FPSLREB Decisions

[1]   On August 2, 2002, Dorothy Reid filed a grievance calling for payment of the Terminable Allowance for Correctional Service Psychologists, as provided for by Appendix "J" of the Health Services collective agreement. Ms. Reid seeks such payment retroactive to May 23, 2002, the date upon which she became registered with the Saskatchewan College of Psychologists.

[2]   The Correctional Service of Canada [CSC] denied the grievance on the basis that, on consulting with Treasury Board, entitlement to the Terminable Allowance for Correctional Service Psychologists was conditional upon "performance of PS duties in the Health Services Group", according to articles 1 and 2 of Appendix "J". Given that Ms. Reid was currently serving out an AS-05 Acting/ Secondment/Deployment (3 years) contract as Regional Coordinator, Employee Assistance Program/Critical Incident Stress Management [EAP/CISM], a position classified within the AS group, she was not "performing duties which pertain to the Health Service group collective agreement" and, accordingly, was not eligible for the Terminable Allowance.

[3]   The parties agreed on the following facts.

[4]   Dorothy Reid joined the Public Service of Canada in May of 1981.

[5]   Dorothy Reid received her Master's in Psychology in 1995 from the University of Saskatchewan.

[6]   On November 2, 2000, the CSC posted a competition for an AS-05 Acting/ Secondment/Deployment (3 years) into the Regional Coordinator EAP/CISM position No. 26780, for the CSC Regional Headquarters, Saskatoon, Saskatchewan. The competition closing date was November 17, 2000.

[7]   Dorothy Reid submitted an application for this position.

[8]   Dorothy Reid had been seconded into the Regional Coordinator EAP/CISM position (No. 26780), or carrying out the duties of the Regional Coordinator EAP/CISM on at least a half-time basis from as early as April of 1994. This position is currently classified at the AS-05 group and level.

[9]   In 1994, when Dorothy Reid was first seconded into this position her substantive group and level was that of an SI-03. Ms. Reid was promoted to the Associate Program Director position (No. 21228) in or about October of 1998, which position was classified as AS-05. The position was reclassified and became an AS-06, in or about September of 1999, retroactive to October of 1998.

[10]   While on secondment to the Regional Coordinator EAP/CISM on a half-time basis from April of 1994 on, Ms. Reid was, commencing in June of 1998, seconded on a half-time basis to the Program Director Position for the Clearwater Unit at the Regional Psychiatric Centre in Saskatoon, Saskatchewan.

[11]   Ms. Reid remained seconded half-time in the Program Director Position (Clearwater) until June 30, 2000. She remained seconded in the Regional Coordinator EAP/CISM position until March of 2001.

[12]   Dorothy Reid consented to and was deployed into a PS-03 position on May 24, 2001.

[13]   Dorothy Reid was the successful candidate in the November 2000 competition for the 3 year secondment for the position of Regional Coordinator EAP/CISM. Ms. Reid began the secondment on a part-time basis in July of 2001 and full-time in September of 2001. The secondment is scheduled to end in September of 2004.

[14]   Dorothy Reid signed a Secondment Agreement for the Regional Coordinator EAP/CISM position on July 16, 2001. A revised Secondment Agreement was signed by Ms. Reid on September 12, 2001.

[15]   Dorothy Reid is paid at the PS-03 rates of pay pursuant to Appendix "A" of the SH Group Collective Agreement while she is seconded to the Regional Coordinator EAP/CISM position.

[16]   On May 23, 2002, Dorothy Reid became registered as a psychologist in the province of Saskatchewan.

[17]   Dorothy Reid requested that she receive the Terminable Allowance sometime between June 5, 2002, and July 18, 2002. On July 19, 2002, Ms. Reid was informed she was not eligible for the Terminable Allowance for Correctional Service Psychologists. This decision resulted in the grievance at adjudication.

[18]   Dorothy Reid testified that, early in 2002, the Saskatchewan Psychologists Act provided, for the first time, for the professional registration and licensing of persons holding Master's Degrees. Ms. Reid's application for registration was approved by the Saskatchewan College of Psychologists on April 18, 2002. This letter advised that ".... you meet the criteria for licensing to practice with the following areas of competency: Clinical; Counselling; Human Resource Management; Forensic." Ms. Reid tendered her fees for registration. She then successfully applied to CSC for reimbursement of these professional fees. Ms. Reid received a receipt and a registration certificate from the College on July 5, 2002. She then applied for the Terminable Allowance.

