Date: 20091230
Docket: T-1454-08
Citation: 2009 FC 1314
Ottawa, Ontario, December 30,
2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
GLEN CURRIE, TERRY V. WILLISKO
and
HEATHER
MARGARET WILSON
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 18.1 of the Federal Courts Act,
R.S.C., 2002, c.8, s. 14, in the matter of a decision of an Adjudicator
from the Public Service Labour Relations Board, 2008 PSLRB 69, dated August 22,
2008. The decision allowed in part a reference to adjudication brought by the Respondents
herein concerning an unsuccessful grievance against the refusal by Canada
Customs and Revenue Agency (CCRA), now the Canada Revenue Agency (CRA), their
employer, to comply with their request for a "complete and current
statement of the duties and responsibilities" of their positions. The
Adjudicator ordered that the Respondents’ job descriptions be amended in accordance
with the decision.
[2]
For
the reasons set out below the application should be dismissed.
I. Background
[3]
The
Respondents, Mr. Glen Currie, Mr. Terry Willisko and Ms. Heather Wilson, were
employed as Investigators/Auditors by the Canada Customs and Revenue Agency
(CCRA), which has since been renamed to Canada Revenue Agency (CRA) in various
locations across the country. The Investigator/Auditor function is divided into
two classifications, PM-03 and PM-04, described in work descriptions PM-0286
and PM-0677 respectively. The two work descriptions are largely the same
except for the complexity of the files to be handled. The Respondents were
classified as PM-03.
[4]
The
Respondents performed duties outside of their PM-0286 job description for which
they received acting pay in the PM-04 classification. Mr. Currie received
acting pay from September 1996 to early 1999 and from June 18, 2001 to
September 28, 2001. Mr. Willisko received acting pay from January 1, 1993 to
December 31 1997. Ms. Wilson received acting pay from October 8, 1997 to
February 5, 1998, February 16, 1999 to December 19, 1999, and April 1, 2001 to
December 31, 2001.
[5]
The
Respondents grieved their job descriptions. They submitted to their employer
that the work they were performing was beyond the scope of their job
description since it was more difficult or complex than as described in their
PM-0286 job description. The Respondents demanded “a complete and current
statement of the duties and responsibilities” of their positions in accordance
with their prescribed rights under Article 56.01 of the Collective Agreement
which states:
56.01 Upon written request, an employee
shall be provided with a complete and current statement of the duties and
responsibilities of his or her position, including the classification level
and, where applicable, the point rating allotted by factor to his or her
position, and an organization chart depicting the position’s place in the
organization.
[6]
The
Respondents requested that their respective job descriptions be amended to
include the additional duties and responsibilities performed outside the
PM-0286 job description.
[7]
The
employer responded by furnishing the Respondents with a copy of the PM-03
classification, the accompanying PM-0286 job description and an organizational
chart showing the Respondents’ respective position within the CRA. However, the
Respondents’ employer denied their request for an amendment to the generic job
description and accordingly the grievance was referred to an adjudicator.
A. First
Adjudication
[8]
The
grievance was initially heard by Adjudicator Kuttner of the Public Service
Staff Relations Board. Adjudicator Kuttner determined that a grievance
adjudicator lacked the jurisdiction to require the employer to provide
position-specific work descriptions upon individual requests pursuant to
Article 56.01 of the Collective Agreement because such a requirement would lead
to the “balkanization of the employer’s generic work descriptions”. Therefore,
the only remedies open to the Respondents were to request acting pay or a
reclassification of their work classification. Adjudicator Kuttner further
determined that the PM-0286 description was able to encompass the additional
duties performed by the Respondents. The Respondents’ grievance was therefore
dismissed.
B. Justice
Strayer’s Decision
[9]
On
judicial review, Justice Barrie Strayer held that while Adjudicator Kuttner may
have considered jurisdictional issues relating to the remedy proposed by the
Respondents, those issues did not govern the final decision: Currie v. Canada
(Customs and Revenue Agency), 2005 FC 733, 36 Admin. L.R. (4th) 138, per Justice
Strayer at paragraph 11. Justice Strayer held that the Adjudicator reasonably
concluded that the Respondents’ job description was sufficiently capacious to
include the duties and responsibilities which the Respondents raised. The application
for judicial review was therefore dismissed.
