FPSLREB Decisions

[1]   Ronda Sargeant, an auditor, level 1 (AU-01), filed a grievance on April 2, 2002, claiming acting AU-02 pay. At the time of filing the grievance, the grievor worked for the Canada Customs and Revenue Agency (CCRA). As a result of the government reorganization announced on December 12, 2003, the CCRA changed its name to the Canada Revenue Agency (CRA). At the commencement of the hearing, the grievor's representative stated that acting pay was being sought for the period from March 2, 2001, to September 21, 2001, and the total payment requested was $3,825.27.

[2]   The employer's representative filed a preliminary objection on the basis of timeliness. In a letter to the Public Service Staff Relations Board (the Board), dated November 24, 2004, the employer stated, in part:

. . .

Please be advised that the Employer intends to raise a preliminary objection to the jurisdiction of the Board to hear the above-noted grievance on the basis that the grievance was not filed within the time limits specified in the Collective Agreement. The Employer has consistently maintained its position that the grievance is untimely. The grievor is grieving an action taken by her Team Leader on May 10, 2001. She filed her grievance on March 27, [sic] 2002.

. . .

[3]   On behalf of the grievor, Mr. Eadie stated that the grievance was filed within the collective agreement timelines and it was not necessary to seek an extension of time. I reserved judgement on this issue.

[4]   The parties requested an exclusion of witnesses and I granted this request. The parties then presented their evidence with respect to the substantive matter.

[5]   Following the completion of the evidentiary portion, Ms. Sargeant raised an issue that she had noted during the proceedings. She stated that a staff relations officer had been present throughout the evidence and had taken notes on behalf of the employer. When the employer called its witnesses, she observed that the witnesses used language that was the same as or similar to the one she had used in her testimony.

[6]   The employer's counsel replied that it would have been preferable if the grievor's representative had raised this issue privately, in advance, so it could be discussed and possibly resolved. However, I was given the assurance that no discussions with witnesses had taken place prior to their testimony.

[7]   Mr. Eadie replied that he knew nothing of this allegation ahead of time and therefore he could not have raised it with the employer's counsel.

[8]   I reserved on this matter. Now that I have reflected on it, I find nothing hinges on this issue. This was a situation where the facts were not in dispute and the parties could well have proceeded by an agreed statement of fact. This may have been one of those occasions where I was overly cautious in granting a joint request for the exclusion of witnesses; however, one only knows this when all is said and done. In the end, I am satisfied that the facts, which were not in dispute, came out fairly and openly and led, inexorably, to the ultimate findings I have made.

Evidence

[9]   During the period Ms. Sargeant seeks to be paid acting pay, she was in the position of criminal investigator, AU-01, having started those duties on or about January 1, 2001.

[10]   As a criminal investigator, Ms. Sargeant pursued leads to determine if there was enough information to bring criminal charges against taxpayers who were attempting to defraud the government.

[11]   At the time of the dispute, Ron Jonikas was Ms. Sargeant's supervisor, and he assigned work to the grievor, as well as to other members of his team (see Exhibit E-3 for the organization chart).

[12]   Mr. Jonikas explained that once an investigator is assigned a case, the investigator completes a case complexity rating form (Exhibit E-4). This form assigns a variety of points to seven different complexity categories. The points are then totalled to determine the level of complexity of the case and the level of the investigator who will be assigned to the case. Once the investigator totals the points, the form is given to the team leader and if the team leader agrees with the point assignment, the document is signed off.

[13]   The form is completed before the taxpayer knows that he or she is being investigated, and some of the categories relate to events that may or may not occur at a much later date. The knowledge on how to rate such factors comes with experience and an understanding of the background material in the file, explained Mr. Jonikas. There is also a manual available which explains each category and the method of assigning points (Exhibit G-2).

[14]   Late in February or early in March 2001, the grievor was assigned a file which was an offshoot of another investigation the Division was conducting. This would have been the grievor's first full-scale investigation since commencing her duties in January.

[15]   The grievor was asked to complete the Case Complexity Rating Form and she did so (Exhibit G-4). When she added up the points they totalled 30, and a score of 30-42 points meant the case should be assigned to either an AU-02 or a PM-04.

[16]   Ms. Sargeant gave the completed form to Mr. Jonikas and he reviewed the rating, made some revisions, and arrived at a total score of 27 points (Exhibit G-3). This total meant the file could be assigned to an AU-01 or a PM-03. Ms. Sergeant was assigned the file and performed the required tasks. She was paid at the AU-01 level.

