Clarke v. Treasury Board (Correctional Service of Canada)



Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Coat of Arms - Armoiries
  • Date:  20170714
  • File:  566-02-3294, 4217, 4218, 4219, and 6242
  • Citation:  2017 FPSLREB 7

Before a panel of the Federal Public Sector Labour Relations and Employment Board


BETWEEN

SHANE CLARKE

Grievor

and

TREASURY BOARD
(Correctional Service of Canada)

Employer

Indexed as
Clarke v. Treasury Board (Correctional Service of Canada)


In the matter of individual grievances referred to adjudication


Before:
Michael McNamara, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor:
Arianne Bouchard and Sheryl Ferguson
For the Employer:
Christine Langill
Heard at Kingston, Ontario,
October 7 and 8, 2015.

REASONS FOR DECISION

Individual grievances referred to adjudication

1        Shane Clarke (“the grievor”) is a correctional officer 1 (CX-1). He has been employed with the Correctional Service of Canada (“the employer”) since 1998, first at Drumheller Institution in Drumheller, Alberta, then at Kingston Penitentiary in Kingston, Ontario, where he was injured on the job in 2000. At the time of his injury, he was a member of the bargaining unit represented by the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN) and was covered by the collective agreement in force between the employer and that bargaining agent. He subsequently became a member of the bargaining unit represented by the Union of Solicitor General Employees (USGE, a component of the Public Service Alliance of Canada (PSAC)).

2        After his original work injury, and again after a subsequent work injury, the grievor required accommodation. The employer attempted to find the grievor an appropriate accommodation, but for various reasons none of the options resulted in a successful accommodation. Eventually, the grievor received workers’ compensation funded retraining as a paramedic but could only find part time employment. He indicated to the employer that he felt he could be accommodated at the CSC and the employer ultimately offered him a position as a Stores Officer/Driver.

3        The wage rate for that position is lower than that of a CX-1. However, the grievor reluctantly accepted it as the only appropriate position available within the CSC. On February 24, 2010, he received an indeterminate letter of offer and, feeling pressure to co-operate, signed it on March 18, 2010, adding the following in his own hand:

It is with reluctance that I accept this offer. I disagree with this offer in regard to the fact that I could be placed into a CX position with my limitations and I also disagree with the rate of pay difference between my CX level and the KP drivers/stores officer positions mentioned in this offer.

4        The grievor worked in the Stores Officer/Driver position from March, 2010 to May, 2011. However, during this time, both the grievor and his bargaining agent representative continued to advise the employer that he was not satisfied with the accommodation. As a result, the matter continued to be discussed by the Return to Work Committee, and the employer continued to seek a more suitable accommodation for him.

5        The grievor filed seven grievances, all related to the employer’s duty to accommodate his disability and to his dissatisfaction with the accommodation and with the wage rate of the Stores Officer/Driver position. Four of those grievances were referred to adjudication, and mediation took place in February, 2011 with respect to all of them.

6        On February 22, 2011, following mediation, a “Memorandum of Agreement” (MOA) was drafted by the employer and signed by the employer, the grievor, and both bargaining agents with respect to four UCCO-SACC-CSN supported grievances (file numbers 566-02-3294, 4217, 4218, and 4219) and the three USGE (PSAC) supported grievances (file numbers 41962, 41963, and 41964).

7        The MOA sets out that the grievor was to begin the Correctional Training Program and that upon successfully completing it, the employer would offer him the CX-1 position at the North Gate of Kingston Penitentiary, which had been identified as one that would accommodate his disability.

8        The MOA was intended to resolve the seven grievances (four of which had been referred to adjudication) and the grievor was to withdraw them once it was implemented.

9        The grievor completed the training and received a letter of offer dated May 12, 2011, for the accommodated CX-1 position, effective May 11, 2011. This letter contains the first and only mention of a wage rate. It states as follows: “The salary range for this group and level is $52,347 to $66,088 per annum. Your rate of pay on the effective date of this offer will be determined in accordance with the Public Service Terms and Conditions of Employment Regulations.”

10        Upon receiving his first paycheque, the grievor was surprised to see that his wage rate was that of an entry-level CX-1. When he was originally a CX-1, prior to being injured, he had been receiving the maximum rate for the CX-1 position.

