FPSLREB Decisions

[1]   This decision addresses a grievance filed by the Professional Institute of the Public Service of Canada on behalf of Elizabeth Krenus, a nurse in the Correctional Service. The grievance alleged that the grievor was improperly denied the salary increases provided under the collective agreement for educational attainments.

[2]   A hearing was held in Vancouver on June 5, 2003. Counsel for the employer raised a preliminary objection to my jurisdiction to hear the matter, on the grounds that the basis of the grievance had been changed since the decisions at earlier steps of the grievance process.

[3]   The grievance was presented as follows:

I grieve management's refusal to grant Educational Allowance which I am entitled to according to the Health Services Group Collective Agreement, pages 129-130, Appendix "B". Allowances - Nursing Group.

[4]   Counsel for the employer argued that, on the basis of his discussions with the representative of the bargaining agent in preparation for the hearing, he understood that the bargaining agent would be putting forward an interpretation of the terms of Appendix "B" which had not been advanced in the earlier stages of the grievance process. He said that it was not open to the bargaining agent to change the basis of the grievance at the adjudication stage, but that they were bound to make their case before me in the same terms which had been the subject of discussion at earlier points.

[5]   In support of this argument, counsel referred me to the decision of the Federal Court of Appeal in Burchill v. Attorney-General of Canada [1981], 1 F.C. 109. In that case, the Court concluded that an adjudicator had correctly concluded that he did not have the jurisdiction to consider the grievance, where the bargaining agent had reframed the basis for a grievance which had not been successful at earlier stages of the process. The original grievance had concerned the layoff of the grievor, an employee with "indeterminate employee status." The grievance as presented for adjudication alleged that the action of the employer constituted a disciplinary discharge.

[6]   As I understand the Burchill case, the original grievance which was filed by the bargaining agent in relation to the layoff would not have been eligible for adjudication under the Public Service Staff Relations Act, though it could be pursued through the earlier steps of the grievance process. Having failed to achieve success by this means, the bargaining agent reformulated the grievance as an allegation of discipline leading to discharge, an issue for which adjudication was an available under the Act.

[7]   The history of the case before me is significantly different than that described in the Burchill decision. There was no suggestion that any question of interpretation of Appendix "B" would lie outside my jurisdiction. The objection was based on the allegation that the interpretation the bargaining unit wished to advance at adjudication differed from the interpretation on which they had founded their argument at earlier stages. It therefore seems to me that the objection based on jurisdiction cannot succeed.

[8]   As a matter of fair process, it is, of course, open to me to consider whether the alleged change in approach by the bargaining agent would be so prejudicial to the employer that I should decline to hear the case, or permit an adjournment of the matter, though this was not a remedy sought by the employer.

[9]   In the interests of an effective grievance process, it is important that the bargaining agent should state clearly at the earliest opportunity the grounds for a grievance, in order to permit the employer to respond on an informed basis.

[10]   On the other hand, it is to be expected that the approach taken by the parties will change somewhat as they move through the successive stages of the process, and that the bargaining agent will attempt to put its best foot forward at adjudication, which is the last chance to have the matter considered.

[11]   Counsel for the employer argued that the late communication of the change in the interpretation which would be put forward by the bargaining agent prevented his client from adducing evidence concerning the bargaining history related to Appendix "B". He also stated that the employer thought agreement had been reached with the bargaining agent concerning the implications of their earlier interpretation of the provisions of Appendix "B".

[12]   Though the argument of the employer was not directly put on the basis of fair procedure, I have concluded that it cannot stand even on this ground. The issue was put forward by the bargaining agent as a request for an interpretation of the words of Appendix "B". In this connection, whatever progress may have been made in earlier discussions of the grievance, it must have been clear to the employer because of the reference to adjudication that there was still an outstanding issue of interpretation, and they had an opportunity to formulate an argument to support their own interpretation.

