FPSLREB Decisions
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Public Service Staff Relations Act
- Date: 2005-02-04
- Files: 166-2-32829 to 32832
- Citation: 2005 PSSRB 12
Before the Public Service Staff Relations Board
BETWEEN
KELLY DOYLE MACDONALD, TAMMY GIROUARD, ISABELLE ELLIOTT, BETH ANN ROSSIT
Grievors
and
TREASURY BOARD
(Department of Human Resources and Skills Development)
Employer
EXPEDITED ADJUDICATION DECISION
Before: Yvon Tarte, Chairperson
For the Grievor: Cécile La Bissonnière, Public Service Alliance of Canada
For the Employer: Serge Viens
Note: The parties have agreed to deal with the grievance by way of expedited adjudication. The decision is final and binding on the parties and cannot constitute a precedent or be referred for judicial review to the Federal Court.
Heard at Ottawa, Ontario,
January 28, 2005.
[1] These grievances concern the interpretation of the Maternity Allowance Provisions of the Program and Administrative Services collective agreement entered into between the Treasury Board and the Public Service Alliance of Canada. Clauses 38.02 and 40.02 of the agreement are at issue.
[2] The two clauses provide for a maternity allowance supplement or top-up in certain circumstances. The clauses require that the beneficiaries of the top-up allowance return to work following maternity leave and then work for a period equal to the period of maternity leave.
[3] The clauses also contain provisions dealing with failure to return to work and failure to work the period referred to above as follows:
(C) should she fail to return to work in accordance with section (A), or should she return to work but fail to work for the total period specified in section (B), for reasons other than death, lay-off, early termination due to lack of work or discontinuance of a function of a specified period of employment that would have been sufficient to meet the obligations specified in section (B), or having become disabled as defined in the Public Service Superannuation Act, she will be indebted to the Employer for an amount determined as follows:
(allowance received) x remaining period to be worked following her return to work) [total period to be worked as specified in (B)]
however, an employee whose specified period of employment expired and who is rehired by the same department within a period of five (5) days or less is not indebted for the amount if her new period of employment is sufficient to meet the obligations specified in section (B).
[4] The parties at the hearing filed the following Statement of Agreed Facts:
[1] During 2001/2002, the grievors were on maternity and/or parental leave and received the top-up allowance provided for under article 38.02 and/or 40.02 of the Program and Administrative Services Collective Agreement.
[2] All were informed of requirement to repay portions of the top up should they not fulfill the conditions listed in section 38.02(a)(iii) and/or 40.02(a)(iii) of the collective agreement, and the risk involved as term employees. Nonetheless, they all requested the maternity and/or parental allowance and signed an agreement stating that they recognized the implications of clause 38.02(a)(iii)(C) and/or 40.02(a)(iii)(C) should they not return to work for a period equal to the period in which they were in receipt of the maternity/paternity allowance.
[3] The grievors were all CR-03 term employees working at the Miramichi Investigation Centre (MIC) when their employment was terminated effective November 27, 2002 and their contracts not renewed due to budgetary restraints and not due to a lack of work.
[4] The employees are grieving the fact that they must repay portions of their top-up amounts as outlined in the agreement they signed in accordance with article 38.02 and/or 40.02 of the collective agreement.
[5] The grievors hold the view that they should not be penalized because the employer failed to renew their term contracts due to budgetary constraints. The grievors were all ready and willing to abide by the terms of clauses 38.02 and 40.02.
[6] The employer tendered documents showing that the grievors had acknowledged that they understood the maternity/parental leave provisions of the collective agreement, as well as documents showing the grievors recognized that the receipt of the top-up allowances did not constitute a guarantee of continued term employment.
[7] The provisions of the collective agreement referred to above are clear and unambiguous. It is evident that the grievors do not fit under any of the exemptions listed in subclauses 38.02(c) or 40.02(c).
[8] Had the parties wanted the non-renewal of term employment to give rise to an exemption from repayment of all or a portion of the allowance, they would have said so in the agreement. Since they have not, the grievances must be denied.
Yvon Tarte,
Chairperson
OTTAWA , February 4, 2005.