C. The
Court of Appeal’s Decision
[10]
The
Respondents successfully appealed Justice Strayer’s decision: Currie v. Canada (Customs and
Revenue Agency), 2006 FCA 194, [2007] 1 F.C.R. 471.
[11]
The
majority, led by Justice Pelletier held that Adjudicator Kuttner was guided by
his view that he lacked jurisdiction to require the employer to provide the
Respondents with a position-specific work description and that where “an
employee is required on an ongoing and permanent basis to do work which is
substantially outside the job description applicable to his or her position,
the employee’s remedy is to apply for reclassification.”
[12]
The
majority held at paragraph 25 that the Adjudicator’s interpretation of Article
56.01 of the Collective Agreement was too rigid and could not be allowed to
stand. The majority held at paragraph 26 that the correct interpretation was
that a job description “is a document which must reflect the realities
of the employee's work situation”. [emphasis added]
[13]
The
majority addressed the Adjudicator’s determination that the only remedy open to
the Respondents was a reclassification grievance at paragraphs 27-28:
27 The adjudicator's
suggestion that reclassification is the appropriate remedy for an employee
regularly engaged in doing work beyond the scope of his or her job description
is a particularly relevant example of this point. In argument before us,
counsel for the appellants, without contradiction from opposing counsel,
advised that a reclassification grievance will not proceed unless the employee
agrees that his or her [page 486] job description is accurate. Consequently,
a person whose position is classified at the PM-03 level but who is regularly
working on files of complexity 20 or greater cannot apply for reclassification
unless he or she agrees that job description PM-0286 accurately describes their
duties and responsibilities. As we have seen, the distinguishing characteristic
of job description PM-0286 is the fact that the incumbent is assigned to work
on files of complexity 10. Consequently, the applicant who seeks
reclassification from PM-03 to PM-04 must agree that their job consists of
working on files of complexity 10, which effectively undercuts the basis of
their request for reclassification.
28 As a result, the only way in
which individual employees can access the reclassification process is by means
of a revised job description which accurately describes the duties and
responsibilities of their position. Clause 56.01 of the Collective Agreement is
the mechanism by which the employee is able to demand such a job description. An
interpretation of clause 56.01 which forecloses its use in the very
circumstances which give it a purpose cannot withstand even the most
deferential review by this Court.
[emphasis
added]
[14]
The
majority therefore allowed the appeal with costs and remitted the matter back
to a different adjudicator to be decided in accordance with its reasons.
[15]
Justice
Létourneau dissented. He agreed with the trial judge’s reasoning that
Adjudicator Kuttner did not allow the jurisdictional discussion of the
Respondent’s requested remedy to influence its ultimate decision, and even it
did, the interpretation of Article 56.01 of the Collective Agreement was
reasonable.
D. Second
Adjudication
[16]
Adjudicator
Mackenzie of the Public Service Labour Relations Board presided over the
remitted adjudication of the Respondents’ job description grievance. He allowed
the Respondents’
grievances in
part and ordered that the employer insert the following two amendments into the
PM-0286 job description:
187 The PM-03 job descriptions
of Mr. Currie, Ms. Wilson and Mr. Willisko are amended by adding the following
to the first activity:
Working on investigation files
at higher complexity ratings than 10 when the investigator is a member of a
team that reports to a lead investigator.
188 The PM-03 job descriptions of
Mr. Currie, Ms. Wilson and Mr. Willisko are further amended under “Key Activities”
by adding the following, after the first key activity:
On an episodic basis, and over
an extended period,
investigating difficult domestic and international tax fraud schemes,
complexity 20, that require minimum or medium accounting knowledge, through the
analysis and evaluation of information and allegations from numerous sources to
ascertain whether available facts indicate fraud in order to ensure compliance
with the Statutes administered by the Agency.
[emphasis added]
[17]
The
Adjudicator based his decision on the following reasoning found at paragraph
170 of the decision:
170 The evidence
showed that three of the grievors (Mr. Currie, Ms. Wilson and Mr. Willisko) did
perform duties outside of the revised PM-03 job description (as lead investigators
of files complexity rated at 20) on a regular and ongoing basis. That they have
received acting pay for this work does not change the fact that the revised
PM-03 job description did not accurately reflect the work being performed.
