FPSLREB Decisions

[1]    The grievor, Raymond J. Temmerman, filed two grievances against his employer, Human Resources Development Canada (HRDC), on April 3, 2002 (PSSRB File No. 166-2-32741) and on May 2, 2002 (PSSRB File No. 166-2-32742).

[2]    In the first grievance, the grievor requests acting pay at the CS-02 group and level for three specific periods:

• from July 4, 1995, to April 30, 1997, for work he performed at HRDC in Morden, Manitoba, and at the Agri-Food and Agriculture Canada Research Station;

• from January 2 to April 30, 1998, for work he performed at HRDC on the Windows 95 rollout and end-user staff training; and

• from January 4 to March 31, 1999, for work he performed at HRDC on the Net Wizard implementation and training sessions for systems staff.

[3]    At the outset of the hearing, the grievor withdrew his request for acting pay for the first period (July 4, 1995, to April 30, 1997).

[4]    In the second grievance, the grievor is contesting the position description for the IM/IT Micro-Computer Specialist position dated May 2, 2002, with an effective date of April 1, 1998.

[5]    Counsel for the employer raised a preliminary objection at the outset of the hearing regarding the following elements:

1. The grievor filed a first grievance against his employer on October 23, 2000, requesting a rewriting of his work description. At the second level of the grievance procedure, the employer agreed to rewrite the work description, which was signed by the grievor on February 27, 2002. On May 2, 2002, the grievor filed another grievance contesting the effective date of the work description that he had accepted in February 2002. By doing so, the grievor wanted to change his original work description grievance and this is against the principle stated by the Federal Court of Appeal in James Francis Burchill v. Attorney General of Canada, [1981] 1 F.C. 109.

2. The grievances are outside the time limits specified by the Federal Court of Appeal to file a grievance (Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813). Both grievances are related to work performed by the grievor in 1998 and 1999 but were filed in April and May 2002. That principle was followed in Coquet v. Canada Customs and Revenue Agency, 2002 PSSRB 24.

3. The adjudicator appointed to the work description grievance can only render a decision on the very narrow point of whether or not the work description is complete and accurate following the principle established in Taylor v. Treasury Board (Revenue Canada - Customs & Excise) , PSSRB File No: 166-2-20396 (1990) (QL). The adjudicator does not have jurisdiction to change the effective date of the work description signed by the grievor on February 27, 2002.

[6]    The grievor's representative submitted that the evidence would show that the work description grievance was filed within the time limits, because the April 1, 1998 effective date was added after he signed the work description in February 2002. Furthermore, the timeliness of the acting pay grievance was not raised during the grievance procedure. The employer waived its right to do so at the hearing before the adjudicator.

[7]    The preliminary objection was taken under advisement and I indicated to the parties that I would receive evidence on the merits of the grievances and that the objection would be dealt with in my reasons.

Evidence

Work Description Grievance (PSSRB File No. 166-2-32742)

[8]    Clause 20.02 of the collective agreement signed between the Treasury Board and the Professional Institute of the Public Service of Canada (PIPSC) on June 28, 2001 (Code: 303; Expiry Date: April 30, 2002), reads as follows (Exhibits G-2):

**
20.02	Upon written request, an employee shall be entitled to a complete and current statement of duties and responsibilities of his position including the position's classification level and point rating allotted by factor and an organization chart depicting the position's place in the organization.

[9]    At the time the grievor filed his grievance, he worked as an IM/IT Micro-Computer Specialist at HRDC in Morden, Manitoba.

[10]    The grievor details his grievance as follows (Exhibit G-4):

I grieve John Allardyce's letter of March 14, 2002, (which I received on April 2, 2002) notifying me that the position description, IM/IT Technician/Micro Computer Specialist, is deemed by the Department as my current job description, with a backdated effective date of April 1, 1998.

[11]    In an attached statement, he detailed the corrective action he requests in the following words (Exhibit G-4):

That the Department modify the effective date of the position description to reflect either the date I was officially notified that this was my new official job description (as per D. McCullough grievance reply dated November 26, 2001), or, the effective date shown on the actual position description, which is October 3, 2001.

[12]    The grievor's Automation Coordinator position (position number 62674) was described in the work description effective April 1, 1992, and was classified originally at the AS-01 group and level (Exhibit G-5). That position was reclassified on May 29, 1995, as a CS-01, with an effective date of April 1, 1995 (Exhibit G-6).

[13]    A lot of technical changes occurred between 1995 and 1997 and management drafted a work description for the Technical Support Analyst position following a meeting held on January 29, 1998 (Exhibit G-7). That work description was finalized for the position of Technical Support Analyst and was signed by the grievor on February 11, 1999 (Exhibit G-8). The grievor signed this document, attesting that he had read the work description for this position.

[14]    On August 4, 1999, the grievor requested action on the reclassification of his position from a CS-01 to a CS-02 (Exhibit G-9). The issue of reclassification of the Technical Support Analyst position reflects the discussions related to the duties performed. The grievor specified his requests as follows:

         I am writing to formally request action on reclassification of my position (Number 62674) from CS1 to CS2.

         Beginning in November of 1997, I have been involved, along with the four South Region LAN Administrators, in a series of discussions with the South Region Director concerning our existing classifications as CS-1's and the actual duties we were performing. I was also involved in further meetings in 1998, as a result of which several understandings were reached. These included:

1. Desk Audits of several of the existing South Region Lan Administrators would be undertaken. At least one rural and one CPC position would be done.

2. Any staffing action that resulted would be effective April 1, 1998.

         In February of 1999, having been informed that R.H.W had established a special unit to handle reclassifications, I wrote a description of my work as part of a request for reclassification from CS1 to CS2. This request was approved by the HRC Morden manager and sent to R.H.Q. for processing. I understand that the work description was recognized as being at a CS2 level.