[17]   Ms. Sargeant explained there are 2 areas of disagreement she has between her completed form and the revised one of Mr. Jonikas.

[18]   The first area of disagreement is the use of a computer search and evidence recovery specialist (CSER). In the case complexity rating manual (Exhibit G-2) at section 19.2.3(d), it discusses how to award points for the use of a CSER. This section states:

19.2.3(d) Use of CSERs during search

If an investigator trained in computer search and evidence recovery is required for the search, because books and records are expected to be computerized, record 2 points. A computer used for personal purpose only does not qualify as a complicating factor.

Ms. Sargeant felt she should receive 2 points for this factor because a CSER was used in the search of the taxpayer's home.

[19]   Mr. Jonikas explained that the 2 points are given in cases where it is anticipated that books and records will be found on the taxpayer's computer. The CSER will recover such records and they will be used in the criminal proceedings. If a computer is discovered in the search of the taxpayer's residence, but it is for personal use only, the 2 points are not awarded, as per the manual. In the case assigned to Ms. Sargeant, there was no indication, at the time she was assigned the file, that books and records would be computerized on the taxpayer's computer. Although a CSER was present when the search took place, no computerized records were found. The computer was for personal purposes only. Mr. Jonikas did not award the 2 points to this file.

[20]   The other area of disagreement concerned the number of locations to be searched. Section 19.2.3(b) of the manual (Exhibit G-2) covers this factor, and states, in part:

. . .

b) Number of Locations to Search

Count one point if the planned search and seizure covers one location. If no search is necessary record "0" for this section.

Count an additional point if the planned search and seizure covers two to five locations, including the taxpayers named in the heading of the information(s) and the accountant's office(s), excluding safety deposit boxes and any locations controlled by the CCRA.

. . .

Ms. Sargeant felt a search should take place at the taxpayer's home, as well as at the office of the taxpayer's accountant. She gave herself 2 points for this factor.

[21]   Mr. Jonikas stated there was no need to search the accountant's office in this situation, and what is known as a "requirement letter" would suffice, so one point was allocated to this factor because the taxpayer's home was the only location to be searched. In fact, Ms. Sargeant prepared the search plan herself and it shows only one location to be searched (Exhibit G-6). When all was said and done, only one search took place for this file, that being the home of the taxpayer.

[22]   When the rating form was returned to Ms. Sargeant on May 10, 2001 (Exhibit G-3), she did not question the final point allocation.

[23]   Ms. Sargeant left the investigation unit on September 21, 2001. She testified that, after she left, the file was turned over to a colleague, Doug Houselander, who was a PM-04. The complexity rating form shows that a PM-04 would be at the same level as an AU-02 (Exhibit G-4).

[24]   Mr. Jonikas explained that in September 2001, Mr. Houselander was part of a team assigned to the file Ms. Sargeant was working on. At that time, Mr. Houselander was a PM-03. Sometime after, in or about December 2001, Mr. Houselander became a PM-04. There is no problem with assigning a file at a lower level to a higher-level employee, explained Mr. Jonikas, as it is only the reverse situation which would require the payment of acting pay.

[25]   Some time after Ms. Sargeant left the unit, she overheard a conversation about acting pay and the fact that an accountant's office was always searched and felt she had to challenge Mr. Jonikas' decision. She wrote to Carl Gomes, Mr. Jonikas' supervisor, on March 12, 2002, and explained her case (Exhibit E-8).

[26]   Mr. Gomes sought input from Mr. Jonikas and received his report (Exhibit E-9), then replied to Ms. Sargeant on March 21, 2002, saying, in part, that the case was properly rated (Exhibit E-10).

[27]   Ms. Sargeant filed her grievance after receiving Mr. Gomes' reply.

Argument for the Grievor

[28]   With respect to the timeliness issue, Ms. Sargeant could not have filed her grievance any earlier. When she was made aware of the fact that searches always included an accountant's office, she queried this, and immediately upon getting a response, she grieved. This is within the time limits specified in clause 34.08 of the applicable collective agreement. She could have filed a grievance earlier requesting the 2 points for the use of a CSER, but that would not have enabled her to reach the necessary threshold of 30 points in order to be eligible for acting pay.