[13]   Though it is important that the parties communicate clearly about the nature of their grievances and disputes in order to resolve their differences in an effective manner, it is also important that this principle be applied in a way which permits the parties to explore all aspects of the issues on which they disagree. I have concluded that there is not sufficient prejudice to the interests of the employer in this instance to justify declining to consider the case.

[14]   The relevant portion of Appendix "B" from the collective agreement which was in force at the time of the grievance reads as follows:

For all purposes of pay, the annual rates of pay for the Nursing Levels stipulated in Appendix "A" shall be altered by the addition of the amounts specified hereunder in Column II in the circumstances specified in Column I.

Column I	Column II
B.   Education Allowance
Where the following post-graduate nursing training or nursing education is utilized in the performance of the position:
a) Recognized speciality training course,    3-6 months	$ 550
b) Recognized speciality training course,    7-12 months	$ 800
c) i) One-year university course in Administration, Administration and Education ("organizations des soins et éducation ") Clinical Fields (" milieu clinique "), Community Health (" santé communautaire "), Gerontology ("gérontologie"), Health Services Administration I and Health Services Administration II ("gestion des services de santé 1 et 2"), Mental Health ("santé mentale"), Nursing, Psychiatry, Public Health, Teaching and Supervision, or in any other Field of study approved by the Employer.	$1,200
ii) Two one-year university courses as described in i) above	$1,300
iii) Three one-year university courses as described in i) above	$1,500
d) Bachelor's degree in nursing	$2,000
e) Master's degree in nursing	$2,500
One (1) allowance only will be paid for the highest relevant qualification under paragraph B.
The corresponding provision, paragraph B of a section headed "Pay Notes" in the prior collective agreement, read as follows:
B.   Education Allowances
Where the following post-graduate nursing training or nursing education is utilized in the performance of the duties of the position:
a) Recognized speciality training course,    3-6 months	$ 400
b) Recognized speciality training course,    7-12 months	$ 575
c) One-year university course in Administration, Public Health, Teaching and Supervision, or Psychiatry	$ 950
d) Bachelor's degree in nursing	$1,150
e) Master's degree in nursing	$1,550
One (1) allowance only will be paid for the highest relevant qualification under paragraph (B).

[15]   Ms. Krenus is a nurse in the Correctional Service who began her employment in February, 1995. At that time, she had dual registration as a Registered Nurse and a Registered Psychiatric Nurse. Following a 1998 adjudication concerning the status of training in psychiatric nursing (Gervais and Treasury Board (Solicitor-General - Correctional Service, [1998]   C.P.S.S.R.B. No. 84, PSSRB File No. 166-2-28207), and as a result of a grievance filed on her behalf, Ms. Krenus was granted an allowance under Appendix "B" in recognition of her dual certification, and this allowance was backdated to the commencement of her employment.

[16]   Mr. Krenus also pursued a Bachelor's degree in nursing, which she completed in December, 2000. In accordance with the provisions of paragraph B (d) of Appendix "B" an allowance was added to her salary in recognition of this additional qualification.

[17]   Ms. Krenus testified that, as she pursued the individual components of her Bachelor's degree program, she inquired whether the reference in paragraph B(c) of Appendix "B" to a "one-year university course" meant that she could receive an allowance in relation to the completion of the segments of her degree. She said that her managers said that this would have to await the completion of her degree.

[18]   This issue which was raised by Ms. Krenus is the one which has been presented by the bargaining agent for determination in this adjudication. The argument put forward by the bargaining agent is that the reference in paragraph B(c) to a "one-year university course" applies to any individual course, also sometimes referred to as a "class", which is taken over an academic year.

[19]   Counsel for the employer argued that the term was not meant to refer to individual university courses (or classes), but to a full professional course, the completion of which would confer an additional credential.

