FPSLREB Decisions

[1]    Laurie G. Moritz filed a grievance against his employer on July 31, 2001, requesting acting pay for duties of a higher classification level that he was required to perform. The grievance alleges that the employer's action is contrary to clause 45.07 of the collective agreement between the Canada Customs and Revenue Agency and the Professional Institute of the Public Service of Canada (PIPSC) in relation to the Audit, Commerce and Purchasing Group bargaining unit (Codes 90541/1999, 90551/1999 and 90552/1999).

[2]    Clause 45.07 of the collective agreement reads as follows:

45.07 Acting Pay

When an employee is required by the Employer to substantially perform the duties of a higher classification level on an acting basis for three (3) consecutive working days, the employee shall be paid acting pay calculated from the date on which he commenced to act as if he had been appointed to that higher classification level for the period in which he acts.

. . .

[3]    The case was referred to adjudication on February 17, 2003. The employer declined the offer of mediation on March 12, 2003. The grievance was scheduled to take place in Kamloops, B.C., on July 31 and August 1, 2003. That hearing was postponed at the request of PIPSC and a change of venue was accepted by the Board. Consequently, the hearing was re-scheduled for September 23, 2003, in Kelowna, B.C. That hearing was postponed at the request of the parties due to the forest fires in the Kelowna area at that time. Finally, the hearing took place on March 16 and 17, 2004, in Kelowna.

[4]    At the outset of the hearing, I submitted the issue of my jurisdiction to the parties in the present case, where the position held by the grievor and the one for which he requested acting pay had no job description and was not classified. That issue was put in abeyance and the parties made the presentation of this case.

[5]    The grievor works for the Canada Customs and Revenue Agency (CCRA) in the Verification and Enforcement Division, at Kelowna, British Columbia, as an Excise Tax Auditor, classified at the AU-01 group and level since 1994. At the beginning of 2001, the employer posted a notice asking for expressions of interest from employees to perform the duties of a GST/HST Pre-payment Screener/Auditor - AU-01 (Exhibit G-2). This position was open to employees occupying indeterminate positions at the AU-01 level. The GST/HST Pre-payment Screener/Auditor's main duties are described as follows:

. . .

A GST/HST Pre-payment Screener performs a pre-payment review on the pre-payment credit returns and rebates rejected to the TSO. A pre-payment review entails the following activities for each referred account:

• review of GST/HST account information,

• review of related account information including Income Tax and CAAS data,

• adjusting the individual and cumulative thresholds where appropriate,

• waiving the pre-payment return/rebate or alternatively assigning the return/rebate for audit based on an appropriate assessment of risk.

A pre-payment review may include contacting the taxpayer to ascertain additional information where appropriate. Presently, this position is budgeted to work 0.6 as a GST/HST Pre-payment Screener and 0.4 as a Prepayment Auditor. This position works closely with the AU2 GST/HST Pre-payment Screener.

. . .

[6]    No one expressed interest in that position before the March 12, 2001 deadline and the employer assigned the grievor to the position of Pre-payment Screener in June 2001. The grievor worked at the Pre-payment Screener position for one year and returned to his previous auditor position after. No specific job description existed or was classified for that position, as was recognized by the parties at the first level of the grievance process and at the outset of the present hearing. In the absence of such a job description, the grievor and management came to an agreement on the following guidelines, on April 18, 2001 (Exhibit G-3):

. . .

Guidelines re the above-noted position include the following:

• The position is rotational subject to operational requirements. It will be rotated among the AU1 GST auditors in Kelowna.

• The rotational period will be one year subject to the rotation of the AU2 credit return screener. In other words, if the AU1 and AU2 screeners were to rotate out of the position at about the same time one of the 2 screeners would have to stay on an additional 2 months. This is to ensure that we do not have 2 new screeners starting at the same time with no guidance available from an experienced screener.

• Presently this position is resourced for 60% screening and 40% auditing.

