VM-02. Rather, Dr. Tarkowski testified that the grievor performed her duties under the supervision of the District Veterinarian. This was the key distinction between them. Consequently, Dr. Chadwick's evidence has not gone uncontradicted.

[88]      With regard to the merits of the grievance, the employer also referred me to Shearer (supra).

[89]      In Canada (National Film Board) v. Coallier (supra), Pratt J.A. of the Federal Court of Appeal limited the relief that an adjudicator could grant to a successful grievor to a period no longer than the 25 days preceding the filing of the grievance. Therefore, the grievor is only entitled to 25 days of acting pay, if at all.

Reply

[90]      Dr. Chadwick never claimed to be replacing or acting for Dr. Green. Her claim is that when Dr. Gough left the duties that he had been performing as a VM-02, those duties fell to the only veterinarian remaining. Dr. Chadwick was left to perform the duties of a VM-02.

[91]      Dr. Gough's retirement was significant; however, the situation and the question of how the office would be run was not clear at first. Dr. Chadwick was clear that on a functional basis she had next to no contact with Dr. Green and did not rely upon him at all. While it is true that Dr. Green had signing authority according to Exhibit E-2, it was apparent from Dr. Chadwick's testimony that at the functional level she was responsible for these items.

[92]      The fact that there was no administrative acknowledgement of her performance of VM-02 work just confirms her position that she was overlooked.

[93]      No evidence was adduced by the employer to support its position on classification jurisdiction. Dr. Chadwick was clear in her testimony that she had no ambitions to be anything other than a VM-01. She did want to be properly remunerated for the time she spent doing VM-02 work.

[94]      It is difficult to understand how the employer could conclude that the quoted statement "as if I had been appointed to a higher classification" expresses dissatisfaction with her classification when the quote is taken directly from the acting pay language of the collective agreement.

[95]      With regard to Wilson St-Jean (supra), this is a far different set of circumstances than in the present case where someone would be needed and expected to pick up the duties that Dr. Gough had left behind upon his leaving. There was a requirement that those duties be picked up or the business would not be operational. Dr. Chadwick was that person.

[96]      The first definition of "required "found in the Canadian Oxford Dictionary, Oxford University Press, 2001, is "need or depend on for success or fulfilment."

[97]      According to the above definition and as described in her testimony, Dr. Chadwick was "required" to perform duties which normally would be carried out by a VM-02, as outlined in the VM-02 job description.

[98]      Everyone agrees that Dr. Chadwick did a good job running the St. Thomas office. The employer never intervened to tell her to stop doing what she was doing. The only question is whether she was paid appropriately for the duties she performed. Dr. Chadwick did the work she felt was "needed" or "required" to maintain and enhance the CFIA's client relationships in Elgin County.

[99]      The burden of proof is on Dr. Chadwick to establish that she meets the test of the language of clause G1.08. But it is patently false to imply that because "days" is mentioned in clause G1.08, the "standard of proof" now becomes proving beyond doubt that she was entitled on a daily basis. The appropriate standard is the "balance of probabilities"

[100]      The question then becomes: given the fact that the VM-02 (Dr. Gough) left the office, that no other veterinarians worked there, and that Dr. Green was not around to do any of the veterinary work, would it be reasonable to say, given a balance of probabilities, that Dr. Chadwick was substantially performing the duties of a VM-02 during this period?

[101]      It might be helpful to examine exactly what Dr. Chadwick's claims are and are not, and to distinguish between the claims made by Dr. Shearer (in Shearer, (supra)) and Dr. Chadwick.

[102]      While both Dr. Shearer and Dr. Chadwick are veterinarians, Dr. Shearer, a substantive VM-02, claimed acting pay for the VM-03 position (the Inspection Manager). In this case, Dr. Tarkowski is a VM-03 Inspection Manager. This is a management position hearing grievances at level one and in charge of a wide geographical area (a region) with numerous reports.

[103]      Dr. Chadwick is not claiming VM-03 pay; she is claiming VM-02 pay. She is not claiming she does the same or all of the duties Dr. Green does. She is not claiming to replace or act in Dr. Green's stead. She is simply claiming that she substantially performed VM-02 duties for the period. She is using the job description as the reference point.

