Principles drawn from Federal Court, Federal Court of Appeal and PSLRB decisions

Introduction

Over the years, a number of decisions issued by the Federal Court (FC), the Federal Court of Appeal of Canada (FCA) and the Public Service Labour Relations Board (PSLRB) have highlighted some of the fundamental principles to be observed in the classification grievance resolution process. These decisions also stress the importance of complete and accurate documentation and draw attention to the responsibilities of managers and classification experts within departments regarding transparency, probity and integrity of work description writing and job evaluation.

This document features a brief summary of these principles, as well as a reference to the full text of landmark decisions. It is intended for all individuals involved in the classification process, whether employees, managers or human resources professionals, to help them in the exercise of their respective responsibilities. It will be of particular interest to members of Classification Grievance Committees, as a source of guidance complementary to the current Classification Grievance Procedure.

Job content / Statement of duties

• A job description does not need to contain a detailed listing of all activities performed under a specific duty, nor should it necessarily list at length the manner in which those activities are accomplished. (PSLRB: Hughes, Jarvis; FC: Currie)
• Duties assigned to a position may be appropriately described in a generic work description. It is acceptable to use broad terms to subsume a number of functions and activities. (PSLRB: Jaremy)
• If a duty is not contained in a generic or a specific job description, it must be added in order to meet the requirements of the collective agreement for a complete and current Statement of Work. (PSLRB: Cushnie)

Time limits for submissions of a classification grievance

• The conditions of admissibility of classification grievances (time limits) continue to apply unless one is able to prove that an agreed practice existed and altered the provisions of the Classification Grievance Procedure. (FC: Trépanier)

Conduct of grievance hearing

• The onus is on the grievor to make the case that the classification decision was wrong. (FC: Chong, Bulat, Argyracoupoulou, Utovac II)
• Time constraints must not be imposed on the grievor's presentation before the Classification Grievance Committee. (FC: Lapointe I)
• Translation, teleconferencing and videoconferencing services should be made available as required. In accordance with the Classification Grievance Procedure, an employee who wishes to be present at the grievance hearing is responsible for his or her expenses. (FC: Lapointe I)
• When the information presented by the grievor is not in an acceptable form, he or she should be provided a short period of time to provide additional information. (FC: Maurice)
• The grievor should be informed and allowed to reply if any new fact or information presented to the Committee could alter the grievance decision, such as:
  • changes in the classification of positions presented as relativity (FCA: Chong III);
  • additional relativity examined by the Committee; and
  • information provided by management or by experts that contradicts facts presented by the grievor or that the grievor could not reasonably have known. (FCA: Chong III; FC: Hale, Bulat, Grauer)
• When the Committee decides to review an aspect of the classification assessment that the employee did not think was in dispute, and relies on evidence not disclosed to the employee, the information must be provided to the employee and he or she should be given the opportunity to comment. (FC: Hale)

Deliberations and evaluation

• The decisions resulting from classification grievances reflect a high level of expertise from the Classification Grievance Committee and the decision maker, who operate under a particular and specialized regime. (FC: Adamidis; FCA: Gilbert)
• The Classification Grievance Committee must consider the benchmarks for its evaluation of the position as well any proposed relativity. (FC: Argyracoupoulou)
• When positions are presented for relativity, the Classification Grievance Committee should provide a detailed analysis of the differences and similarities between these positions and the grieved position. (FC: Maurice, Chong I)
• Principles of equality and consistency require that two jobs whose descriptions appear to be the same be classified equally, unless there are reasons for treating them differently, e.g., regional differences. (FC: Laplante)
• The Grievance Committee should not perpetuate anomalous classification decisions. The anomalies found in a large and complex structure cannot be the driving force to a fair classification system. (FC: Eksal)
• An employee is not entitled to be paid at a higher classification rate for work performed before that higher classification was created. (FC: Heppell)

Grievance report

• The Classification Grievance Committee must address arguments and relativity put forward by the grievor, and deliberations on the matter must be included in the grievance report. (FC: Lapointe, Maurice)
• The report should clearly indicate how the Classification Grievance Committee arrived at its recommendation, including why the position was evaluated within a specific occupational group and why other group allocations were not retained. (FC: Laplante)
• If the current classification is being confirmed, a complete rationale must nevertheless be developed. Statements such as "No change to ratings" are not acceptable. (FC: Laplante)
• The grievance decision should logically flow from the analysis of factors and benchmarks as set out in the report. (FC: Lapointe II, Gilbert)
• Outside parties, such as departmental management, are restrained from trying to influence the Committee and from reviewing the report or draft thereof until it is signed by the decision maker. (FC: Gilchrist et al.)

Contesting a grievance decision

• Disagreement with the Classification Grievance Committee's analysis and conclusions is not sufficient grounds to attack the decision signed by the deputy head. (FC: Adamidis, Groulx)
• The fact that the Classification Grievance Committee was not aware of one piece of evidence which was not submitted is not grounds to attack the grievance decision. (FC: Groulx)
• Because the Classification Grievance Committee exercises highly specialized functions and possesses classification expertise, the Court ought to accord high deference to the grievance decision and to apply reasonableness as the standard of review of the decision. (FC : Gilbert, Grauer, Bégin)
• When the Federal Court determines that a judicial review application ought to be granted with respect to a decision following a Classification Grievance Committee recommendation, it should refer the matter back for reconsideration. (FCA: Gilbert)

References

Federal Court and Federal Court of Appeal

Grievor	Decision	Appeal
Adamidis	2006-02-23 T-250-05	—
Argyracoupoulou	2003-11-07 T-620-02	—
Bégin	2009-06-16 T-2168-07	—
Bulat	1998-07-08  T-1191-97	2000-01-31 A-454-98
Chong
Chong III	—	1999-02-09 A-453-97
Chong II (available in French only) Result of Federal Court decisions on the Classification Grievance Procedure. (reference letter to chiefs of classification dated February 13, 1996, from the Treasury Board)	1997-06-16 T-905-96	—
Chong I	1995-11-30 T-2490-94	—
Currie et al. (CRA decision)	2005-05-24 T-1413-04	2006-05-24 A-302-05
Eksal (CRA decision)	2005-05-25 T-1533-04	2006-02-06 A-263-05
Gilbert	2008-02-15 T-1823-06	2009-03-11 A-113-08
Gilchrist et al. (CFIA decision)	2005-09-27 T-2173-04	—
Grauer	2009-03-06 T-240-08	—
Groulx	2007-03-19 T-2170-05	—
Hale	1996-05-23 T-1029-95	—
Heppell (CRA decision)	2005-09-30 T-1177-04	—
Laplante (CFIA decision)	2004-09-30 T-928-03	—
Lapointe et al.
Lapointe II	2006-06-09 T-1320-05	—
Lapointe I	2004-02-18 T-700-03	—
Maurice	2004-06-30 T-905-02	—
Trépanier	2004-09-28 T-279-03	—
Utovac
Utovac II	2006-05-29 T-1831-04	—
Utovac I	2004-11-18 T-732-04	—

Public Service Labour Relations Board

Grievor	Decision	Appeal
Cushnie	2007-09-13 166-34-37315	—
Demers	2004-08-20 161-34-1226	—
Hughes Treasury Board Bulletin sent to heads of human resources on September 11, 2000. Subject: Use of Generic and Broad-Banded Work Descriptions	2000-07-25 166-2-2945	—
Jaremy et al. Treasury Board Bulletin sent to heads of human resources on September 11, 2000. Subject: Use of Generic and Broad-Banded Work Descriptions	2000-06-23 166-2-28628	—
Jarvis et al.	2001-08-03 166-2-29603 to 29619	—