11        On July 22, 2011, with his bargaining agent’s support, the grievor filed a new grievance (file number 566-02-6242) to the effect that paying him the entry-level wage rate in the new CX-1 position was discrimination on the basis of disability, contrary to article 37 of the relevant collective agreement and the Canadian Human Rights Act. This grievance was referred to adjudication and notice was given to the Canadian Human Rights Commission.

12        The grievor has not withdrawn grievances 566-02-3294, 4217, 4218, 4219 or grievances 41962, 41963, and 41964, which the MOA obligated him to do ‘upon implementation of the terms of settlement.

13        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the names of the Public Service Labour Relations and Employment Board and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”) and the Federal Public Sector Labour Relations Act (“the Act”).

Summary of Arguments

14        The grievor alleges that the employer has not fulfilled the terms of settlement of the Memorandum of Agreement because it is not paying him the maximum rate for a CX-1 position. The grievor submits that since he was previously paid at the maximum CX-1 rate and since the reason for his accommodation was a disability related to his work injury, the employer’s duty to accommodate requires that it continue to pay him at his original wage rate. The grievor and both bargaining agents assumed that he would return to the CX-1 classification at the wage rate he was receiving when he was injured. There was no indication to the contrary.

15        The employer raises a preliminary issue to the effect that it has fulfilled the terms of the MOA and that the only matter left outstanding is that the grievor has not withdrawn the grievances as he is obliged to do. The employer submits that I have no jurisdiction to deal with the implementation of the MOA - that it has been fully implemented and cannot be grieved.

16        The employer further explains its position that because the Stores Officer/Driver position was paid at a lower rate, the grievor’s move from Stores Officer/Driver to CX-1 constituted a promotion. The wage rate for promotions is determined by the Directive on Terms and Conditions of Employment (“the Directive”), which states that the wage rate on a promotion is to be the one nearest that to which the employee was entitled in his previous substantive position that provides a pay increase. Therefore, according to the employer, the CX-1 entry-level rate is the appropriate wage rate in these circumstances.

17        There was no discussion about the applicable wage rate during mediation and the MOA is silent with respect to this issue.

Reasons

18        This hearing was held to determine the preliminary issue of whether the MOA dated February 22, 2011 resolves grievances 566-02-3294, 4217, 4218, 4219 and 6242.

19        I find that the MOA does not resolve grievance 6242. This grievance was filed months after the MOA and could be resolved by it only on the basis of an issue estoppel. Issue estoppel does not apply here, the MOA dealt with the offer of the CX-1 position to the grievor, but not the wage rate. Grievance 6242 specifically raises the issue of wage rate.

20        I further find that the MOA does not fully resolve grievances 566-02-3294, 4217, 4218 or 4219.

21         The employer argues that the grievor received a promotion from Stores Officer/Driver to CX-1 and was paid accordingly as set out in the Directive on Terms and Conditions of Employment. The grievor and the bargaining agent argue that this was not a promotion, it was an accommodation and that upon reinstatement to his previous position it was assumed that the grievor would receive the same wage rate he had received previously in that position.

22        The employer drafted the memorandum of agreement and never addressed the issue of wage rate. The employer knew, from several of the grievances filed, that wage rate was an issue of importance to the grievor. Yet, there was no discussion of it during mediation.

23        It is not good enough for the employer to ignore the issue, only to advise the grievor months later that he would be receiving an entry level wage rate in a position in which he had previously received the maximum wage rate. If there was a good reason for the employer to take that position, it should have been explained to the grievor. It was incumbent on the employer to raise the issue for discussion at mediation and, if agreement was reached, to ensure that the wage rate was clearly specified in the MOA.

24        I find that I have jurisdiction to determine whether there was a final and binding Memorandum of Agreement, see Amos v. Deputy Head (Department of Public Works and Government Services 2008 PSLRB 74and Canadian National Railway Company 2006 CIRB no. 362.

25        In this case, a full and final settlement has not been reached. The Memorandum of Agreement, in my view, constitutes a full and final settlement with respect to all other aspects of the dispute between the parties, however, there was no agreement with respect to wage rate.

26        For all of the above reasons, the Board makes the following order:

Order

27        A new hearing date will be scheduled as soon as possible, to deal solely with the issue of the grievor’s wage rate.

July 14, 2017.

Michael F. McNamara,

a panel of the Federal Public Sector

Labour Relations and Employment Board