[104]      The reasons for the decision made by Deputy Chairperson Guy Giguère in Shearer (supra), do not apply here: the broader scope at a regional level, more financial authority and managerial responsibilities, more personnel and program issues, and the intrinsic nature of the broader range of responsibilities at the regional level. While these are facts that Dr. Shearer had to deal with, they are not involved in Dr. Chadwick's situation.

[105]      Dr. Chadwick is not claiming to be a manager with scope at the regional level; she admits she had limited financial authority; she makes no claims to have scope beyond Elgin County; she does claim to deal with program issues as they relate to her office and personnel issues as they relate to her office. She makes no claim as to what Dr. Green is doing. Her evidence only concerned what she was doing.

[106]      It should be noted that in Shearer (supra), Mr. Giguère did not rely on the "scope, financial and managerial responsibilities, geographic area and personnel" as demonstrated by organizational charts alone. Mr. Giguère heard from the Inspection Manager, Ken Murray, who occupied the position that Dr. Shearer said she was acting in. And in examining Mr. Giguère's reasons for finding that Dr. Shearer did not substantially perform the duties of the Inspection Manager, he relied heavily on the testimony of Mr. Murray.

[107]      In this case, it is Dr. Green who could have shed light on several questions: what he, as a VM-02, was doing; what he, as the named supervisor of Dr. Chadwick, did in terms of supervision; and what distinguished his duties from a VM-01. Unfortunately, he did not testify. The employer failed to call Dr. Green to support its position. This is unlike the case involving Dr. Shearer, where her direct supervisor was called to the stand and testified.

[108]      It is strongly suggested that, given his own admissions as to his lack of knowledge of Dr. Chadwick's actual duties and his reliance on Dr. Green for knowledge of the district, Dr. Tarkowski is not in a position to provide testimony contradicting Dr. Chadwick. Consequently, her evidence remains uncontradicted.

[109]      In Macri (Board file 166-2-15319), the adjudicator states:

. . .

          If the decision of the Federal Court of Appeal is to be read as barring Macri, or any grievor, from collecting what is alleged to be owed to them for a period greater than the 20th or 25th day (as the case may be) preceding the lodging of a grievance and within which action must be initiated then surely this forces unfortunate consequences on both parties. It will force employees to demand that management take no longer than 20 or 25 days to resolve decisions lest grievances be automatically lodged to protect their positions. This could frustrate delicate negotiations at most inopportune times. It might well lead to an increase in unnecessary litigation before this Board. Conversely, if the rationale of Coallier is as I fear, then there will be every incentive for the employer to delay making decisions in the hopes that an employee will neglect to grieve before the 20th or 25th day, thereby failing to protect his/her interests and becoming barred from claiming what was alleged to be owed. That is to say, there would be an incentive for the employer to fail to act. Such a result would be unconscionable or inequitable.

(Emphasis added)

[110]      Not in every instance would it be equitable to hold to the 25 days of pay as suggested in Coallier (supra). In this case, while the employer accuses the employee of missing time lines and therefore either not being entitled to any acting pay or entitled to a minimum amount of acting pay, it is clear that it took no steps to attempt to solve an issue before it. Could it also be true that after the 25 days were up that the employer breathed a sigh of relief knowing that it was shielded from its responsibilities?

Reasons for Decision

[111]      The relevant clause in the collective agreement between the Professional Institute of the Public Service of Canada (PIPSC) and the CFIA (Exhibit G-1) is as follows:

G1.08 Acting Pay

When an employee is required by the Employer to substantially perform the duties of a higher level classification level on an acting basis for:

(a) ten (10) consecutive working days for levels VM-1 to VM-3;

. . .

they shall be paid acting pay calculated from the date on which they commenced to act as if they had been appointed to that higher classification level for the period in which they act.

. . .

[112]      Dr. Chadwick found herself in a difficult position after Dr. Gough, the District Veterinarian for Elgin County, took early retirement. The employer reorganized the office, eliminating the District Veterinarian position, and gave the Elgin County District Veterinarian responsibilities to Dr. Green in the London office. Dr. Green also had responsibilities as the District Veterinarian for Oxford County. The St. Thomas office was transformed into a satellite office. However, the expectations of both her superiors and herself were that the level of service to Elgin County would remain unchanged. These expectations were not put in writing and may have been largely unspoken. As a result, Dr. Chadwick took on many, but not all, of the duties formerly performed by Dr. Gough. As a tribute to her professionalism, clients in Elgin County did not notice any change in the level of service.