• A prepayment review may include contacting the taxpayer to ascertain additional information.

• Maintain and control the audit bank.

. . .

[7]    The grievor testified that the 60% screening and 40% auditing never applied and that he performed 100% of the screening activities for the duration of his appointment in the Pre-payment Screener position. In April 2001, the AU-01 Pre-payment Screener worked closely with the AU-02 Pre-payment Screener, who was the Team Leader, and with PM-02 employees, who performed audits for credit returns and replaced AUs on vacation. The PM-02s received acting pay at the PM-03 group and level when they worked as Pre-payment Screeners replacing the AUs.

[8]    The credit return team structure changed over the years (Exhibit E-2). On June 1, 1999, five employees at the PM-02 group and level were part of the credit return team and Rhonda Lee was the Technical Advisor/Team Leader. On April 15, 2000, Ms. Lee, acting AU-02, was assigned to the team along with four PM-02 employees and Glenn Nichols was the Team Leader. On July 3, 2001, a Team Leader, Dennis Rau, was assigned to the team (Exhibit E-3). On May 7, 2001, a fifth PM-02 employee was assigned to the team and Ms. Lee was described as being at the AU-02 group and level. On July 3, 2001, the grievor was assigned to the credit return team as an AU-01 with Ms. Lee as an AU-02 and five other employees at the PM-02 group and level. In April 2002, two AU-01 employees were appointed to the team with five PM-02 employees and Ms. Lee still at the AU-02 group and level. On January 13, 2004, a Team Leader at the MG-05 group and level was assigned to the team along with one AU-02 employee and two AU-01 employees, with nine employees at the PM-02 group and level.

[9]    The grievor requests acting pay for the time of his appointment on the credit return team from April 2001, for a one-year period, on the basis that he performed the same duties as the AU-02 employee, Ms. Lee, in the Pre-payment Screener position.

[10]    The grievor testified that a list of GST registrants who request a credit return is made and appears at the beginning of each day on the computer for the two Pre-payment Screener positions - the grievor at the AU-01 group and level and Ms. Lee at the AU-02 group and level. The files are shared equally between the two Screeners, without taking into consideration the amount of the credit returns requested. Each Screener reviews every request appearing on his/her part of the list to determine if it looks reasonable. The Screeners have access, by computer, to other information/data on each registrant to verify if the credit return requested is in the normal range for this registrant. If the Screener has any doubts, he/she can call the Registrar to get additional information. If that information does not clarify the situation, or if the request for a credit return looks abnormal, the request is then referred for an audit, which will be performed by the PM-02 auditors of the team. When the Pre-payment Screener is satisfied that the credit return seems reasonable, he/she then waives it for payment.

[11]    The grievor believes that he was performing the same duties as the AU-02 Pre-payment Screener with regards to the credit returns request list shared between the two of them. In cross-examination, the grievor specified that he did not know if the AU-02 Pre-payment Screener had a different workload from his or performed duties other than the screening of the credit returns request list.

[12]    In his testimony, the grievor specified that the work description for the AU-01 and the AU-02 audit positions could be differentiated, principally by the annual sales volumes of the taxpayers. The AU-01 conducts audits for taxpayers having annual sales volumes of three to 12 million dollars (Exhibit G-8) and the AU-02 conducts audits in 12 to 200 million dollars in annual sales volume files (Exhibit G-9). This difference in the level of classification is related to the complexity of the files, which normally increases with the annual sales volumes of a taxpayer. The higher the sales volume, the greater the number of transactions and/or the complexity of the organizational structure of the taxpayer, requiring more experience and/or skills from the auditors who will have to conduct the audits for those files.