         However, I believe the time has come to take action on this request, within the existing authority structure.

Accordingly, I make the following requests:

1. Within 30 days of the date of this memorandum, I receive acting pay as a CS2 effective April 1, 1998.

2. Within 30 days of the date of this memorandum, I be appointed to my present position (62674) as an indeterminate CS2 effective April 1, 1998.

[15]    In his answer, the Director did not deny that the issues had been known since November 1997, and stated, in relation to the duties performed by the grievor, the following (Exhibit G-10):

[…]

     3)    Doug Kelly will make every reasonable effort to complete the review of your work activities through the process of an independent desk audit and interview. The results of this action will be communicated to you by Monday, October 4, 1999 or earlier.

     If this process results in a decision that you have been performing the duties of a CS-2, action will be taken to compensate you financially for the period of time you were doing CS-2 work.

[16]    A competitive process is currently underway to select a Technical Support Analyst and management informed the grievor that it could not unilaterally appoint him or any other person to an indeterminate CS-02 position. The PIPSC, the grievor's bargaining agent, suggested to management that it put the competitive process in abeyance pending the conclusion on the issue of the classification of the position (Exhibit G-11). Management replied, on October 7, 1999, that the desk audit results on the proposed work description were outstanding but it expected that the findings would be available shortly to move the process forward regarding reclassification (Exhibit G-12). Management committed its intention to resolving the reclassification issue prior to making any indeterminate appointment from the active CS-02 competition.

[17]    On March 13, 2000, the Automation Coordinator position (position number 62674) was evaluated at the CS-01 group and level, effective April 1, 1998 (Exhibit G-13). Jeannine Dumaine, the Human Resources consultant, prepared a report on the reclassification request for the Automation Coordinator position in Morden, Manitoba, on March 13, 2000 (Exhibit G-13). That report followed a desk audit conducted by Linda Franche in the summer/fall of 1999, on an analysis of technical staff levels. Ms. Dumaine specified that the grievor's responsibilities as an Automation Coordinator in Morden took up 40% of his time on average and is part-time work in nature. But despite that, the responsibilities related to the position constituted the primary purpose for the classification evaluation, which remained unchanged at the CS-01 group and level. For the work performed by the grievor outside the Morden office, the report concluded as follows:

[…]

There is, however, the matter of additional work "outside the office" which Mr. Temmerman indicates he has consistently done. He described that work in the following terms:

"the Windows 95 rollout (all of southern Manitoba and Winnipeg, including all training - and in which I did exactly the same work as Stan Barter and Perry Houvardas, yet they were CS2 and I was CS1); the NT RAS system with Stan Barter, NetWizard with Gerry Nadeau (in which I taught CS1s and CS2s how to do their level of work); FrontPage training, including setting up the NT workstation and classroom."

Clearly, work of that nature has nothing to do with the duties and responsibilities for on-site end-user and systems support assigned to the Automation Coordinator position in the Morden HRC, which is the position presently under review. Such work may represent an assignment Mr. Temmerman was asked to undertake on behalf of Regional Systems and/or South Directorate, for reasons of personal interest, qualifications, and/or availability. Depending on the nature and duration of the work performed, the circumstances and conditions under which the work was offered and accepted, and the relevant provisions of the CS Collective Agreement, Mr. Temmerman may be entitled to acting pay. However, such work was not assigned to Mr. Temmerman by virtue of the duties and responsibilities of his substantive position of Automation Coordinator, Morden, HRC. Consequently, it can have absolutely no bearing on the classification of the Automation Coordinator position.

I would encourage everyone involved in the various temporary assignments described by Mr. Temmerman to review the matter to determine what entitlement to acting pay, if any, may be warranted under all of the pertinent circumstances. For advice and guidance in this regard, please consult Rachelle Ginsberg, Chief HR Operations, at (---) as I will be away from March 6 - 31, inclusive.

[18]    The report submitted by Linda Franche following her desk audit of the analysis of technical staff levels was filed as Exhibit G-14. With respect to the grievor, the report stipulated:

Ray Temmerman:

With an office size of ten staff in Morden and a very stable technical environment, Ray estimates that he spends a maximum of two days per week on technical support to that office. The size of the office limits the scope of the job. The LAN room is much smaller and the technical requirements are minimal. He has been involved in some project management for implementations such as the recent Net Wizard implementation.

He spends a portion of his time doing Web Site design and support as well as LMI analysis for the Morden office. These activities are not within the scope of the Technical Support Analyst work description so are not analyzed here. Ray is also currently working on special projects for RHQ, creating technical and training documentation. Although the work he is doing for RHQ is in the capacity of a CS2, it is not included in this analysis as it is not a factor of either the work description or the ongoing technical responsibilities of the local office.

Based on these facts it does not appear that Ray is currently performing as a CS2 in terms of TSA support to the Morden office.

[19]    The grievor filed a classification grievance on March 28, 2000, against the classification decision assigning his position to the CS-01 group and level (Automation Coordinator/Technical Support Analyst, position number 62674) on March 13, 2000 (Exhibit G-15).

[20]    Following advice received from his bargaining agent representative, the grievor filed a work description grievance on October 23, 2000, and placed his classification grievance in abeyance (Exhibit G-16). For the grievor, it is necessary to clarify his work description before obtaining a new evaluation of the classification for his position.

[21]    In February 2001, the grievor expressed his frustration at the delay by the Department to render a final decision on the review of his work description and its classification (Exhibit G-17). For the employer, the issue would remain twofold, as specified in its response of February 13, 2001 (Exhibit G-18):

[…]

#1      What are the automation needs of the Morden office.

#2      What else have you been doing and does this impact on your work description or does it represent something you have volunteered to do as time permitted.

