Doiron v. Treasury Board (Correctional Service of Canada)
2006 PSLRB 77
- Before: Dan Butler
- Decision Rendered: 2006-06-23
- Original Language: English
Acting pay – Classification grievance – Jurisdiction – Timeliness – Continuing grievance – Change in the nature of the grievance – Burden of proof
The grievor claimed acting pay at the CX–02 level for work performed by him while he occupied the position of Admission and Discharge Officer – in his grievance, he claimed acting pay for the period of December 2001 to February 2003, during which he claimed to have trained and supervised Mr. X – at the hearing, he claimed acting pay for the 25–day period preceding the filing of his grievance in October 2003 until he left the position in 2005, claiming that he had trained and supervised several individuals over this period of time – the grievor surveyed other identical positions in his region and discovered that those with two or more correctional officers working in the department had at least one position that was classified at the CX–02 level – in his department, an authorized staffing level of 1.5 person years was provided for, although there was nowhere near this staffing level over the course of his six years in the department – the grievor requested a reclassification, both informally and through a classification grievance, but was unsuccessful – the grievor testified that his job description did not capture all of the duties he was required to perform, in particular the requirement to supervise and train, and that his duties were better matched to the CX–02 job description – the grievor admitted that he was not required to supervise Mr. X’s performance or attendance and did not conduct or provide input to his performance evaluations – the grievor agreed that his duties has always been the same throughout his tenure in the position – the employer objected to the adjudicator’s jurisdiction on the grounds that the grievance was untimely that the grievor had altered the grounds of his grievance at the hearing and that the subject matter of the grievance was classification – the grievor claimed that his grievance was a continuing grievance – the adjudicator held that the statement of the grievance at the hearing changed its nature and did not simply clarify or refine it, and that the grievor had offered no arguments to persuade him to permit the change – the adjudicator held that he would therefore consider the grievance on the basis of its original specification – the adjudicator held that, while the grievance was untimely, the employer had waived its right to object, since it had failed to object to timeliness at any level of the grievance procedure – the adjudicator found that the true nature of the grievance was, in fact, classification, and therefore could not be the subject of a reference of adjudication – even if he had erred in concluding that the grievor had improperly changed the nature of his grievance and that the grievance was a classification grievance, the adjudicator held that the grievor had not met his burden to establish a violation of clause 50.07 of the collective agreement by proving substantial performance of the duties of a higher classification level on a continuing basis for the period in question, as his evidence concerning his duties was general in nature.Grievance denied.