Jones v. Treasury Board (Correctional Service of Canada)
2013 PSLRB 70
- Before: Kate Rogers
- Decision Rendered: 2013-06-17
- Original Language: English
Collective agreement interpretation – Acting pay – Instructor allowance – Res judicata – Whether grievor substantially performed the duties of a higher classification
The grievor was employed as a correctional officer at the CX-02 level – he grieved the employer’s refusal to grant him acting pay at the CX-03 level for all the days that he acted as a self-contained breathing apparatus (SCBA) instructor, in accordance with clause 49.07 of the collective agreement – the employer argued that he had not been in an acting capacity and that he had been paid the instructor allowance in accordance with clause 43.05 of the collective agreement – the grievance was one of 42 included in Timson et al. v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 8, in which the grievances were allowed on the basis of res judicata – on judicial review, the Federal Court remitted the grievances back to the Board for re-hearing, and the parties elected to proceed with only this grievance as a test case – initial SCBA training is taught to recruits over two days as part of the Correctional Training Program by Staff College training officers – one-day refresher courses are given annually to all correctional officers on-site in institutions by CX-02s, referred to as “site instructors” – they are removed from the regular roster and perform only training and fit-testing duties for the six weeks each year that are set aside for SCBA refresher training – the grievor maintained that the two courses were identical – the grievor did not prepare the written materials, identify training needs, plan the training or schedule the participants, repair or maintain equipment, participate in course analysis or curriculum design, evaluate participants, or provide advice and counsel, as did Staff College training officers – the adjudicator held that res judicata did not apply to this case – the earlier case involved different facts and a different collective agreement – the addition, in the collective agreement at issue, the instructor allowance was important – the Staff College instructor training was more extensive than simply providing SCBA instruction – the grievor’s role as site instructor was not subsumed within the reference in his job description to “on-the-job mentoring and coaching,” but the CX Classification Standard and benchmark positions included some responsibility for training – although the grievor performed duties that fell outside his job description, it was not necessarily the case that he had substantially performed the duties of a higher classification – the evidence was clear that the grievor had not performed many of the CX-03 duties – the act of providing instruction was only a small portion of the job of a Staff College instructor – unless it is a major and unique part of the higher classification, isolating one task does not amount to substantial performance – the existence of clause 43.05, which provides for an instructor allowance, lends support to the conclusion that the grievor was not acting as a Staff College instructor.