FPSLREB Decisions

[1]    Guy Lajoie is an employee of Correctional Service Canada and has been working at Archambault Institution since 1985.

[2]    Since 1988, he has been the clerk in a visits and correspondence position, which is classified as AC-I (currently CX-01). Previously, Mr. Lajoie held a position with a classification of AC-II (CX-02).

[3]    On July 23, 2000, Mr. Lajoie filed a grievance alleging that his employer was not paying him equitably with respect to other employees performing the same duties he does.

[4]    The grievance was referred to adjudication in July 2002 and the case was heard on September 2 and 3, 2003.

[5]    At the start of the hearing, the employer objected to the adjudicator's jurisdiction since, in its opinion, the case is a classification issue. This objection was taken under consideration.

[6]    During his testimony, Mr. Lajoie explained that, in 1988, five people worked in the visits and correspondence service. Since 1992, three employees have worked there, namely, Mr. Lajoie (AC-I; currently CX-01) and two other employees (AC-II; currently CX-02).

[7]    Mr. Lajoie explained that, in 1990, there was a service restructuring. At that time, he obtained information as to his status (Exhibit F-2). On May 3, 1990, the Deputy Commissioner, Jean-Claude Perron, confirmed that employees in the visits and correspondence sector would not be declared surplus. Positions would be eliminated by attrition and, therefore, if an employee did not want to be transferred to another position, he could remain in his current position as long as he wanted (Exhibit F-3).

[8]    A letter of September 4, 1990 (Exhibit F-4), confirms the fact that Mr. Lajoie could remain in his position.

[9]    In practice, Mr. Lajoie is the only one to retain his position because the Institution's program involves a rotation of employees through all positions, with about six months in each position. However, in the case of the visits and correspondence service, a "slow rotation" is applied, which means an employee stays there for two years.

[10]    Mr. Lajoie described his work as proactive with the inmates. During visits, he watches the inmates' interactions with their families. Prior to a visit, he discusses it with the inmate in question and then checks with the person or people who are to make the visit.

[11]    In the case of private visits in the trailers, he shares his observations with the family visits committee.

[12]    Mr. Lajoie received a job description in 1998. He commented that the tasks have evolved over the years. He is required to enter data in the computer and to refer to it to determine inmate activities.

[13]    Mr. Lajoie claims that the two other employees working with him carry out duties similar to his. Since these employees change periodically every two years, he is required to train the new arrivals. The only employees eligible for this work are CX-02s as part of a two-year slow rotation.

[14]    Mr. Lajoie claims that he is a special case and, moreover, the former warden of Archambault Institution sent a letter on July 22, 1999, to regional administration insisting that Mr. Lajoie's salary be that of a CX-02 (Exhibit F-6).

[15]    Another employee of the Institution, Luc Querry, indicated that he holds a position classified as CX-01. However, whenever he replaces an employee in the visits and correspondence service, he is paid the equivalent of an AC-II. To his knowledge, everyone who replaces an employee at the service is paid a salary equivalent to the CX-02 level.

[16]    For its part, the employer called André Courtemanche to testify, who has been the Deputy Warden at Archambault Institution since 1998. He is well aware of Mr. Lajoie's situation. According to Mr. Courtemanche, Mr. Lajoie could have requested a position classified at the CX-02 level, but he would then have had to agree to be mobile since the purpose of the new services restructuring was to make employees more broad-based in their skills and to fill various positions on a rotating basis: either six-month assignments or longer ones in certain cases. He submitted correspondence from 1993 and 1994 supporting his testimony (Exhibits E-1 and E-2).

[17]    Mr. Courtemanche testified that employees in CX-02 positions have a dynamic function in that they monitor the files of six or seven inmates.

[18]    In practice, Mr. Lajoie's position differs from that of the others because he works a five-day-per-week schedule and is not required, like his colleagues, to be assigned to other positions subject to variable schedules. He referred to memoranda on salary protection and the possibility of transfers (Exhibits E-8 and E-9).

[19]    Mr. Courtemanche is well aware that Mr. Lajoie's case is special but it is not up to the Institution to classify employees. He admits that, when Mr. Lajoie leaves, if administration wants to keep this position, it will have to reclassify it to a CX-02 level to be able to recruit people because the other two employees working in the visits and correspondence service are in positions classified as CX-02.

Arguments

[20]    According to the grievor, he performs duties identical to those of his other two colleagues and therefore he should receive the same pay.

[21]    The employer argues that Mr. Lajoie enjoys a privilege in being able to remain in the same position without having to rotate. That position is classified CX-01 and the adjudicator does not have the authority to grant any other classification.

Reasons for decision

[22]    It is true that the adjudicator may not intervene in the area of classification. However, article 48.07 of the collective agreement applicable to employees of the Correctional Services group (Exhibit F-1) states as follows:

48.07. When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least one (1) working day, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts.

[23]    In Begin et al (Board files nos. 166-2-18911 to 18917), the adjudicator relied on the balance of probabilities in finding that the employees had performed the duties of a higher level in an acting capacity. The adjudicator found that the employees devoted 70 per cent of their time to performing duties at a higher classification.

[24]    In light of the evidence presented, there is no doubt that Mr. Lajoie performs duties similar to those of his other two colleagues holding positions classified as CX-02 and who work within the framework of a two-year slow rotation at the visits and correspondence service.

[25]    It could be claimed that this is a temporary assignment and that the employees in a CX-02 position cannot be paid less when they perform the duties in the visits and correspondence service. In such a case, we must ask ourselves why employees, like Luc Querry, who hold a CX-01 position are paid at a CX-02 salary level when they are replacing someone in the visits and correspondence service.

[26]    It was shown that Mr. Lajoie performs duties similar to those of employees holding positions classified as CX-02. The only difference is the fact that Mr. Lajoie is not subject to position rotation. This situation arises from a decision by the employer who gave him this guarantee of stability.

[27]    Furthermore, in the letter of July 22, 1999 (Exhibit F-2), the employer himself admits that the duties of the clerk in the visits and correspondence service have been significantly expanded for several years. The system put in place by the employer stipulates that employees in CX-02 positions perform a two-year slow rotation in this service.

[28]    Mr. Lajoie trains new arrivals at the visits and correspondence service and performs the same tasks they do; he should, therefore, in an acting capacity, receive the same pay as required by article 48.07 of the collective agreement.

[29]    In light of the above, I allow the grievance and instruct the employer to pay Mr. Lajoie a salary equivalent to a CX-02 position held in an acting capacity beginning 25 days prior to the grievance of July 15, 2000.

Jean-Pierre Tessier
Board Member

OTTAWA, December 22, 2003.

P.S.S.R.B. Translation