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166-2-31346 and 31347 (2003 PSSRB 67), Zelisko and Audia v. Treasury Board (Citizenship and Immigration Canada)
Before: D.R. Quigley
Appearances: C. Dann, for the Grievors; R. Armstrong, for the Employer
Decision rendered: August 5, 2003
Overtime – Change in employer policy – Exercise of management rights – Jurisdiction to amend employer policy – the grievors work in the Admissions Unit of CIC in Calgary from Monday to Friday for seven and one-half hours per day – from 1990 until October 2000, any CIC officer who completed the proper training was eligible to have his or her name added to a rotational list and would, from time to time, be asked to escort individuals who were being deported – both grievors were on the list since, at the time, they possessed the required training – in October of 2000, the employer changed the policy concerning removals, requiring new qualifications and deciding that only enforcement officers would perform removals – the grievors were no longer eligible to perform removals once the change in policy became effective and they grieved – management felt that removals were enforcement work, required special qualifications, and that allowing officers other than enforcement officers to perform the work would have a negative impact upon operational requirements (since removals could take an officer away from the office for four or five days at a time) and would create morale problems among the Enforcement Officer group – the grievors argued that sub-clause 28.05(a) of the PA collective agreement, requiring the employer to make every reasonable effort to distribute overtime work on an equitable basis among readily available qualified employees, had been violated – the employer argued that operational requirements in the Admissions Unit were such that officers working in that unit could not perform escort work since such work would take them away from their regular duties – the adjudicator held that while it was up to the employer to determine who was available for escort duties based on operational requirements, it could not exercise this authority in a manner which is arbitrary, discriminatory or in bad faith – the adjudicator found that while the grievors might not normally be available for escort duties, given their regular duties, they might be available on evenings and weekends and held that the employer had to base its decision on the facts surrounding each particular escort – finally, he held that he could not grant the corrective action requested by the grievors since they requested that he amend the policy and that they be offered escorts on a rotational basis, because there is no jurisdiction under the Public Service Staff Relations Act for an adjudicator to order the employer to amend one of its policies – however, the adjudicator did find that the grievors were wrongly denied overtime opportunities between the date on which their names were removed from the rotational list and the date of the official change in the policy during the winter of 2002 and he therefore awarded each of the grievors compensation for the period of time during which the employer should have offered them escort duties, that is, the period of time during which they were available and still possessed the appropriate qualifications.
Grievance allowed in part.