[20]   The bargaining agent called as a witness Mr. William Cook, the Registrar of the University College of the Fraser Valley, where Ms. Krenus received her Bachelor's degree. He testified that the term "course" as used at his institution, and at other universities, often refers to the individual components of a degree. These are assigned a certain number of credits, and the requirements for each degree program will be defined by a total number of credits. The values commonly assigned to individual courses are 3 credit units for a course which is taught in one semester, or 6 credit units for a course which is taught over two semesters. He indicated that this description would apply to "regular" courses which are taught between September and April. Though there is a third semester during the summer, the courses taught in that period are structured somewhat differently.

[21]   The representative of the bargaining agent argued that, as paragraph B(c) refers to university courses, I should be guided by the normal use of the term "course" in that setting, as described by Mr. Cook. According to the interpretation of this provision put forward by the bargaining agent, Ms. Krenus should be able to claim an addition to her salary for each 6 credit unit course taken as part of her Bachelor's degree program, to a maximum of three. A review of the requirements for the nursing degree program in the calendar of the University College of the Fraser Valley reveals that there are few 6-credit unit courses as such in that program, and that nearly all of those are described as "Nursing Practice." It was not entirely clear from the argument whether the bargaining agent was therefore proposing that two 3 credit unit courses could be combined into one "course" for the purposes of Appendix "B", though I interpreted his argument as having this implication.

[22]   It is, of course, instructive to understand how a term such as "course" is used in a post-secondary institution, where its meaning has considerable importance. I do not accept the argument, however, that the meaning attached to the term by a university in describing degree requirements is determinative of the meaning which should be attached to the term when it appears in a collective agreement as a result of negotiations between a trade union and an employer. Individual terms must be interpreted in the context of the agreement itself. Though it is sometimes helpful to draw on the meaning which is given to these terms in other settings, it is the environment created by the relationship between the two parties which is the most significant element of any interpretation made of a collective agreement.

[23]   In this respect, the context in which a particular term is used is one of the most significant factors in determining the meaning. In this instance, one of the indicators of the meaning of the term "course" here is the wording of the other items in the list of educational accomplishments which is the trigger for additional salary. In paragraph B(a) and B(b), the term "course" is clearly used to refer to a specialized training program which leads to a particular professional credential. Indeed, this seems to have been the way it was interpreted in connection with the training in psychiatric nursing for which Ms. Krenus earlier received a salary allowance under this provision.

[24]   Considering these along with the post-graduate degrees listed in B(d) and B(e), the list is one of "courses" or complete programs which lead to the conferring of an additional professional designation or credential.

[25]   A single university class or course is not of this nature. Individual courses are building blocks for a diploma, certificate or degree, but the completion of each one does not in itself confer any particular status.

[26]   There are two further reasons why it would seem anomalous to interpret paragraph B(c) as referring to individual university courses. One is the question of why the limit of three of these courses would be chosen for recognition, rather than, say, the completion of one year of a longer program. In segments of 6 credit units, a typical four-year degree program described in the calendar which was put in evidence might require 20 "courses", and there does not seem any particular reason why an employee would be rewarded for taking three of these. Even allowing for the fact that a program might have course requirements which are not directly relevant to nursing, it is difficult to see the logic of placing the cap at three.

[27]   The second point is that, if the argument of the bargaining agent is that two 3 credit unit courses could be combined to fit into the term "one-year university course", this is an awkward way to indicate this. There is certainly nothing in the provision which specifically permits this, and it would seem likely that if individual university courses were what the drafters of the provision had in mind, they would have indicated this in more detail.

[28]   A more reasonable interpretation of the provision is that it is intended, like the other parts of paragraph B, to reward employees for achieving an additional professional qualification. In the case of paragraph B(c), this would be one-year university courses, in the sense of programs which would lead to a certification or diploma in one of the listed areas. Such a program might include a number of individual university "courses."

[29]   This interpretation seems more in keeping with the escalating size of the allowances and the nature of the other kinds of training and education for which the allowances are given.

[30]   For the reasons I have given here, I find that the grievance must be denied.

Beth Bilson, Q.C.,
Board Member

DATED at Saskatoon, this 21st day of July 2003.