[…]

[22]    The employer's response at the first level of the grievance procedure, on April 11, 2001, denied his request, stating that "the activities identified were voluntary, developmental, and not an expectation of your job position duties" (Exhibit G-19). At the second level, the employer concluded as follows on November 26, 2001 (Exhibit G-20):

[…]

The corrective action requested is that your job description be rewritten to accurately reflect the scale, scope, and complexity of your job. It has been brought to my attention that subsequent to the second level grievance hearing, you recently participated in a teleconference with a UCS Project (work description writing) representative of the Systems Branch during which your concerns relative to the scale, scope and complexity of your assigned duties were addressed and clarified.

You also have been provided with a work description entitled IM/IT Micro Computer Specialist (3 October 2001) which you have accepted as an accurate reflection of the scale, scope, and complexity of the duties and responsibilities assigned to you.

[23]    The IT/IM Micro-Computer Specialist work description (October 3, 2001) was filed as Exhibit G-22 with the classification review decision rendered on March 14, 2002. The position was evaluated at the CS-01 group and level, effective April 1, 1998. That work description included, under Key Activities, among others, the following:

Key Activities

[…]

Prepares proper documentation and provides advice, guidance, coaching and formal or one-on-one training to staff and clients on the use of microcomputers, peripherals, applications and platform software.

[…]

Participates as a member of project teams, committees, meetings, conferences, workshops and special events.

[…]

[24]    The work description indicates that the grievor signed it on February 27, 2002, acknowledging that: "I have been given the opportunity to comment on this work description." The grievor explained, during his testimony, that he never filed the grievance at the third level because he got the changes that he had requested in his work description. The work description that he signed on February 27, 2002, reflected a complete and current statement of the duties and responsibilities of his position on that date. Furthermore, he explained that a generic work description (National Standard CS Work Description) is being developed and will involve a review and update of the work descriptions in the near future. In his testimony, he specified that he was not aware of the effective date of the work description on the day he signed it. He found out that the effective date of the work description was April 1, 1998, when he received the classification decision on March 14, 2002.

[25]    On April 22, 2002, the grievor requested a modification to the effective date of the classification (Exhibit G-23):

[…]

The primary (but not sole) concern that I have at this point is the effective date of the classification.

I do not believe it is possible to have an effective date of April 1, 1998, given that the Work Description itself came into being only as of October 3, 2001. I surely cannot be held responsible for performing work according to a Work Description which did not yet exist, and which no one knew would exist.

In a worst-case scenario, it would seem possible for a manager to write a disciplinary note to my file, backdated as far as April 1st, 1998, based on my not having performed functions included in the present Work Description (though included in the previous Work Description).

I realize the wording may have been simply an unfortunate error, and not meant as an actual application of the Work Description effective April 1, 1998, but I can't afford to take that chance.

I therefore request that the wording of the notification of decision be changed to reflect an effective date of (at the earliest) October 3, 2001, and better yet, effective the date I actually signed the present Work Description.

[…]

[26]    For Gerry Moe, who testified on behalf of the employer, the work description for the IM/IT Micro-Computer Specialist position, dated October 3, 2001 (Exhibit G-22), included the work performed by the grievor on the Windows 95 project. The Windows 95 project was led by a CS-02 (who is responsible for national implementation). The grievor and another CS-01 were involved in the implementation team and modified the material needed for the training.

[27]    Regarding the grievor's involvement in the Net Wizard implementation and rollout, he was helping the CS-02 responsible for this project and was part of the team with the CS-02 Team Leader.

[28]    For Mr. Moe, those projects were included in paragraphs 5 and 7, under Key Activities, of the IM/IT Micro-Computer Specialist position (Exhibit G-22):

[…]

Prepares proper documentation and provides advice, guidance, coaching and formal or one-on-one training to staff and clients on the use of microcomputers, peripherals, applications and platform software.

[…]

Participates as a member of project teams, committees, meetings, conferences, workshops and special events.

[…]

[29]    The CS-02 who performs Technical Support Analyst duties has more responsibilities than the grievor in relation to the project teams. The CS-02 leads project teams (paragraph 6 under Key Activities), participates as a member of project teams (paragraph 8), develops and delivers training (paragraph 10) and prepares training material (paragraph 14) (Exhibit G-31). Regarding delivering training and modification to training material, the CS-02 is responsible for those and the CS-01 participates as a team member on those tasks without being responsible for them.

[30]    Mr. Moe acknowledged in cross-examination that both work descriptions (Exhibits G-22 and G-27) were written on October 3, 2001, after the grievor assumed tasks on the Windows 95 and Net Wizard projects.

Acting Pay Grievance (PSSRB File No. 166-2-32741)

[31]    Clause 47.05 of the collective agreement signed on June 28, 2001 (Code: 303; Expiry Date: April 30, 2002) reads as follows (Exhibit G-2):

47.05 When an employee is required by the Employer to perform the duties of a higher classification or grade level on an acting basis for a period of at least three (3) consecutive working days, he shall be paid acting pay calculated from the date on which he commenced to act as if he had been appointed to the higher classification level for the period in which he acts. When a day designated as a paid holiday occurs during the qualifying period, the holiday shall be considered as a day worked for purposes of the qualifying period.

[32]    The previous collective agreement signed on December 2, 1997 (Code: 303/97; Expiry Date: April 30, 1999) (Exhibit G-1) had similar wording at clause 44.05, except that a period of 10 consecutive working days was required to receive acting pay.

[33]    As specified in the second paragraph of this decision, the grievor is requesting acting pay for two specific periods (Exhibit G-3):

• from January 2 to April 30, 1998, for work he performed at HRDC on Windows 95 rollout and end-user staff training; and

• from January 4 to March 31, 1999, for work he performed at HRDC on the Net Wizard implementation and training sessions for systems staff.