[19]   Ms. Reid stated that her qualification as a psychologist, on a daily basis, assisted in the discharge of her duties as Regional Coordinator EAP/CISM in several ways. It provided her with an understanding of the issues; assisted her in providing support and consulting with referral agents and CISM teams; supported her role as a trainer of psychologists and others on CISM teams as trainer of new CSC staff on maintaining their health in the aftermath of vicarious trauma and as trainer of referral agents in acquiring skills such as communication, listening, problem analysis, suicide risk assessments, interventions, and knowledge of community resources; enabled her to deal with compassion, fatigue, burnout, loss and grief and addiction issues. As well, Ms. Reid testified that she continued to play a role in reviewing psychological research proposals.

[20]   Ms. Reid canvassed the key activities of a psychologist, as she understood them, from a draft work description as well as from the job description, pointing out the number of aspects of her seconded responsibilities that matched the key activities of a psychologist.

Argument for the Grievor

[21]   Neil Harden, of PIPSC, submitted that a proper reading of Appendix "J" supported Dorothy Reid's entitlement claim. Her substantive position as a PS-03 is retained throughout her secondment. Under the language of article 2 (b) of Appendix "J" "... the employee shall be paid the daily amount shown below for each calendar day for which the employee is paid...". Thus, entitlement to the Terminable Allowance is not triggered by performing the duties of a psychologist, as CSC would have it. Rather, entitlement flows from being paid as a psychologist.

[22]   Further support for this interpretation of Appendix "J" can be found, by necessary inference, from article 4 of Appendix "J", which rules out the Terminable Allowance for periods when a psychologist is on leave without pay or under suspension. That means that the allowance is paid for leave with pay - such as vacation leave. So, we can imagine a CSC psychologist, on annual leave, on a beach in Mexico sipping margaritas, entitled to her daily Terminable Allowance. This is not a person who, while so engaged in rest and recreation, is "performing duties" as a psychologist.

[23]   This makes sense because it addresses what surely must be the point of the Terminable Allowance in the first place. That is, to recruit and retain licensed psychologists. By the same token, it makes sense to find Dorothy Reid to be equally entitled. As is the case with annual leave, secondment is not mentioned as an exception in article 4 of Appendix "J". And, retaining Ms. Reid, as a licensed psychologist, is surely in the interests of the CSC. Thus, the interpretive issue before me is about Ms. Reid's substantive position as a psychologist. It is not about whether she was actually performing the duties of a psychologist. As Mr. Harden put it, it is not in the CSC's interests to prevail on this reference to adjudication. Denying this grievance does not serve the CSC's need to recruit and retain licensed psychologists.

[24]   Mr. Harden granted that section 7 of the Public Service Staff Relations Act makes it plain that classification is the exclusive right of the employer. However, this is of no assistance to the CSC here because it determined that Ms. Reid was classified as a psychologist, and, paragraph 2 of the Terms and Conditions of Ms. Reid's secondment agreement asserts that "... this secondment does not affect the participant's present appointment in the home organization and the participant retains all entitlements provided under the collective agreement or compendia applicable to the group and level to which the participant holds an appointment."

[25]   In the alternative, Mr. Harden submitted that the actual duties performed in the secondment by Ms. Reid might be regarded as amounting to the performance of the duties of a psychologist. In addition to the grievor's testimony with regard to the relevance of her qualification as a psychologist to her duties as Regional Coordinator EAP/CISM, Mr. Harden reminded me that the Saskatchewan College of Psychologists had certified Ms. Reid in a number of areas, including Human Resource Management. Thus, the sort of management duties that were entailed in the Regional Coordinator EAP/CISM role were within the College's professional certification of Ms. Reid.

Argument for the Employer

[26]   Mr. Jaworski began his argument with the text of articles 1 and 2 of Appendix "J" and their unmistakable references to the performance of PS duties in the Health Services Group. In Gunn (Board file 166-2-28657), at paras. 39 and 40, J.W. Potter, Deputy Chairperson, noted that the collective agreement before him did not explicitly require that one had to be performing duties to qualify for the Terminable Allowance. While on secondment to the Regional Coordinator EAP/CISM position, the grievor was surely not performing such duties within the group.