[29]   There is no prejudice to the employer in this situation, so timeliness should not be a bar to proceeding.

[30]   Ms. Sargeant was assigned to and worked on the file from March 2, 2001, until September 21, 2001. This fact is not in dispute. The work was under-rated in the complexity rating form and the work was, in reality, AU-02 work. She meets the conditions set out in clause 45.07 of the collective agreement for acting pay.

[31]   Initially, Ms. Sargeant completed the case complexity rating form and assigned 30 points to the file. This is seen in Exhibit G-4. Ms. Sargeant then gave the form to her supervisor, Mr. Jonikas, for approval.

[32]   Mr. Jonikas reviewed the form and revised the point total to 27 and returned the file to Ms. Sargeant to perform the tasks. She did so; however, she feels Mr. Jonikas has made 2 errors in his revision and it is these two errors that Ms. Sargeant seeks to correct.

[33]   First, a CSER was used in the search of the taxpayer's residence; however, Mr. Jonikas did not award any points for this when he revised the form. The rating manual allows 2 points when a CSER is used, so 2 additional points should be awarded.

[34]   Second, Ms. Sargeant stated that, previously, whenever a target had an accountant, a search was always done of the accountant's office. Mr. Jonikas stated a requirement letter would suffice, yet this very issue was being challenged in the courts as per R. v. Jarvis, [2002] 3 S.C.R. 757. Mr. Jonikas would have been aware of this case, and all its attendant history, and should have awarded 2 points, anticipating that a search of the accountant's office would be necessary.

[35]   The assignment of the case to Mr. Houselander is another factor. Initially, Mr. Houselander was a PM-03; then, shortly after taking on Ms. Sargeant's file when she left, he became a PM-04. The PM-04 is equivalent to an AU-02 position (see Exhibit E-4).

[36]   Counsel for the grievor referred to the following cases: Guillemette and Treasury Board (Canadian Space Agency), PSSRB File No. 166-2-23827 (1993) (QL); Beaulieu v. Treasury Board (Federal Court of Canada), 2000 PSSRB 76; R. Bégin, N. Fortin, S. Gaudreault, V. Girard, R. Munger, A. Roberge and P. Tremblay v. Treasury Board (Revenue Canada-Taxation), PSSRB File Nos. 166-2-18911 to 18917 (1990) (QL); Cuthill v. Treasury Board (Ministry of Transport), PSSRB File Nos. 166-2-12640 and 166-2-12641 (1982) (QL); Vanier v. Treasury Board (Revenue Canada - Customs and Excise), PSSRB File No. 166-2-23562 (1994) (QL) and R. v. Jarvis, [2002] 3 S.C.R. 757.

Argument for the Employer

[37]   Throughout the grievance procedure, the employer has stated that the grievance is untimely. When the grievor left the investigation unit in September 2001, she knew a CSER had been used in the search and she knew she had not been given points for the use of a CSER, yet she did not grieve. She left the unit; then, some eleven months later, she grieved. This is clearly untimely.

[38]   The employer would be prejudiced by proceeding on an untimely grievance because there must be some assurance of finality when these types of forms are completed.

[39]   When the grievor moved into the investigation unit, she had no prior experience in investigations. This was her first file, and it was a file generated as an offshoot of another file. Additionally, it was the first time Ms. Sargeant completed a case complexity rating form.

[40]   The grievor completed the search plan (see Exhibit G-6) and the plan says the search would be restricted to the taxpayer's residence. There was no need to search the taxpayer's accountant's office. Mr. Jonikas felt a requirement letter would suffice, and that is exactly what was done. No basis existed for executing a search warrant on the accountant's office, and when the matter was reviewed by Headquarters, no changes were made to the search warrant. She received her 1 point for this factor, in accordance with the manual.

[41]   With respect to the use of a CSER, although one was used, the information found on the taxpayer's computer was not relevant to the case, as the computer was for personal use only. Again, as per the manual, Ms. Sargeant appropriately was not credited with 2 points.

[42]   When Ms. Sargeant left the investigation unit in September 2001, her file was transferred to Mr. Houselander. At that time, Mr. Houselander was a PM-03. He became a PM-04 in December 2001, and there is no evidence to indicate that he received acting PM-04 pay when he took over the file.