The nature of the investigation work means that once a file is assigned the
investigator follows it through to its conclusion -- and this means that the
work on the file will continue over an extended period of time. This period
of time cannot be described as “temporary”. Work as a lead investigator on
files rated at complexity level 20 was performed on a regular and ongoing
basis. However, it could not be described as “permanent” since it was performed
on an episodic basis. There were periods when these three grievors worked exclusively
on files rated at complexity level 10 and performed no work (as lead
investigators) on files complexity rated at level 20 […]
[emphasis added]
[18]
The
Adjudicator found that the Respondents were not given a choice of continuing to
work higher complexity 20 rated files or were directed to refer those files to colleagues
of a higher classification. This was fact was sufficient to distinguish the
case of Batiot et al. v. Canada Customs and Revenue Agency, 2005 PSLRB
114, 86 C.L.A.S. 132, from to
circumstances at bar.
[19]
The
Adjudicator concluded at paragraph 172 that “in order to reflect the regular
and episodic performance of duties as lead investigators of files complexity
rated at 20, the PM-03 job descriptions of Mr. Currie, Ms. Wilson and Mr.
Willisko must be amended.”
II. The Statutory Framework
[20]
On
April 1, 2005, the Public Service Labour Relations Act, S.C. 2003, c.
22, s. 2, enacted by section 2 of the Public Service Modernization Act,
S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public
Service Modernization Act, the reference to adjudication must be dealt with
in accordance with the provisions of the Public Service Staff Relations Act
(the former Act).
[21]
Subsection
92(1) of the former Act reads as follows:
|
92.
(1) Where an employee has presented a grievance, up to and including the
final level in the grievance process, with respect to
(a) the interpretation or application
in respect of the employee of a provision of a collective agreement or an
arbitral award,
(b) in the case of an employee in a
department or other portion of the public service of Canada specified in Part I of Schedule I or
designated pursuant to subsection (4),
(i) disciplinary action resulting in
suspension or a financial penalty, or
(ii) termination of employment or
demotion pursuant to paragraph 11(2)(f) or (g) of the Financial
Administration Act, or
(c) in the case of an employee not
describing in paragraph (b), disciplinary action resulting in termination of
employment, suspension or a financial penalty,
and
the grievance has not been dealt with to the satisfaction of the employee,
the employee may, subject to section (2), refer the grievance to
adjudication.
|
92.
(1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable
sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage
tout grief portant sur:
a) l'interprétation ou l'application, à
son endroit, d'une disposition d'une convention collective ou d'une décision
arbitrale;
b) dans le cas d'un fonctionnaire d'un
ministère ou secteur de l'administration publique fédérale spécifié à la
partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4),
soit une mesure disciplinaire entraînant la suspension ou une sanction
pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas
11(2)f) ou g) de la Loi sur la gestion des finances publiques;
c) dans les autres cas, une mesure
disciplinaire entraînant le licenciement, la suspension ou une sanction
pécuniaire.
|
[22]
Section
7 of the former Act ousts the jurisdiction of an adjudicator from
determining the classification of employees:
|
7. Nothing
in this Act shall be construed to affect the right or authority of the
employer to determine the organization of the Public Service and to assign
duties to and classify positions therein.
|
7.
La présente loi n'a pas pour effet de porter atteinte au droit ou à
l'autorité de l'employeur quant à l'organisation de la fonction publique, à
l'attribution des fonctions aux postes et à la classification de ces
derniers.
|
III. Standard
of Review
[23]
The
standard of review for questions of law is correctness while other issues are
reviewable on a reasonableness standard (Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; and Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339, per Justice Binnie at paragraph 59). At paragraph 59 of Khosa,
above, reasonableness has been articulated as follows:
[…] Where the reasonableness standard
applies, it requires deference. Reviewing courts cannot substitute their own
appreciation of the appropriate solution, but must rather determine if the
outcome falls within "a range of possible, acceptable outcomes which are
defensible in respect of the facts and law" (Dunsmuir, at para.
47). There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome. The standard of review in this
matter is reasonableness for the questions of fact or mixed fact and law and
correctness for questions of law.