[13]    The employer's witness stated that no relation could be made on the basis of the annual sales volumes and the GST credit returns requested by the registrants. Some registrants ask for high credit returns for a part of the year and for lower ones at other times (some businesses are more seasonal). Others, who export, request high credit returns because they pay a lot of GST on the merchandise shipped to other countries and do not collect GST from their overseas clients. For others, who are primarily importers, it is the contrary. For almost all registrants, the amount of sales in a year or in a claiming period is not related to the amount of the credit return requested.

[14]    In his testimony, the grievor specified that in September 2001, he conducted pre-screenings for seven registrants who had annual sales volumes of over 12 million dollars on a total of 562 requests (Exhibits G-10 and G-11). In one month, the percentage of pre-screened files with annual sales volumes over 12 million dollars is less than one percent of the total of the files.

[15]    Tim Gahagan, Assistant-Director of Audit since 1996, stated that the credit returns team was structured in 1999 (Exhibit G-2). Ms. Lee was assigned to the team as an acting Technical Advisor/Team Leader, at the AU-02 group and level. On April 15, 2002 Mr. Nichols, acting AU-03, became the Technical Advisor/Team Leader; he was replaced by Mr. Rau (AU-03) in that position on July 3, 2001. In July 2001, the grievor became part of the credit returns team at the AU-01 group and level, with Ms. Lee as an acting AU-02 and five other employees at the PM-02 group and level. Ms. Lee conducted pre-screening, as did the grievor. The Pre-Payment Screeners had no specific job description and the list of credit returns requested was shared between them without evaluation of the annual sales volumes of the registrants. For Mr. Gahagan, 96 percent of the files in the workload are in the PM range (less than 3 million dollars). He never authorized or asked the grievor to perform AU-02 duties on an acting basis.

[16]    Mr. Rau, a Team Leader since 2001, corroborated that both AU-01s and AU-02s are responsible for the screening of the credit returns requested. Their expertise in law, complex files and their knowledge of the business sectors is very helpful in the pre-screening tasks. Normally, all AU-02s have more experience than the AU-01 employees. He did not authorize or recommend an acting AU-2 assignment for the grievor.

Arguments

For the Grievor

[17]    The Pre-Payment Screener position had no job description and was not classified. The poster requesting expressions of interest for the Pre-Payment Screener position (Exhibit G-2) was addressed to employees occupying positions at the AU-01 group and level. The guidelines (Exhibit G-3) for the Pre-payment Screener position referred to AU-01 and AU-02 group and levels.

[18]    The grievor testified that he performed the same duties as the AU-02 in pre-screening tasks. In the evolution of the credit returns team, the AU-02 acted as a Team Leader prior to the grievor's assignment to that team. From June 2001 to May 2002, Ms. Lee (AU-02) did not have Team Leader responsibilities, which were performed by Mr. Rau. Ms. Lee was assigned only as a Pre-payment Screener and performed the same duties as the grievor. The employer never led evidence that the AU-2 Pre-payment Screener performed something different from the AU-01 Pre-payment Screener.

[19]    The work descriptions, filed as Exhibits G-8 and G-9, for the auditors at the AU-01 and AU-02 group and levels show that the two levels could be distinguished by the annual sales volumes of the taxpayers. The annual sales volumes have no relation with the amount claimed by the registrants in credit returns for GST. The grievor demonstrated that no particular difference could be made between the AU-01 and AU-02 pre-screening duties.

[20]    In the decision rendered in Beaulieu v. Treasury Board (Federal Court of Canada) 2000 PSSRB 76, the adjudicator based his conclusion on the fact that the grievor did not have to perform all of the duties of a higher classification to be entitled to acting pay. The adjudicator was satisfied that the grievor effectively stood in the higher-classified employee's shoes and performed all the duties of the higher position for the period covered by the grievance. In the case at hand, the grievor performed the same duties as the AU-02 Pre-payment Screener.