[34]    That grievance was filed on April 3, 2002, following a letter dated July 13, 2001, that the grievor sent to his manager (Exhibit G-3). He explicitly requested acting pay based on the following:

[…]

In order to formally initiate such a review, therefore, I hereby request Acting CS2 pay for the period 02 January 1998 through 30 April 1998, during which time I was actively involved in the Windows 95 rollout, and did the majority of the end-user staff training for all rural south offices excluding Brandon, and most of the Winnipeg HRCs.

In like manner, I request Acting CS2 recognition and pay for the period 4 January 1999 through 31 March 1999, during which I was actively involved in the NetWizard implementation, including developing much of the training materials, and being the primary deliverer for the first NetWizard training session, during which I trained both CS1 and CS2 Systems staff. (Gerry Nadeau conducted a small part of that first session, then was the instructor for the next session(s)).

[…]

[35]    In his July 13, 2001 letter, the grievor highlighted Ms. Dumaine's indications in her Memorandum dated March 9, 2000, relating to the reclassification request (Exhibit G-13). Those indications are stated in paragraph 17 of the present decision. They are related to Ms. Franche's desk audit report stated at paragraph 18 of the present decision (Exhibit G-14).

[36]    During his testimony, the grievor submitted that the responsibility for the Windows 95 rollout project was assigned to the CS-02 project leader. Scheduling of the work and the training to be done across the country was the project leader's responsibility. The grievor was responsible for delivering the work to be carried out in Winnipeg along with another CS-01. The training material came from the national level and was modified by the grievor.

[37]    In relation to the Net Wizard project, the CS-02 acted as project manager with overall responsibilities. The project manager requested that the grievor develop training from eight PowerPoint slides. The grievor developed 60 PowerPoint slides for the first course he delivered to CS-01 and CS-02 employees. For another component, the training was delivered by the project manager to CS-02 employees.

[38]    In its replies at each level of the grievance procedure, the employer denied the requests for acting pay for all of the periods requested, stating that the duties performed were within the scope of the CS-01 range of duties.

[39]    In the second level reply, the employer specified that there had been periods when the grievor received acting pay for the performance of CS-02 duties. Exhibit E-1 shows that the grievor was appointed to an acting position on many occasions, for variable durations between October 8, 1999, and April 2, 2001, at the CS-02 group and level. The grievor testified that not one of those acting appointments coincided with the acting periods requested in his grievance.

[40]    Mr. Moe, who gave evidence on behalf of the employer, stated that the work performed by the grievor during the periods from January 2 to April 30, 1998, and from January 4 to March 31, 1999, was at the CS-01 level. The responsibility to prepare documentation and provide coaching, as well as the one related to participating as a member on a project team, is included in the October 3, 2001 IM/IT Micro-Computer Specialist work description, which was classified at the CS-01 group and level (Exhibit G-22). On the other hand, the CS-02 Key Activities listed in the Technical Support Analyst work description (October 3, 2001) clearly include the leadership of the project teams; the participation as a member of the project teams; responsibility to develop and deliver training; and the preparation of training material (Exhibit G-31). The CS-02 is involved in project teams as leader and is responsible for delivering the project; the involvement of a CS-01, the grievor's group and level during the present periods, is as a member of the team, as specified in Exhibit G-22.

Argument on Behalf of the Grievor

[41]    The grievor's representative submitted that the employer waived the timeliness issue of the grievance because it was not raised during the grievance procedure. Messrs. Brown and Beatty, in Canada Labour Arbitration, Third Edition, specify, at paragraph 2:3130 ("Waiver of procedural irregularities"):

., by not objecting to a failure to comply with mandatory time-limits until the grievance comes for hearing, the party who should have raised the matter earlier will be held to have waived non-compliance, and any objection to arbitrability will not be sustained..

[42]    In Kettle v. Treasury Board (Transport Canada), PSSRB File No.: 166-2-21941 (1991) (QL), the adjudicator found that the employer had waived its right to raise the issue of timeliness.

[43]    The preliminary objection on that issue should therefore be rejected.

[44]    The principle stated in Burchill (supra) cannot receive application in the present case because the facts are different. The grievor did not present his October 23, 2000 work description grievance at the third level of the grievance procedure because he assumed that the employer had the right to assign duties and that the rewritten work description that he received on February 27, 2002, would receive application in the future. The grievor was notified that the work description for the IM/IT Micro-Computer Specialist position (October 3, 2001) would be retroactive to April 1, 1998, by notification of the decision rendered on the classification review of his position on March 14, 2002.

[45]    The first work description for the Automation Coordinator position, effective April 1, 1992, was classified at the AS-01 group and level. On February 11, 1999, the Technical Support Analyst work description was written for the Morden Human Resources Center and the position was classified at the CS-01 group and level. On August 4, 1999, the grievor requested a reclassification of his position to the CS-02 level.

[46]    The grievor filed a grievance requesting a rewriting of his work description on October 23, 2000, and put his classification grievance in abeyance. On October 3, 2001, a new work description for the IM/IT Micro-Computer Specialist position was submitted to the grievor, who signed it as an accurate description. That work description did not specify the effective date. The employer advised the grievor that the position had been evaluated at the CS-01 group and level on March 14, 2002, and stated that it was effective as of April 1, 1998.

[47]    In backdating the work description to April 1, 1998, the employer removed the grievor's right for a decision on the classification grievance, which he put in abeyance, and for acting pay for 1998 and 1999.

[48]    The objection to the non-compliance of the time limits should not be accepted by the adjudicator. The employer did not raise that objection during the grievance procedure. In Canadian Labour Arbitration, at paragraph 2:3130 (supra), the doctrine of waiver is stated as follows:

         In its application, waiver is a doctrine that parallels the one utilized by the civil courts known as "taking a fresh step", and holds that by failing to make a timely objection and "by treating the grievance on its merits in the presence of a clear procedural defect, the party waives the defect. That is, by not objecting to a failure to comply with mandatory time-limits until the grievance comes on for hearing, the party who should have raised the matter earlier will be held to have waived non-compliance, and any objection to arbitrability will not be sustained.