[24]
In
Currie, above, the Federal Court of Appeal held that the standard of
review applicable to the case at bar was patent unreasonableness since the
question at stake touches upon the interpretation of a collective agreement, a
function well within the expertise of the adjudicator. However, since Dunsmuir,
above, it is clear that the standard of patent unreasonableness has been
replaced with the standard of reasonableness. Accordingly, the standard of
review in this case is reasonableness.
IV. Issues
[25]
Apart
from the question of the applicable standard of review, the Applicant raises
the following issues:
(a) Was it unreasonable in the
circumstances, for the Adjudicator to order that the job description for the Respondents
be amended?
(b) Was
it reasonable, in the circumstances, for the Adjudicator to preclude the use of
acting pay for situations when the Respondents acted outside their job
descriptions?
[26]
The
Respondents raise the following issues:
(c) Did the Adjudicator commit a
reviewable error by ordering that the Respondents’ job description be amended?
(d) Did
the Adjudicator commit a reviewable error in determining that the receipt of
acting pay was an acknowledgement of the fact that the PM-03 job description
did not accurately reflect the work being performed by the Respondents?
V. Analysis
A. Was It
Unreasonable in the Circumstances, for the Adjudicator to Order That the Job
Description for the Respondents Be Amended?
(1) Parties’ Representations
[27]
The
Applicant does not take issue with the first amendment to the Respondents’
PM-0286 work description. The second and lengthier amendment which I reproduce
again for convenience is the one under consideration:
188 The PM-03 job descriptions of
Mr. Currie, Ms. Wilson, and Mr. Willisko are further amended under “key
activities” by adding the following, after the first key activity:
On an episodic basis, and over
an extended period,
investigating difficult domestic and international tax fraud schemes,
complexity 20, that require minimum or medium accounting knowledge, through the
analysis and evaluation of information and allegations from numerous sources to
ascertain whether available facts indicate fraud in order to ensure compliance
with the statutes administered by the Agency.
[emphasis
added]
[28]
Both
parties agreed that the Adjudicator complied with the Federal Court of Appeals
direction to decide whether the Respondents worked on files of complexity 20
and if answered in the affirmative then “to what extent” the Respondents worked
on higher complexity files: Currie (Federal Court of Appeal), above, at
paragraph 29.
[29]
The
Applicant takes issue with the extent to which the Respondents performed work
of complexity 20 or higher, specifically by describing the period during which
the Respondents worked on complexity 20 files or higher as “episodic”. The
Applicant points out that the word “episodic” stands in contrast to the phrase
“ongoing and permanent” (Adjudicator’s decision, paragraph 169). The Applicant
produced a dictionary definition of the word “episodic” in support of its
argument.
[30]
The
Applicant therefore submits at paragraph 31 of its memo that the Adjudicator
found as a matter of fact that “the performance of complexity rating files 20
by the Respondents was not a regular or permanent part of their job
function. Instead it was episodic.” [emphasis in original]
[31]
The
Applicant submits that the evidence before the Adjudicator indicated that
employees in the PM-03 classification may work on higher complexity rating
files when they are part of a team. The evidence further demonstrated that the
key distinguishing feature between the PM-03 and PM-04 classifications was
the requirement to work as lead investigator on complexity 20 files. The
Applicant takes the positing that the first amendment was within the
Adjudicator’s jurisdiction because it is in keeping with the pre-exiting
content of the PM-0286 job description which allows PM-03 classified employees
to work on higher complexity files as part of a team.
[32]
The
Applicant submits that the amendment in this issue equates to the work of a
lead investigator which is prescribed to a PM-04 classified employee. By ordering
the impugned amendment, the Adjudicator was attempting to indirectly order the
employer to “reclassify the PM-03 job description to a PM-04 job” by using
the exact wording found in the PM-0677 work description. The Applicant submits
that the Adjudicator cannot do indirectly what he or she acknowledged cannot be
done directly, which is to declare that the PM-0677 job description is the
appropriate one for the Respondents: Adjudicator’s decision, at paragraph 167.
It is submitted that this position is consistent with the predominant case law
which recognizes management’s prerogative to assign duties to specific
positions: Batiot, above, at paragraph 51; Beaudry et al. v. Treasury
Board (Department of Human Resources and Skills Development), 2006 PSLRB 75,
86 C.L.A.S. 142; Bungay et al. v. Treasury Board
(Department of Public Works and Government Services), 2005 PSLRB 40, 85 C.L.A.S. 137, at paragraph 57.