[21]    In Vanier v. Treasury Board (Revenue Canada - Customs and Excise) , PSSRB File No. 166-2-23562 (1994) (QL), the adjudicator concluded that the grievor substantially performed the duties of the higher position by performing his part in the duties assigned to the team. The fact that the letter of offer did not refer to an acting appointment did not affect the grievor's eligibility for acting pay if the conditions set out in the collective agreement were met. In the present file, the grievor performed the same duties as the AU-02 Pre-payment Screener and he should be eligible for acting pay, notwithstanding that the expression of interest poster or the guidelines did not refer to an acting appointment.

[22]    The grievor cited the following decisions: Wilson-St.Jean v. Treasury Board (Department of Labour) , PSSRB File No. 166-2-13827 (1983) (QL); Reiner v. Treasury Board (Agriculture Canada) , PSSRB File No. 166-2-13808 (1983) (QL); Cuthill v. Treasury Board (Ministry of Transport) , PSSRB File Nos. 166-2-12640 and 12641 (1982) (QL); and Bégin v. Treasury Board (Revenue Canada - Taxation) , PSSRB File Nos. 166-2-18911 to 18917 (1990) (QL).

For the Employer

[23]    The grievor based his grievance for acting pay on the assumption that he performed the same duties as an AU-02 Pre-payment Screener. He did not prove that he performed AU-02 tasks when he conducted pre-screening. The absence of evidence on the level of the duties performed brings the grievance to a request for classification and the adjudicator does not have jurisdiction in that area.

[24]    The employer has the authority to determine the organization of the Public Service and to assign duties to and classify positions therein, and the Public Service Staff Relations Act (PSSRA) recognizes the rights in section 7. The employer assigns duties of pre-screening to AU-01 and AU-02 employees in application of these rights.

[25]    Clause 45.07 of the collective agreement specifies that the right to acting pay is related to the performance of the duties of a higher classification level. In Cameron v. Treasury Board (Solicitor General - Correctional Service) , PSSRB File No. 166-2-25643 (1994) (QL), the adjudicator specified that the burden of proof rested with the grievor, who had to show that the employer asked the grievor to perform duties of a higher classification and that the grievor performed those duties. In the case at hand, the employer testified to the fact that it had not requested the grievor to perform duties of a higher classification or authorized acting. The grievance should be denied on the basis that the grievor did not discharge his burden of proof.

[26]    The decision rendered in Smith v. Treasury Board (Solicitor General Canada - Correctional Service) , PSSRB File No. 166-2-26714 (1996) (QL), considered overlapping responsibilities between two substantive classifications. The adjudicator concluded that, even if the grievor performed a task that could be carried out by the incumbent position or a higher position, this did not have the effect of transforming the work into the substantial performance of the duties of a higher position. The present case is similar to Smith (supra) and even if the two Pre-payment Screeners performed the same tasks, this does not constitute proof that the grievor performed higher classification duties.

[27]    In Beaulieu (supra), the adjudicator allowed the grievance on the basis that the grievor proved that he performed substantially the functions of a higher classification. In the present case, the grievor did not prove that he performed higher classification duties in conducting pre-screening as an AU-02. If we take the audit job description as reference, the grievor had to demonstrate that he was responsible for files over 12 million dollars. He proved that less than one percent of the files are over those gross sales volumes and, therefore, he cannot be considered as substantially performing higher classification duties.

Rebuttal by the Grievor

[28]    It was submitted that an adjudicator takes jurisdiction in acting pay grievances in cases where the position held by the grievor is without a job description (Cuthill (supra)). In Cameron (supra), the acting pay request was for a period prior to the reclassification of the position.

Reasons for Decision

[29]    In summary, the grievor was requested to perform the duties of GST Pre-payment Screener starting in June 2001. That appointment stood for one year, after which he returned to his auditor position. The grievor, who was classified as an AU-01 in his auditor position, worked as a Pre-payment Screener with the AU-02 auditor, Ms. Lee, as the other Pre-payment Screener in the work team. No official job description existed for the positions of Pre-payment Screener and these positions were not the object of a classification decision.

