Stagg v. Canada ( Treasury Board )
T-1604-92
Muldoon J.
15/12/93
11 pp.
Application for judicial review of PSSRB adjudicator's decision lacking jurisdiction to adjudicate applicant's grievance alleging employer's failure to grant retroactive remuneration breached master agreement -- Applicant immigration adjudicator -- Notwithstanding change in responsibilities effective January 1, 1989 as result of amendments to Immigration Act, applicant's position continuing to be classified at same level until July 3, 1990 -- Adjudicator declining jurisdiction on ground to grant retroactive remuneration would effectively reclassify position retroactively in manner prohibited by Public Service Staff Relations Act -- Act, s. 92(1)(a) permitting reference to adjudication of grievance concerning interpretation or application in respect of employee of provision of collective agreement or arbitral award -- S. 97(2) confirming once grievance referred to adjudication, adjudicator must consider grievance and thereafter "shall render decision thereon" -- S. 7 stating nothing in Act shall be construed to affect right or authority of employer to determine organization of Public Service and to classify positions therein -- Master agreement, clause M-27.07(a) providing when employee required by employer to substantially perform duties of higher classification level in acting capacity, employee shall be paid acting pay calculated from date on which commenced to act -- Applicant submitting employer denying her acting pay to which entitled under Master agreement -- Respondent submitting acting position not part of employee's normal duties, but involving different, temporary position of higher classification for specific purpose -- Application allowed -- (1) Adjudicator based decision upon erroneous finding of law and fact that grant of retroactive remuneration constituted retroactive reclassification -- Applicant substantially performed duties of PM-05 classification during period in question, although classified as PM-04 -- Eventually promoted to PM-05 classification -- Question of fact whether applicant working in "acting capacity" -- Reference to PSSRB cases in which employee who substantially performs duties of higher classification level, prior to upward classification of that position to higher level, entitled to compensation at rate of pay applicable to higher classification -- (2) Also erred in law in finding grant of relief sought contrary to Act, s. 7 -- Case clearly one of remuneration, not "classification" -- No reason for adjudicator to decline jurisdiction -- S. 7 not engaged herein -- S. 7 not relieving employer of contractual obligations, arising from collective agreement, relating to rates of pay -- Public Service Staff Relations Act, R.S.C., 1985, c.P-35, ss. 7, 92(1)(a), 97(2).