[27]   When Ms. Reid signed the second secondment agreement on September 12, 2001, there was no Terminable Allowance for psychologists. It only kicked in on January 1, 2002. Further, she was not licensed as a psychologist at that time. Indeed, it was only since May 24, 2001, that Ms. Reid was deployed into a PS-03 position. So, there is just no available argument that she was, somehow, carrying forward into her secondment any sort of entitlement to a Terminable Allowance.

[28]   Ms. Reid understood that the secondment did not involve taking on responsibilities as a psychologist. The qualifications call for a university degree or equivalent. There is no call for a graduate degree in psychology. That Ms. Reid's qualification as a psychologist aids in the daily discharge of her Regional Coordinator's duties is of no consequence in this adjudication. Classification is the exclusive domain of the employer. [See, s. 7 of the Public Service Staff Relations Act; Brochu v. Canada (Treasury Board) (F.C.A.) [1992] F.C.J. No. 1057; and Charpentier (Board files 166-2-26197 and 166-2-26198).]

[29]   Article 2 (c) of Appendix "J" states that the Terminable Allowance does not form part of an employee's salary. In Boudreau (2002) PSSRB 84, Board Member J.P. Tessier rules, at para. 13, that the Terminable Allowance does not form part of the employee's salary. In Janveau 2002 PSSRB 2, Deputy Chairperson Marguerite-Marie Galipeau also determined that a Terminable Allowance is not pay. This is a complete answer to Mr. Harden's attempt to tie entitlement to the Terminable Allowance to salary.

[30]   Finally, with regard to Mr. Harden's policy arguments, Mr. Jaworski cited Board Member T.W. Brown's comment in Turgeon (Board files 166-2-15624 to 15639 and 166-2-15775), that there is "... no question of finding an equitable solution to the interpretation of a collective agreement".

Reasons for Decision

[31]   First, I have no jurisdiction to interfere with classification matters. I take Mr. Jaworski's point, at para. 28 above, that s. 7 of the Public Service Staff Relations Act as well as the Brochu (supra) and Charpentier (supra) decisions make it none of my business whether Dorothy Reid's qualifications as a licensed psychologist in Saskatchewan, including her licensed competency in Human Resource Management, are of daily utility in the discharge of her secondment duties as Regional Coordinator EAP/CISM. Thus, I cannot follow Mr. Harden down the road of his alternative argument, at para. 25 above.

[32]   According to Gunn, a grievor must actually perform the duties of the position, to which a terminable allowance is attached, during the period in question in order to be eligible for payment of the allowance. Though Mr. Potter sided with the bargaining agent in Gunn, in accepting that performance of duties by Gerald Gunn, during a retroactive period running right up to a month before the collective agreement mandated payment date of December 2, 1997, sufficed, he made a distinct link between entitlement to the terminable allowance and the performance of duties. I have no such link established in the evidence before me in this matter. Appendix "J" twice refers to entitlement to the Terminable Allowance for licensed psychologists in the "performance of duties" - the very thing that was found to be absent from the language of the collective agreement in Gunn. Riveting though Neil Harden's argument about entitlement to the Terminable Allowances per diem while sipping margaritas on Mexican beaches was, I do not accept its thrust. Being on annual vacation from PS duties in the Health Services Group does not equate to filling an AS-05's responsibilities on a secondment. Annual vacation entitlement does not stand alone. Rather, it rides on the coat-tails of having performed duties in the preceding months.

[33]   Third, as a consequence of article 2 (c) of Appendix "J" and Boudreau, I am not free to overlook the fact that the Terminable Allowance does not form part of the employee's salary. In this light, Mr. Harden's argument that it is the receipt by the grievor of a psychologist's salary, while on secondment to the AS-05 position, that triggers the entitlement to the Terminable Allowance is not sustainable.

[34]   Finally, Turgeon stands in the way of Neil Harden's powerful arguments, at para. 23 above, that it would make good sense to sustain this grievance as it would serve what surely must be the point of the Terminable Allowance for licensed psychologists. In other words, if recruitment and retention of such professionals remains in the best interests of the CSC, this is not a grievance which should be dismissed.

[35]   For the reasons which I have provided, this grievance is dismissed.

Ken Norman,
Board Member

SASKATOON, September 10, 2003.