[30]    The poster requesting expressions of interest (Exhibit G-2) stated that the GST/HST Pre-payment Screener/Auditor was at the AU-01 group and level and it was open to employees occupying indeterminate positions at the AU-01 group and level. The poster specified that the position was budgeted to work 0.6 as a GST/HST Pre-payment Screener and 0.4 as a Pre-payment Auditor. The employee would work closely with the AU-02 GST/HST Pre-payment Screener. The grievor and his manager agreed on general guidelines for the Pre-payment Screener/Auditor - AU-01 position on April 18, 2001, in the absence of a job description (Exhibit G-3). Those guidelines specified that this position is resourced at 60% screening and 40% auditing. The evidence shows that the grievor conducted screening 100% of the time and no auditing for all his period of work in that position.

[31]    From the evidence, I infer that the parties recognize the GST/HST Pre-payment Screener/Auditor position to be a different one from the Excise Tax Auditor position, notwithstanding that the key activities for both Screeners included screening and auditing tasks.

[32]    The grievor based his argument, in part, on the contents of the work descriptions for position AU1003, Excise Tax Auditor (AU-01) and for position AU1002, Excise Tax Auditor (AU-02), which were filed as Exhibit G-8 and G-9.

[33]    The grievor tried to make a comparison with the auditor's job description to imply that the distinction between AU-01 and AU-02 auditors, on the basis of the annual sales volume, should apply to the AU-01 and AU-02 Pre-payment Screener positions. During the hearing, it became clear that the annual sales volume had no relation to the amount of credit returns requested by the registrants, for both cases. The annual sales volume makes no difference in the AU-01 and the AU-02 pre-screening responsibilities.

[34]    The grievor submitted that the pre-payment credit returns request list was shared equally between the AU-01 and the AU-02 Pre-payment Screeners, without taking into consideration the amount claimed by the registrants. Each Pre-payment Screener proceeded, after the verification of his/her part of the list, to evaluate if he/she would agree to the payment of the credit returns or if he/she needed further information from the registrants. In some cases, the Pre-payment Screener could send a request to the Team Leader for an audit. It looks as if both Pre-payment Screeners proceeded to do the same work from their part of the pre-payment credit returns request list.

[35]    In cross-examination, the grievor admitted that he does not know if the AU-02 Pre-payment Screener had a different workload from his or if the AU-02 Pre-payment Screener performed other duties beyond the screening of the credit returns request list.

The Issue of Jurisdiction

[36]    On the issue of jurisdiction, the decision of the Federal Court of Canada rendered on December 15, 1993 in Stagg v. Canada (Treasury Board) , [1993] F.C.J. No. 1393 (FCTD) (QL), is of interest. Ms. Stagg requested acting pay on the basis that she assumed all the duties of her position prior to the reclassification of her position. In that case, the adjudicator concluded that he lacked jurisdiction to grant the retroactive remuneration requested on the basis that this constituted a retroactive reclassification of the grievor's position. The Court reversed the adjudicator's decision for the following reasons:

. . .

The adjudicator based his decision that he lacked jurisdiction to grant the applicant's grievance upon an erroneous finding of law and fact to the effect that a grant of retroactive remuneration for the period from January 1, 1989 to July 3, 1990 constituted a retroactive reclassification of the applicant's position. The relief sought by her grievance was, rather, within the contemplation of clause M-27 of the master agreement. The adjudicator also erred in law in finding that the grant of the relief sought in the applicant's grievance was contrary to section 7 of the Public Service Staff Relations Act. That provision, validly enacted according to its tenor and scope, was simply not engaged in these proceedings. The employer's posture herein leads only to the nefarious notion that after imposing more onerous duties upon employees and according the commensurate upgrade of classification of position - proper and exclusive employer's functions, the employer can then, by dragging its feet on remuneration, obtain the employees' extra services free for a time by just delaying the commensurate raise in remuneration. This is a notion philosophically akin to that of slavery or forced labour because it exploits employees' (increased) work without remuneration. . . .