[49]    That doctrine was applied in Kettle (supra). The adjudicator concluded as follows:

[…]

         I consider that, the employer should have endeavoured to focus on all issues during the grievance process and not suddenly (about eight days before the hearing) at the eleventh hour raise the issue of timeliness, and expect this Board to allow the employer's objection. This can be said to be analogous to not wanting to fully canvass all issues in a lower court, (that is the grievance process), but rather during an appeal at a higher court, (before the adjudicator). One of the purposes of the grievance process is to fully canvass all issues, including procedural irregularities.

[…]

         I conclude therefore that the employer by not raising the matter in the grievance procedure waived its right regarding timeliness and that timeliness should not suddenly appear in the process at this stage. I do not have to decide whether or not the grievor is taken by surprise or prejudiced by the employer's objection at this late stage.

[…]

[50]    In the present case, the employer made clear and unequivocal representations to the grievor in the fall of 2001 that a generic work description would be written at the national level. The employer knew that the grievor's classification grievance in relation to the work description signed by him on February 11, 1999, was in abeyance. In accepting the work description as accurate on October 3, 2001, the grievor recognized that the employer could assign duties to employees and the grievor testified that he acknowledged that the work description was accurate on that date.

[51]    The grievor filed his grievance on May 2, 2002, within 25 working days of the notification he received on April 2, 2002, and within the time limits specified in clause 33.09 of the collective agreement, which reads as follows:

33.09  An employee may present a grievance to the first step of the procedure in the manner prescribed in clause 33.03, not later than the twenty-fifth (25th) day after the date on which he is notified orally or in writing or on which he first becomes aware of the action or circumstances giving rise to the grievance.

[52]    With respect to the acting pay grievance, the grievor's representative submitted that the grievor assumed duties over his work description of Automation Coordinator (effective date 01/04/92) when he performed the Windows 95 rollout (from January to April 1998) and the Net Wizard implementation and training (from January to March 1999).

[53]    Ms. Dumaine, the HR consultant, recognized that the grievor performed additional work outside the Morden office that had nothing to do with the duties and responsibilities of the Automation Coordinator position (Exhibit G-12). In her analysis of technical staff levels, Ms. Franche's report states that those tasks are consistent with those of a CS-02 and are outside of the Technical Support Analyst work description. Those elements are specified as outside the grievor's work description in the acknowledgement of performance issued on January 26, 2000 (Exhibit G-26).

[54]    The grievor did not receive acting pay for the periods specified in his grievance. Those periods are not included in the ones listed in Exhibit E-1 for which he received acting pay. Mr. Moe, who testified on behalf of the employer, has no knowledge of the grievor's involvement in the Windows 95 and/or the Net Wizard projects.

[55]    With respect to those projects, the grievor performed training duties and prepared and delivered technical training. Those tasks are included under Key Activities in the Technical Support Analyst work description (classified CS-02) (Exhibit G-31). Exhibit E-1 shows that the grievor received acting pay from April 2 to 22, 2000, while he was involved in the preparation and delivery of technical training. Consequently, the employer is in contradiction when it refuses to give acting pay for the same kind of work assumed by the grievor during 1998 and 1999.

[56]    The grievor is requesting acting pay and a reclassification of his position since August 4, 1999 (Exhibit G-9) after he raised those issues in meetings held on January 29, 1998, with his manager. On August 25, 1999, management replied that he would be compensated financially for the periods of time that he was performing CS-02 work (Exhibit G-6). Ms. Dumaine notes in her report on classification that acting pay has to be reviewed (Exhibit G-13). The grievor reminded management of his request for acting pay on February 26, 2002 (Exhibit G-28), and management denied his request on March 6, 2002 (Exhibit G-30). In filing his grievance on April 3, 2002, the grievor was within the time limits of 25 working days stipulated in the collective agreement.

[57]    The grievor's representative submitted that the decisions rendered in Macri v. Treasury Board (Indian and Northern Affairs Canada) , PSSRB File No.: 166-2-15319 (1987) (QL); Vanier v. Treasury Board (Revenue Canada - Customs and Excise) , PSSRB File No.: 166-2-23562 (1994 (QL) and Cuthill v. Treasury Board (Ministry of Transport) , PSSRB File Nos.: 166-2-12640 and 12641 (1982) (QL), can receive application in the present case.

Argument For the Employer

[58]    Counsel for the employer submitted that the employer is entitled to assign duties to employees. The jurisdiction of the adjudicator is limited to a breach of the collective agreement. Clause 20.02 gives an employee the right to have a complete and current statement of duties and does not include items related to the effective date of application of the statement of duties.

[59]    The work description grievance filed on October 23, 2000, is related to the work description of the Technical Support Analyst position signed by the grievor on February 11, 1999. This grievance was never sent to the third level of the grievance procedure. The classification grievance filed by the grievor on March 20, 2000, was put in abeyance and was never reactivated afterwards.

[60]    The employer agreed to write a new work description, which was submitted to the grievor on October 3, 2001. The IM/IT Micro-Computer Specialist work description was signed by the grievor on February 27, 2002. In his testimony, the grievor admitted that this work description was a current and complete statement of the duties and responsibilities of his position on that date.

[61]    The April 1, 1998 effective date for that work description was added after the grievor requested a review of his statement of duties and classification up to that date.

[62]    In Costain v. Treasury Board (Fisheries and Oceans Canada) , PSSRB File Nos.: 166-2-18508 to 18511 (1989) (QL), submitted by the grievor's representative, the adjudicator found that the element of the doctrine of promissory estoppel had been demonstrated; there was a clear and unambiguous representation, which was relied upon by a contractual party to his detriment. In the present file, the grievor's work description (Technical Support Analyst) has an effective date of April 1, 1998. No other representations were made by the employer in relation to the effective date of the rewritten work description (dated October 22, 2001) for the IM/IT Micro-Computer Specialist position. Consequently, in the absence of clear and unambiguous representations, the doctrine of estoppel cannot receive application in the present case.