[33]
On
a separate note, the Applicant briefly challenges the Adjudicator’s decision
with respect to Mr. Willisko’s grievance at paragraphs 21-24 of the memo. The
Applicant submits that the Mr. Willisko was specifically advised that
during his secondment at the Integrated Proceeds of Crime (IPOC) Unit of the
RCMP that he was not expected to perform any duties beyond those described in
the PM-0286 job description and if any complexity 20 files arose, they should
be reported to the team leader. The Applicant submits that the decision of the
Adjudicator to allow Mr. Willisko’s grievance in part and amend his job
description was unreasonable in light of the above evidence.
[34]
The
Respondents submit that the Adjudicator found that the Respondents worked on
complexity 20 files on “a regular and ongoing basis” and by the very nature of
its work the Respondents would be working on such files “over an extended
period of time”: Adjudicators decision, at paragraph 170. However, the extent
of the Respondents work on complexity 20 files was not “permanent” or
“temporary”. It was evident that the work on complexity 20 files was “regular
and ongoing” in that over lengthy periods of time the Respondents dealt
“exclusively” with such files. Therefore, the Adjudicator found as a matter of
fact that the Respondents worked on complexity 20 files on “a regular and
episodic basis”. The Respondents contend that the descriptive phrase “regular
and episodic” is a reasonable and rational way of describing the work performed
by the respondents.
[35]
The
Respondents submit that the Adjudicator fulfilled what was required of him in
this job description grievance, which was to determine whether the job
description in issue complies with the Collective Agreement by representing a
complete and current statement of the grievor’s duties and responsibilities,
and if incomplete, require the employer to amend the employee’s job
description: Hymander v. Treasury Board (National Parole Board), [2002]
C.P.S.S.R.B. No. 56 (QL), 2002 PSSRB 71, at paragraph 36; Temmerman v. Treasury
Board (Department of Human Resources Development), [2005] C.P.S.S.R.B. No.
10 (QL), 2005 PSSRB 8,
at paragraph 90.
[36]
The
Respondents note that the Adjudicator determined that the PM-0677 job
description is a convenient point of comparison to determine whether the Respondents’
work description accurately reflects the duties being performed: Adjudicator’s
decision, at paragraph 166. The Applicant notes that the Federal Court of
Appeal recognized in Currie, above, at paragraphs 7-9, that the wording
between the PM-0286 and PM-0677 work descriptions is reflected in the higher complexity
rating of the files.
(2) Analysis
[37]
I
agree with the Respondents that using words borrowed from the PM-0677 job
description is a reasonable response to resolve a job description grievance and
does not amount to reclassification of the Respondents’ job from the PM-03 to
the PM-04 classification.
[38]
It
is important to understand the difference between a job description and job
classification. The first can be referred to adjudication while the second is
the prerogative of the employer.
[39]
It
is important to note that the Applicant does not challenge the jurisdiction of
the Adjudicator per se to amend the Respondents’ job description. I have
no doubt that the Adjudicator possesses the requisite jurisdiction in a job
grievance to order the employer to add to the employee’s job description any
duties and responsibilities which the employee performed “during a specific
period of time”: Temmerman, above, at paragraph 90. The Applicant’s
quibble is with the Adjudicator’s use of words found in the PM-0677 job
description to amend the PM-0286 job description. The issue is therefore with
the appropriateness of the remedy, an area which the Adjudicator is entitled to
considerable deference.
[40]
Since
the Supreme Court Canada’s decision in Re Polymer Corporation and Oil,
Chemical, and Atomic Workers International Union, Local 16-14 [(1959), 10
L.A.C. 51; (1961), 26 D.L.R. (2d) 609 (Ont. H.C.) affirmed (1961), 28 D.L.R.
(2d) 81 (Ont. C.A.) affirmed [1962] S.C.R. 338 (Sub nom Imbleau v. Laskin),
it is trite law that arbitrators or adjudicators have remedial powers flowing
from the terms of the Collective Agreement such that they can require the
parties to act in accordance with it.