. . .

[37]    That decision is cited in Chadwick v. Canada (Attorney General) , 2004 F.C. 503. In that case, the adjudicator had dismissed the grievance on jurisdictional grounds. The Court concluded as follows:

. . .

         In my opinion, the adjudicator was incorrect in interpreting the grievance as one that related to reclassification of the applicant's position or the organization of the public service. The applicant's grievance was based on her belief that clause G1.08 of her collective agreement entitled her to acting pay during the period that she was substantially performing the duties of a VM-02 position at the St. Thomas office. I agree with the applicant that the adjudicator erred in refusing to accept and exercise his jurisdiction of her grievance.

         Dr. Chadwick was grieving her claim that her employer failed to apply the collective agreement. Clause G1.08 of that agreement makes reference to the situation where an employee is required by the employer to substantially perform the duties of a higher classification level on an acting basis for at least ten, consecutive days. By necessity, a comparison of different classification levels would need to be undertaken in order to determine whether the grievor's work falls within Clause G1.08. This Clause also includes a temporal element, in that an employee seeking acting pay pursuant to it will only receive such pay for a specified time period during which time he or she substantially performed the duties of a higher classification level. Had she been seeking the higher pay indefinitely, I might have found otherwise. However, that is not the case before me. The applicant claims that she was required to substantially perform the duties of the VM-02 position from March 31, 1998 through to July 30, 2001 and should receive acting pay for that specified time period. This dispute concerns remuneration rather than classification.

. . .

         As found by Justice Muldoon, section 7 of the PSSRA "simply is not engaged in these proceedings". Section 7 cannot be used to relieve employers of financial commitments that are entrenched in a collective agreement and voluntarily entered into through the collective bargaining process: Public Service Alliance of Canada v. Treasury Board (1987), 76 N.R. 229 (F.C.A.).

. . .

         In the present case, there is no evidence presented to this Court that the applicant had previously sought a re-classification of her position, either through informal inquiries or through a classification grievance. It does not appear, therefore, that her grievance for acting pay that was forwarded to the PSSRB pursuant to subsection 92(1)(a) was a backdoor attempt to achieve indirectly through adjudication that which could only be achieved through a different grievance procedure related to classification, pursuant to section 91 of the PSSRA. Furthermore, the applicant is not requesting acting pay up to the present time, but acting pay for a specific time period when she believes that she was required to substantially perform the duties of a VM-02 position for at least ten consecutive days. Such a request is clearly one for remuneration and grounded in Clause G1.08 of her collective agreement. This matter is correctly within the jurisdiction of an adjudicator of the PSSRB, and the adjudicator in this case erred in determining it not to be so.

. . .

[38]    Those decisions can receive application in the present case, where the Pre-payment Screener/Auditor position was without a job description or a classification decision. The grievor, in the present case, requested acting pay for the specific period of time for which he was assigned to that position. He alleges that he was performing the same duties as the Pre-payment Screener/Auditor paid at the AU-02 group and level and that he received remuneration on the basis of the AU-01 pay level. That request is one for remuneration and grounded in clause 45.07 of the collective agreement.

[39]    Consequently, following the principle established by the Federal Court in the Stagg (supra) and Chadwick (supra) decisions, I have jurisdiction to determine if the grievor substantially performed the duties of a higher level position when he was assigned to the Pre-payment Screener/Auditor position for the period of one year starting in June 2001. It is up to the employer to provide to an employee a complete and current statement of the duties and responsibilities of the position following clause 20.01 of the collective agreement. That statement of duties is necessary to assess the classification level for the position. In the present file, the employer did not provide a current statement of duties and did not proceed to the classification of the Pre-payment Screener/Auditor position, which was in place at least since 1999 (Exhibit E-2) and was modified several times since then. The employer cannot hide itself behind its own decision not to provide statements of qualifications or classification for the Pre-payment Screener/Auditor positions to avoid remunerating the employees assigned to those positions at the proper pay level.