[43]   Counsel for the employer referred to the following cases: Cameron v. Treasury Board (Solicitor General - Correctional Service), Board File No. 166-2-25643 (1994) (QL); Currie v. Canada Customs and Revenue Agency, 2004 PSSRB 75; Gray v. Treasury Board (Revenue Canada - Customs, Excise and Taxation), Board File No. 166-2-28685 (1999) (QL); Lindeblom v. Treasury Board (Fisheries and Oceans), Board File No. 166-2-26336 (1996) (QL); Lusted v. Treasury Board (Transport Canada), Board File No. 166-2-21370 (1991) (QL); Moritz v. Canada Customs and Revenue Agency, 2004 PSSRB 147; Ouellet v. Treasury Board (Solicitor General - Correctional Service), 2003 PSSRB 63; Sallenback and Treasury Board (Solicitor General - Correctional Service), Board File No. 166-2-28734 (1999) (QL); Sittig v. Treasury Board (Transport Canada), Board File No. 166-2-24117 (1996) (QL); and Smith v. Treasury Board (Solicitor General Canada - Correctional Service), Board File No. 166-2-26714 (1996) (QL).

Reasons for Decision

[44]   The facts of this case are straightforward and uncontentious. Ms. Sargeant worked on a file as required from March to September 2001 and was paid at the AU-01 rate of pay. She claims the work was AU-02 work and, as such, she should be paid acting pay for the time she actually worked on the file.

[45]   Ms. Sargeant's claim is grounded in the belief that the case complexity rating form authorized by her supervisor, Mr. Jonikas, contains two errors, both of which resulted in her being paid at the AU-01 level.

[46]   In addition to claiming that the grievance should be dismissed for want of jurisdiction, the employer also says the two factors in contention were properly rated.

[47]   I will set the timeliness issue aside for the moment and deal with the merits of the claim.

[48]   The only two areas of disagreement Ms. Sargeant has with the ratings Mr. Jonikas ultimately assigned to the case complexity rating form concern the points (or lack thereof) for the use of a CSER, and the awarding of one point instead of two points for the number of locations to search.

[49]   In order to succeed in her grievance, Ms. Sargeant must successfully argue that Mr. Jonikas was incorrect in his assignment of points to both of these factors. Lack of success in either one would be fatal to her case, as she must increase her point total from 27 to 30 in order to be paid acting pay.

[50]   Ms. Sargeant received one point for the factor "Number of Locations to Search". The manual (Exhibit G-2) at section 19.2.3b) states, in part:

. . .

Count one point if the planned search and seizure covers one location...

. . .

[51]   There is no dispute that the search plan covered one location only, that being the taxpayer's residence (Exhibit G-6).

[52]   When all was said and done, only one location was searched, that being the taxpayer's residence. There is simply no justification, as I see it, to increase the point count here from the 1 point which Ms. Sargeant has received to anything higher. She received the proper allocation for this factor.

[53]   Ms. Sargeant claims that in virtually all other previous cases the accountant's office was also searched, so she should receive 2 points for this factor in anticipation that the accountant's office would also be searched.

[54]   I simply do not accept this argument. In my view, whether or not every other situation involved the searching of an accountant's office or not has no relevance to this situation. The manual itself contemplates no search being required (0 points), a search of 1 location (1 point), a search of 2-5 locations (2 points) and so on (see Exhibit G-2). When 1 location is searched, as was the case here, the employee receives 1 point on the case complexity rating form. That is exactly what Mr. Jonikas did, and I agree with this result.

[55]   Based on this alone, the grievance must fail. However, if I had to rule on the points allocated for the use of a CSER, again I can find no fault with the points Mr. Jonikas assigned. Section 19.2.3d) of the case complexity rating manual states, in part (Exhibit G-2):

...A computer used for personal purpose only does not qualify as a complicating factor.

[56]   Ms. Sargeant says that a CSER was used in the search, so she should receive the 2 points. There is no dispute that a CSER was used in the search. However, the evidence also indicated that the computer that was searched in the taxpayer's home did not contain books and records and was used for personal purposes only. I find that Mr. Jonikas was correct in not assigning 2 points for this factor.

[57]   Based on the above, I do not find it necessary to deal with the timeliness issue in this case. The grievance cannot be sustained based on my determination of the merits of this case.

[58]   For all of these reasons, this grievance must be denied.

Joseph W. Potter,
Vice-Chairperson

OTTAWA, February 18, 2005.