[113]      This situation could not hold for long. Dr. Chadwick was patient and waited over two years before taking formal action, including grieving her job description and the present acting pay grievance. The unspoken expectations of the level of service at the St. Thomas office, without the requisite level of recognition, became untenable for her. The satellite office arrangement was also frustrating for Dr. Green, who proposed some alternatives to Dr. Tarkowski (Exhibit G-21), including reclassification (essentially a return to the former office structure) or amalgamating offices to allow for direct supervision. It was the latter option that was eventually chosen by CFIA when it closed the St. Thomas office and moved Dr. Chadwick to the London office.

[114]      The jurisdiction of an adjudicator over issues relating to, in generic terms, the proper remuneration for work performed is constrained by the PSSRA. An adjudicator must carefully examine the facts and surrounding circumstances to determine if, in essence, the dispute is about acting pay or classification. This is because the PSSRA specifically excludes jurisdiction over the organization of the Public Service and classification of positions in the absence of a provision in the collective agreement dealing with these matters. Section 7 of the PSSRA states:

Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.

[115]      The leading case on jurisdiction for acting pay grievances is the decision of Mr. Justice Muldoon of the Federal Court, Trial Division, Stagg v. Canada [1993] F.C.J. No. 1393. In this decision, the grievor was claiming acting pay for a period of time before her position was reclassified to a higher level. The adjudicator declined jurisdiction on the basis that this was a classification issue. Before the Federal Court, the grievor's representative argued that "section 7 does not impair or suppress a determination by the Board of the proper rate of pay following the employer's higher reclassification of the employee's duties in an acting capacity" (paragraph 4). There was uncontradicted evidence that the applicant substantially performed the duties of a higher classification during the period in question. Since this was, in the Court's view, "clearly a case of a remuneration grievance", there was no reason to decline jurisdiction.

[116]      A decision of an adjudicator appointed under the PSSRA issued after the Stagg (supra) decision is particularly relevant. In Charpentier and Trudeau (Board files 166-2-26197 and 26198), the adjudicator found that the environmental investigator positions in Montreal and Toronto in question were, for all practical purposes, almost identical. Even though the adjudicator found the classification differences difficult to understand, he declined jurisdiction because, if acting pay were granted, the effect would be to reclassify the positions occupied by the grievors. He stated that Stagg (supra) did not apply since the grievors' positions had never been reclassified.

[117]      In Dr. Chadwick's case, the effect of granting the requested remedy (assuming that the evidence showed substantial performance of the duties at a higher level) would be to reverse management's decision to reorganize the St. Thomas office. The employer decided to make this office a satellite office of the London office and gave the responsibility of District Veterinarian to Dr. Green. As I have noted above, this was a difficult situation for both Dr. Green and Dr. Chadwick. The reorganization required Dr. Chadwick to be more autonomous and to take on more responsibility over the day-to-day operations. However, if I were to find that she was substantially performing the duties of a VM-02, I would, in effect, be undoing the reorganization by recreating the VM-02 position that was eliminated in the St. Thomas office.

[118]      Dr. Green, who was physically located in the London office, occupied the position of District Veterinarian at all relevant times. Dr. Chadwick was performing many of the duties that had been performed by Dr. Gough in the St. Thomas office. However, Dr. Green was performing many of those duties as well, and retained overall responsibility for the St. Thomas office. The evidence was uncontradicted that some of the key management functions, such as approval of leave and financial management, remained Dr. Green's responsibility.

[119]      Managing a satellite office was obviously a challenge for the organization. The closing of the St. Thomas office may reflect this challenge. Given that Dr. Chadwick, in order to professionally manage this office, was required to do work that went beyond the letter of the VM-01 job description, it is clear that organizationally it was less than perfect. However, section 7 of the PSSRAprevents me from second-guessing the management decision to organize the workplace in this fashion.

[120]      Accordingly, the grievance is dismissed.

Ian R. Mackenzie,
Board Member

OTTAWA, May 9, 2003