Analysis on Issue of Acting

[40]    It is established case law that a grievor has the burden to prove that he/she substantially performed the duties of a higher-classified position. In the present case, it was not contested that the employer requested the grievor to perform the Pre-payment Screener duties and the issue is related only to the level of duties performed in that position.

[41]    The grievor, in performing pre-screening duties, clearly performed the duties specified in the expression of interest poster and also in the guidelines. Even if the AU-02 Pre-payment Screener performed the same duties on his/her part of the list of credit returns requested, that does not mean that those duties are of a higher level. The grievor, in performing the duties specified in the expression of interest poster and/or in the guidelines agreed to on April 18, 2001, was performing the duties of his position. He bore the burden of demonstrating that those duties are of a higher classification level. The evidence submitted at the hearing on that issue is by comparison with the statement of duties for the Excise Tax Auditor classified at the AU-01 group and level (Exhibit G-8) and the Excise Tax Auditor classified at the AU-02 group and level (Exhibit G-9).

[42]    Principally, the evidence shows that the annual sales volumes of taxpayers is the main component that can distinguish an AU-01 Pre-payment Screener Auditor position from an AU-02s. The AU-01 will be responsible for taxpayers having annual sales volumes of three to 12 million dollars and the AU-02, for taxpayers having annual sales volumes of 12 to 200 million dollars. This comparison cannot receive application for the Pre-payment Screener/Auditor positions because the amount of credit returns claimed by the registrants is not related to the annual sales volumes. The allegation that the AU-01 Pre-payment Screener assumes duties of the AU-02 level on the basis of the annual sales volumes is not supported by the evidence.

[43]    The evidence shows that the duties assumed by the grievor in relation with pre-payment review are described in the notice of interest poster (Exhibit G-2) and are included in the guidelines written by agreement for the AU-01 Pre-payment Screener position. Those documents are not formal statements of duties on the basis of clause 20.01 of the collective agreement but clearly indicate that the duties in relation with pre-payment review are within the ambit of his AU-01 Pre-payment Screener/Auditor position.

[44]    The grievor submitted that he performed the same duties as the Pre-payment Screener who was remunerated at the AU-02 group and level. His testimony specified that he performed the pre-screening on 50% of the credit return requests list. But, in cross-examination, the grievor admitted that he did not know if the AU-02 Pre-payment Screener had a different workload from his or performed duties other than the screening of the credit returns requests list. On that point, the grievor bore the burden of demonstrating that he performed the duties of a higher classification level. It was up to him to show the duties of the higher classification level that he allegedly assumed. He did not discharge his burden when he was unable to specify if the screening of the credit returns request list formed a substantive part of the duties of the AU-02 screener position.

[45]    The overlapping of responsibilities between the two AU Pre-payment Screener positions is demonstrated by the evidence in relation with the screening of the list of credit returns requests. I am not convinced that those duties and responsibilities can be considered as substantial performance of the duties of an AU-02 Pre-payment Screener position. The grievor was unable to describe completely the duties and responsibilities of the AU-02 Pre-payment Screener position and, consequently, did not prove that the duties related to the screening of that list is an important part of the higher position. It was up to the grievor to demonstrate that when he performed the screening of the list, he was assuming substantially the duties of a higher classification level as prescribed in clause 45.07. I agree with the following conclusion noted in Cameron (supra) which was restated in Smith (supra), and which can receive application in the present case:

. . .

. . . the fact that the grievor performed a task which could be done by the incumbent of an AS position or an FI position does not have the effect of transforming the work into the "substantial" performance of the duties of an FI position. . . .

. . .

[46]    Accordingly, for the reasons noted above, the grievance is denied.

Léo-Paul Guindon,
Board Member

OTTAWA, October 13, 2004.