[63]    The grievor was aware, by his input in the rewriting of the work description done by conference call, that the employer had a concern regarding the April 1, 1998 date.

[64]    In Brochu v. Treasury Board (Correctional Service of Canada, Ministry of the Solicitor General) , PSSRB File Nos.: 166-2-18422 and 18925 (1991) (QL), the adjudicator concluded that it was not for him to determine the effective date of the work description.

[65]    In the present case, the grievor is not requesting that the adjudicator add duties or responsibilities to his work description, as it was submitted in Littlewood v. Treasury Board (Revenue Canada) , PSSRB File No.: 166-2-16044 (1987) (QL). Here, the grievor only requests that the adjudicator modify the effective date of the work description.

[66]    With respect to the acting pay grievance, counsel for the employer submitted that the grievor did not submit proof that he performed the "core duties" of the higher position. As in Lindeblom v. Treasury Board (Fisheries and Oceans) , PSSRB File No.: 166-2-26336 (1996) (QL), the duties performed by the grievor are allocated between two employees and, in the circumstances, the grievor did not perform all of the core duties of the higher position.

[67]    As stated in Few v. Treasury Board (Agriculture Canada) , PSSRB File Nos.: 166-2-17441 to 17443 (1988) (QL), the onus of proof is on the grievor to show that he substantially performed the duties of the higher classification position. This onus was not fulfilled by the grievor in the present case.

[68]    It is not clear from the wording of Exhibit G-14 (Ms. Franche's report) that the work performed by the grievor in the Net Wizard implementation (stated in the first paragraph) was in a CS-02 capacity (as stated in the second paragraph). Ms. Franche can enumerate other duties performed by the grievor during periods where he was entitled to receive acting pay. Mrs. Dumaine's report (Exhibit G-13) encourages management to review the various temporary assignments described by the grievor to determine if he was entitled to acting pay. She did not base her decision on the level of the duties assumed in the Windows 95 or Net Wizard project.

[69]    On this basis, the grievances should be denied.

Reply for the Grievor

[70]    The classification decision rendered on March 14, 2002, was subsequent to the Windows 95 and Net Wizard projects. The work description that was in application at that time was the Technical Support Analyst work description, which has an effective date of April 1, 1998 (Exhibit G-8). By putting April 1, 1998, as the effective date for the IM/IT Micro-Computer Specialist work description (on October 3, 2001), the employer wanted to retroactively replace the previous work description.

[71]    In Costain (supra) and Macri (supra), the adjudicators concluded on an effective date for the work descriptions and this was done within their jurisdiction.

Reasons for Decision

Work Description Grievance (PSSRB File No.: 166-2-32742)

[72]    The grievor is contesting the effective date of April 1, 1998, put by the employer on the work description for the IM/IT Micro-Computer Specialist position. In his testimony, he stated that he received that work description on February 27, 2002, and the October 3, 2001, date appeared in brackets in the title of the work description presentation page that he signed (Exhibit G-22).

[73]    He understood when he received the letter of notification (on April 2, 2002) regarding the decision on classification review that the work description was considered effective on April 1, 1998. That letter of notification advised him that the position had been evaluated at the CS-01 group and level, effective April 1, 1998 (Exhibit G-22). He concluded from that letter that the effective date of the work description was placed on April 1, 1998, by the employer. At the hearing, the grievor submitted that it was the first time that he was notified of the effective date for the IM/IT Micro-Computer Specialist work description.

[74]    The employer submitted that the evidence showed that the April 1, 1998 effective date of the rewritten work description had been of concern to the parties since 1998, and that it was clearly stated in the conference call where the contents of the Technical Support Analyst work description were finalized. My evaluation of these items will lead to a conclusion on the objection of the employer on the alleged timeliness of the grievance.

[75]    From the documentation provided as Exhibit G-22, it appears that the work description signed by the grievor on February 27, 2002, showed the following title: "Work Description/ IMR00607 CS-01 IM/IT Micro-Computer Specialist" (3 October 2001).

[76]    No reference whatsoever was made to an effective date for that work description in the documentation signed by the grievor on February 27, 2002, as is apparent in Exhibit G-22. The effective date of April 1, 1998, was made known to the grievor via the March 14, 2002 letter of notification for the classification of the position which he received on April 2, 2002, and no other written documentation or statement presented to me in evidence stated another time when the employer notified the grievor of its decision.

[77]    In his testimony, the grievor stated that the employer notified him of the effective date of the work description by letter dated March 14, 2002 and received on April 2, 2002, and this was not contradicted.

[78]    The relevant clauses of the collective agreement relate to the delay in filing a grievance and read as follows:

33.09	An employee may present a grievance to the first step of the procedure in the manner prescribed in clause 33.03, not later than the twenty-fifth (25th) day after the date on which he is notified orally or in writing or on which he first becomes aware of the action or circumstances giving rise to the grievance.
33.14	In determining the time within which any action is to be taken as prescribed in this procedure, Saturdays, Sundays and designated paid holidays shall be excluded.

[79]    Applying these clauses, the starting date of April 3, 2002 (the day after receiving the March 14, 2002 letter of notification), brings the 25 days (excluding Saturdays and Sundays) to May 7, 2002. The grievance having been filed on May 2, 2002, it was filed within the time limits prescribed in the collective agreement. The preliminary objection raised by counsel for the employer on those grounds is dismissed.