[41]
The
Federal Court of Appeal has issued strong guidelines to the Adjudicator and this
Court to interpret Article 56.01 of the Collective Agreement in a manner that
does not foreclose its use in the very circumstances which give it purpose: Currie,
above, at paragraph 28. In my view, the Court of Appeal instructed the
Adjudicator to interpret Article 56.01 in a remedial manner.
[42]
When
one considers Article 56.01 through a remedial lens, it is difficult to see why
an Adjudicator’s decision to use words from a higher classified job description
to amend a lower classified inaccurate job description is unreasonable. This
Court has previously held in Chadwick v. Canada (Attorney General), 2004
FC 503, 249 F.T.R. 293, per Justice Richard Mosely at paragraph 24, that
comparing job classifications was a necessary exercise which did not transform acting
pay grievances into classification grievances. The same logic applies to the
situation at hand.
[43]
At
any rate, the suggestion that the Adjudicator simply copied the words found in
job description PM-0677 is untenable. A comparison of job descriptions PM-0286
and PM-0677 reveals they are virtually identical, save for the level of
complexity:
PM-04:
Investigating difficult domestic
and international tax fraud schemes, complexity 20, that require minimum
or medium accounting knowledge, through the analysis and evaluation of
information and allegations from numerous sources to ascertain whether
available facts indicate fraud in order to ensure compliance with the statutes
administered by the Agency.
PM-03:
Investigating routine domestic and
international tax fraud schemes, complexity 10, that require minimum or
medium accounting knowledge, through the analysis and evaluation of information
and allegations from numerous sources to ascertain whether available facts
indicate fraud in order to ensure compliance with the statutes administered by
the Agency.
Amendment:
On an episodic basis, and over an
extended period,
investigating difficult domestic and international tax fraud schemes,
complexity 20, that require minimum or medium accounting knowledge, through
the analysis and evaluation of information and allegations from numerous
sources to ascertain whether available facts indicate fraud in order to ensure
compliance with the statutes administered by the Agency.
[emphasis added]
[44]
The
only changes consist of the qualification “on an episodic basis, and over an
extended period”, and upgrading the lower complexity markers. The fact that the
Adjudicator used words that are common to both the PM-0286 and PM-0677 job
descriptions only indicates the desire of the Adjudicator to work within the
employer’s language. Such a course of reasoning was reasonably open for the Adjudicator
to take.
[45]
The
Applicant further submits the Adjudicator erred when it amended the
Respondents’ job description on the basis of an “episodic” performance of
higher complexity duties, as opposed to an “ongoing and permanent basis”. In my
view, the Applicant is attempting to narrow the remedial interpretation of Article
56.01 of the Collective Agreement in the similar manner which was rejected by
the Federal Court of Appeal in Currie, above. Past adjudicators have
acknowledged that a job description modification order can include temporal
caveats or limitations: Temmerman, above, at paragraph 90. I cannot
accede to the Applicant’s submission that an Adjudicator cannot amend a job
description unless the duties and responsibilities performed by the employees
occurred on a permanent and ongoing basis. This may be evidentiary standard for
a classification grievance, but I am not convinced the Respondents need to
reach it in a job description grievance. As Justice Pelletier
stated in Currie, above, at paragraph 26, the job description is “a
document which must reflect the realities of the employee's work situation”.
The reality of the Respondents’ work situation was that they worked on an
“episodic basis, and over an extended period” on complexity 20 files. The order
of the Adjudicator was reasonably open to him on the evidence before him.
[46]
With
respect to Mr. Willisko’s grievance, it is evident that the Adjudicator did not
provide individual reasons for allowing his grievance in part. Nevertheless,
the Adjudicator considered evidence upon which Mr. Willisko’s grievance was
based, including Mr. Poon’s letter dated November 20, 2000, which allegedly demonstrates
that Mr. Willisko was not expected to perform duties beyond his job
description. It was also evident that Mr. Willisko performed some duties at the
AU2 job classification level, for which he was granted acting pay between 1993
and 1997. The evidence with respect to Mr. Willisko’s claim goes both ways. It
could reasonably lead to the dismissal of the grievance in accordance with Batiot,
above, or it can lead to its allowance. The Court will not intervene and set
aside the Adjudicator’s decision simply because it comes to the opposite
decision. In my view, the decision to allow Mr. Willisko’s grievance was
reasonably open to the Adjudicator on the evidence before him.
