Date: 19990111
Docket: T-1533-96
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
GERALD JOSEPH CLEARY
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Ottawa, Ontario,
on Wednesday, December 9, 1998, as edited]
ROTHSTEIN J.:
[1] The issue in this judicial review is whether an adjudicator under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, made a reviewable error when he concluded that the respondent, a civilian employee of the Department of National Defence, whose occupation was classified as level EG-05, was entitled to acting pay at the rate of pay for a Major in the Armed Forces because he substantially performed the duties of a Major for a temporary period.
[2] The parties agree, as do I, that the standard of review from the decision of an adjudicator under the Public Service Staff Relations Act is patent unreasonableness. In other words, the error must be obvious. See Barry v. Canada (Treasury Board) (1997), 221 N.R. 237 at 239-240 (F.C.A.).
[3] The respondent had been asked to perform, and did perform, on an acting basis, the duties of a Major, apart from military duties. As a result, he was reclassified by DND as level EG-06. He was paid at the lowest rate of pay for an EG-06. The respondent grieved, saying that he was entitled to the rate of pay of a Major but was prepared to accept the highest rate of pay for an EG-06. Even at the highest rate of pay for an EG-06, he would be receiving less than a Major. However, he said he would be satisfied with this rate of pay.
[4] The adjudicator agreed with the respondent:
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In the instant case, the grievor performed on an acting basis the duties of a position that was classified at the rank of Major and the Master Agreement provides that Mr. Cleary is entitled to acting pay as if he had been appointed to that higher classification level. |
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Accordingly, Mr. Cleary's grievance is allowed and I direct the employer to compensate him, as he requested, at the top level of the EG-06 classification for the duration of his acting assignment. |
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[5] The applicant, Attorney General of Canada, says the adjudicator erred by purporting to treat the rank of Major in the Armed Forces as a classification level applicable to the respondent, a civilian. The contract governing the respondent's employment was a Master Agreement between the Treasury Board and the Public Service Alliance of Canada entered into on May 17, 1989. The provision relied upon by the respondent before the adjudicator was clause M-27.07 which provides:
(a) When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least the period specified in (b) below, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had been appointed to that higher classification level for the period in which he or she acts.
a) Lorsque l'employé-e est tenu par l'employeur d'exécuter à titre intérimaire une grande partie des fonctions d'un employé-e d'un niveau de classification supérieur et qu'il exécute ces fonctions pendant au moins la période indiquée à l'alinéa b) ci-dessous, il touche, pendant la période d'intérim, une rémunération d'intérim calculée à compter de la date à laquelle il commence à remplir ces fonctions, comme s'il avait été nommé à ce niveau supérieur.
[6] Clause M-27.07 had been the subject of interpretation by an adjudicator and the Trial and Appeal Divisions of the Federal Court in a case somewhat similar to this one; a grievance of Julie Francoeur, a civilian, who, being asked to do work that was to be done by an RCMP Corporal, claimed that she should be paid at the RCMP Corporal rate. The adjudicator ruled against Ms. Francoeur on the basis that the French version of Clause M-27.07 restricted classifications to levels recognized under the collective agreement only. (Francoeur v. Canada (Attorney General) January 20, 1995, PSSRB file 166-2-25922.)
[7] In the Trial Division of the Federal Court, Richard J. (as he then was), allowed the judicial review of the adjudicator's decision: (1996), 112 F.T.R. 113. He found the English version of clause M-27.07 to be most faithful to the scheme of the collective agreement and that it availed to the benefit of the employee, even when the duties which the employee performed were not covered by the same bargaining unit as the employee's.
[8] The Federal Court of Appeal reversed Richard J. on the basis that the adjudicator's decision was not unreasonable and therefore intervention by the Federal Court on judicial review was not warranted: (1997), F.C.J. No. 758 (Q.L.) A-224-967, June 3, 1997. Marceau J.A. stated:
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On the contrary, we believe that it is certainly not unreasonable to prefer the more restrictive version, as the adjudicator did " a basic rule when interpreting two official versions that differ, and a rule that the interpreter cannot disregard without a serious reason, because doing so leads the interpreter to ignore an express restriction in the provision " and thereby to sanction the idea that questions concerning the remuneration of employees in a bargaining unit must be resolved on the basis of the hierarchical classification of positions reserved for those employees alone. |
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[9] The issue here is whether clause M-27.07 allows for recognition of a higher classification outside the hierarchy of classifications of the collective agreement applicable to the respondent. In other words, was the respondent entitled to be classified as a Major? The adjudicator appears to have interpreted clause M-27.07 in this manner and in doing so, appears to have relied on the decision of Richard J. in the Federal Court Trial Division, the Federal Court of Appeal decision not having been issued at that time. The applicant says that on the basis of the subsequent Federal Court of Appeal decision, the adjudicator's decision is patently unreasonable and judicial review should be allowed.
[10] I have difficulty with the notion that the classifications referred to in clause M-27.07 contemplate recognition of classifications outside the collective agreement. Indeed, the apparent difference between the English and French versions of clause M-27.07, it seems to me, would be reconcilable if the interpretation of "classification" in the clause was restricted to levels recognized by the collective agreement. Therefore, I think the adjudicator may not have been correct in his decision.
[11] However, the interpretation of clause M-27.07 has been the subject of conflicting views in Francoeur. While the Federal Court of Appeal appears to be of the view that a more restrictive interpretation of clause M-27.07 is "certainly not unreasonable" I do not read that decision to be a determination of the matter. The substance of the Court of Appeal's decision is that the Trial Division erred in interfering with the decision of the adjudicator because, in the view of the Appeal Court, the adjudicator's decision was not unreasonable.
[12] In the case at bar, I do not have the full collective agreement in the record. In particular, I have nothing other than clause M-27.07 to help me interpret the word "classification" as it is used in that provision and in particular, whether it precludes consideration of classifications outside the collective agreement. As I have said, it seems as if the classifications should be those recognized by the collective agreement only. However, without something more to go on, I am not prepared to say that the adjudicator's decision was patently unreasonable.
[13] The judicial review is dismissed. The respondent is entitled to costs of $2,000.00 inclusive of disbursements.
J U D G E
OTTAWA, ONTARIO
JANUARY 11, 1999
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