[80]    On the other hand, the doctrine of waiver of procedural irregularities, as argued by the grievor's representative, should be accepted, the employer not having raised the issue of timeliness during any of the levels of the grievance procedure. The doctrine described in Canadian Labour Arbitration (supra) was applied in Kettle (supra) and can apply in the present case for the reasons stated by the adjudicator in that case.

[81]    Turning to the merits of the grievance, I have to determine if clause 20.02 of the collective agreement includes the possibility for an employee to grieve the effective date of a work description. In the present case, the grievor requested modifications to his work description and to the classification of his position as of November 1997, as stated in the August 9, 1999 letter he wrote to his Director (Exhibit G-9). The grievor detailed his concerns as follows:

[…]

Accordingly, I make the following requests:

1. Within 30 days of the date of this memorandum, I receive acting pay as a CS2 effective April 1, 1998.

2. Within 30 days of the date of this memorandum, I be appointed to my present position (62674) as an indeterminate CS2 effective April 1, 1998.

[82]    Management replied to his requests stating that an independent desk audit would be concluded upon review of the work activities and that a decision would be made on the level of the duties performed (Exhibit G-10). If the conclusions showed that he was performing CS-02 level duties, action would be taken to compensate him financially for the period of time during which he was doing CS-02 work.

[83]    I understand from the evidence that the Technical Support Analyst work description (Exhibit G-8) received by the grievor in February 1999 (effective date April 1, 1998) did not fully address his concerns because it did not include duties that he assumed outside the Morden office and because he disagreed with the classification of that position at the CS-01 level (Exhibit G-13). Those items were contested by a classification grievance (Exhibit G-15) and a work description grievance (Exhibit G-16).

[84]    That work description grievance was abandoned after the second level of the grievance procedure when the IM/IT Micro-Computer Specialist work description was written. Nothing in the evidence shows me that the effective date of April 1, 1998, of the previous work description was an issue in that grievance. Some points still had to be resolved (guidance and direction to AIC "back ups" located in the local office), as specified on February 26, 2002 (Exhibit G-21), but the issue of the effective date of application of the new work description became an issue only upon receipt of the notification of the classification on March 14, 2002 (Exhibit G-22).

[85]    The grievor expressed his concerns in his April 22, 2002 correspondence as follows (Exhibit G-23):

The primary (but not sole) concern I have at this point is the effective date of the classification.

I do not believe it is possible to have an effective date of April 1, 1998, given that the Work Description itself came into being only as of October 3, 2001. I surely cannot be held responsible for performing work according to a Work Description which did not yet exist, and which no one knew would exist.

[…]

I therefore request that the wording of the notification of decision be changed to reflect an effective date of (at the earliest) October 3, 2001, and better yet, effective the date I actually signed the present Work Description.

[86]    The evidence brings me to conclude that the main purpose of the rewriting of the work description for position number 62674 from Automation Coordinator in 1992 to Technical Support Analyst on February 11, 1999, and finally to IM/IT Micro-Computer Specialist (received by the grievor on February 27, 2002), was to include the duties performed by the grievor outside the 40% of time he spent in the Morden office. Some of those duties performed outside the Morden office included the work done on the Windows 95 rollout and Net Wizard projects. Those two special projects were performed from January 2 to April 30, 1998, for the Windows 95 project, and from January 4 to March 31, 1999, for the Net Wizard project.

[87]    The tasks related to those two projects seem to be included in the following Key Activities described in the IM-/IT Micro-Computer Specialist work description (Exhibit G-22):

Prepares proper documentation and provides advice, guidance, coaching and formal or one-on-one training to staff and clients on the use of microcomputers, peripherals, applications and platform software.

[…]

Participates as a member of project teams, committees, meetings, conferences, workshops and special events.

[88]    Notwithstanding that the grievance did not request the rewriting of the job description differently to include the tasks performed on those two specific projects, it is indisputable that these were performed between January 2, 1998 and March 31, 1999. As specifically stated above, since November 1997 the grievor has requested that his work description be rewritten to include the duties and responsibilities he performed outside the Morden office and in order to give effect to the rewording of the work description, it has to cover the period of time where those outside projects were executed.

[89]    No reasons were submitted in the evidence to explain why the effective date was April 1, 1998. I conclude that it is simply because the employer wanted to replace the previous Technical Support Analyst work description, which has an April 1, 1998 effective date. That effective date was not contested in the grievance filed in October 2000. Also, the facts show that the April 1, 1998 effective date for the new IM/IT Micro-Computer Specialist work description was requested by the grievor in his correspondence, as stated above.

[90]    It is within my jurisdiction to determine whether an employee performed some duties and responsibilities during a specific period of time and to order the employer to add those duties and responsibilities to the work description contested by the grievance. The order should include the period of time during which those duties and responsibilities were assumed, in other words, specify the effective date of the modification to be made. Otherwise, it would be of no use for an employee to grieve his work description (requesting to add a specific key activity) and receive a decision of an adjudicator months if not years after filing his grievance, if the readjustment does not have a retroactive effect to the date of the grievance and to the date of the alleged breach of the collective agreement, up to a maximum of 25 days before his grievance.

[91]    The grievor requested to change the April 1, 1998 effective date of the work description to November 26, 2001 (date of the notification of the work description) or to October 3, 2001 (date appearing in the work description title). The grievor did not request to have the work description effective date adjusted to January 2, 1998. He argued that the effective date of April 1, 1998, deprived him of his right to acting pay and that it is not possible to have an effective date prior to the rewriting of the work description. To recognize that an employee assumed a specific duty and add it to his work description does not deprive him of acting pay. The acting pay issue is different from the work description issue. The grievances on these issues are based on distinct clauses of the collective agreement and the adjudicator must determine each issue separately.

[92]    For the reasons stated above, I conclude that the April 1, 1998 effective date for the IM/IT Micro-Computer Specialist work description is the one reflecting the will of the parties when they proceeded to the writing of the new work description and was the one covering the period of time when the added Key Activities were performed by the employee in position number 62674. Consequently, this grievance (PSSRB File No. 166-2-32742) is denied.