B. Was
It Reasonable, in the Circumstances, for the Adjudicator to Preclude the Use of
Acting Pay for Situations when the Respondents Acted Outside Their Job
Descriptions?
[47]
The
Applicant submits that the Adjudicator reached an illogical conclusion in
refusing to dispense acting pay as a remedy for “episodic” performance of
complex duties. The Applicant submits that it is trite law that an employee who
substantially performs duties at a higher level is entitled to acting pay in
accordance with the collective agreement: Stagg v. Canada, [1993] F.C.J.
No. 1393, 71 F.T.R. 307; Beaulieu v. Treasury Board (Federal Court of
Canada), 2000 PSSRB 76, [2000] C.P.S.S.R.B. No. 50 (QL); Beauregard
v. Treasury Board (Transport Canada), [1996] C.P.S.S.R.B. No. 53 (QL), PSSRB File Nos. 166-2-26956, 26957 and 26958.
[48]
The
Applicant submits that remedying “episodic” performance of higher complexity
duties with an amendment to a job description effectively precludes the use of
acting pay on those episodic occasions. Once a duty is included in the PM-0286
level, there is no entitlement to acting pay.
[49]
The
Respondents submit that the fact that employees receive acting pay over
prolonged periods of time is only relevant as acknowledgement that the work
they were performing was not contained in their PM-0286 job description.
[50]
The
Respondents address the Applicant’s argument with respect to the logic of the
remedy by noting that the Adjudicator found that the Respondents worked on
complexity 20 files on a regular and ongoing basis. The Respondents submit that
the fact that the Respondents worked on these files on an “episodic” basis does
not alter the first finding. The Respondents submit the Applicant’s submissions
ignore the purpose and effect of Article 56.01, which requires the employer to
provide employees with a current, accurate, and complete statement of their
duties. When a job description is incomplete, the employer can be required to
provide an employee with a job description where the omissions are rectified: Breckenridge
and the Library of Canada, [1996] C.P.S.S.R.B. No. 69, PSSRB File Nos. 466-L-225 to 233 and 466-L-241 to 245, at
paragraph 76.
(1) Analysis
[51]
The
Applicant’s submissions run squarely against the Federal Court of Appeal’s
decision in Currie, above. The Court rejected an interpretive approach
that forecloses the use of Article 56.01 to obtain an accurate job description.
The Applicant correctly states that Court expressed concerns about acting pay
being used in situations where work was performed outside the job description
“on an ongoing and permanent” basis, but made no mention of “temporary”
performance. Temporary performance of high complexity duties may not require a
job description amendment, however it would be erroneous to suppose that the
Court held that only “permanent” performance of such duties would require an
amendment. The reasons of the Federal Court of Appeal stress the need for a
flexible remedial interpretation of Article 56.01. In my view, Article 56.01 is
capable of accommodating other temporal standards apart from permanence.
“Episodic”, is a reasonable temporal standard for which an adjudicator could
award the remedy of a job description amendment.
[52]
The
submissions of the Applicant assume that acting pay, classification, and job
description grievances are interconnected with each other. This is simply not
the case. More then one kind of grievance may be initiated on the same set of
facts but the result and analysis of each of those grievances is guided by
different articles of the Collective Agreement and legislation. Each type of
grievance contains a discreet range of remedies that is designed to bring the
employer into compliance with the Collective Agreement. There is no conflict or
inconsistency when an adjudicator or the employer decides to award acting pay
and the employee later succeeds in requiring the employer to amend a generic
job description, or vice versa. The acting pay and the job description
amendment are separate remedies that are designed to ameliorate different
deficiencies, inadequate remuneration and an inaccurate job description
respectively.
[53]
Would
an amendment of a job description preclude acting pay? This is a hypothetical
question best left to a future proceeding. In my view, an entitlement for
acting pay arises regardless of the retroactive amendment of a job description.
Future work caught under the amended job description is another matter which
should best be left to another day.
[54]
The
Adjudicator came to the reasonable conclusion that the Respondents’ PM-0286 job
description was incomplete and found that amending their job description was
appropriate in the circumstances. The decision was consistent with the reasons
of the Federal Court of Appeal, in Currie, above. I can detect no
reviewable error in the final determination.
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