Acting Pay Grievance (PSSRB File No.: 166-2-32741)

[93]    The grievance filed by the grievor on April 3, 2002, states that the employer denied his request for acting pay (dated July 13, 2001) by correspondence that he received on April 2, 2002 (Exhibit G-22).

[94]    The evidence shows that the grievor requested acting pay for two periods (Exhibit G-3):

• from January 2 to April 30, 1998, for the Windows 95 rollout; and

• from January 4 to March 31, 1999, for the Net Wizard training.

[95]    That request, asking for acting pay for those specific projects, which were assumed on those dates, appears to fall outside of the scope of the current work description of the grievor. From January to May 1998, the current work description was the Automation Coordinator (signed on May 6, 1992, and effective April 1, 1992) and from January to April 1999, the current work description was the Technical Support Analyst (signed on February 11, 1999, and effective April 1, 1998). The effective date of the latter job description was not contested.

[96]    Ms. Franche's report on the analysis of technical staff levels raises questions as to whether the grievor assumed tasks outside his work description. Exhibit G-14 is not explicit enough to reach the conclusion that those "outside tasks" included the Windows 95 project, or the Net Wizard project. I conclude that Ms. Franche's report did not demonstrate that the work performed in the Windows 95 and the Net Wizard special projects is at the CS-02 level.

[97]    In her report on classification dated March 9, 2000, Ms. Dumaine stated that the grievor included both projects within the outside office work to be done. The report concluded that those duties were not assigned to the grievor by virtue of the Automation Coordinator work description (Exhibit G-12). She made a recommendation to management to review the temporary assignments to determine if the grievor was entitled to acting pay.

[98]    The evidence shows that the grievor requested modifications to his work description starting in November 1997 (Exhibit G-9) and sent out reminders to his employer (on February 1, 2001 (Exhibit G-17 and on February 13, 2001 (Exhibit G-18)). The issues were always related to the work description and classification for position number 62674 at the Morden office.

[99]    The grievance on acting pay cannot succeed on its merits. The grievor had the onus to demonstrate that the duties that he performed were of a higher classification level, as per the wording of clause 47.05.

[100]    On that issue, the grievor submitted that the duties he performed on both projects in providing coaching, preparing training documentation and participating as a member of the project teams were of a higher classification level. The evidence shows that the grievor considered those specific duties to be at the CS-02 level, but the employer's agents (Ms. Dumaine and Ms. Franche) only questioned this assertion without clearly stating that those tasks were at the CS-02 level. On this issue, Ms. Franche's testimony could have brought some clarifications to the wording in her report on her "analysis of technical staff levels", but did not.

[101]    The arguments submitted by the employer are related to the Key Activities listed in the work descriptions for the IM/IT Micro-Computer Specialist (CS-01) and the IM/IT Technical Support Analyst (CS-02) which were written on October 3, 2001.

[102]    The employer submitted that the duties related to the preparation or modification of coaching documentation and to the delivery of coaching are covered by the following Key Activities listed in the IM/IT Micro-Computer Specialist work description:

Prepares proper documentation and provides advice, guidance, coaching and formal or one-on-one training to staff and clients on the use of microcomputers, peripherals, applications and platform software.

[103]    Furthermore, the employer submitted that the involvement of the grievor in the project teams for Windows 95 and Net Wizard is included in the following Key Activities of the same IM/IT Micro-Computer Specialist work description:

Participates as a member of project teams, committees, meetings, conferences, workshops and special events...

[104]    The employer also submitted that the CS-02 Technical Support Analyst position is distinguishable from the lowest level position by the leadership of the project teams given to the higher level, as follows: "Leads project teams on assignments.."

[105]    The duties performed by the grievor in these special projects are outside of the key activities of his position at the Morden Office. In other words, he performed these duties outside of his Automation Coordinator position or his subsequent Technical Support Analyst position. It is clear from the evidence that the employer assigned the grievor to these special projects to fill the work week of the grievor, who had worked in the Morden office for only 40% of the time.

[106]    The evidence shows that the tasks the grievor assumed in these special projects (participation in project teams, preparation of documentation for training, delivering guidance, coaching and training) are included in the IM/IT Micro-Computer specialist (CS-01) work description as well as in the IM/IT Technical Support Analyst (CS-02) work description. These two work descriptions were written in October 2001, a long time after the grievor assumed the duties, but they have an effective date of April 1, 1998.

[107]    The grievor, when he participated as a team member in the Window 95 and the Net Wizard special projects, carried on duties that were included in his IM/IT Micro-Computer Specialist work description, which is classified as the CS-01 level. As a member of these special project teams, he did not assume the responsibility of leading them, which is the core distinguishing task of the CS-02 work description.

[108]    It is up to the grievor to establish that he performed the duties of the CS-02 level when he participated in these special projects. From the evidence, I concluded that the grievor did not meet his burden of proof and failed to demonstrate that the duties he performed as a team member are of the CS-02 level. The grievance should be consequently dismissed.

[109]    Taking into consideration that I dismissed, on the merit, the grievance on acting pay, I do not have to deal with the preliminary objection submitted by the employer's counsel on its timeliness.

[110]    For the reasons stated above, both grievances filed by Mr. Temmerman are denied.

[111]    In closing, I must acknowledge the lengthy period of time that has intervened between the hearing of these grievances and the date of this decision. I would like to reassure the parties that the Board is very mindful of the importance for the parties of a timely disposition of all matters brought before it and strives to act diligently in all cases. A combination of factors has unfortunately prevented an earlier release of this decision. I regret the inconveniences this may have caused the parties.

Léo-Paul Guindon,
Board Member

OTTAWA, January 28, 2005