bout de papier, Vol. 4, No. 3 (1986) — Fall 1986 // Automne 1986, p. 41
Between: Colin D. Robertson, grievor, and Treasury Board (External Affairs), employer.
Before: Michael Bendel, Deputy Chairman, Catherine MacLean, counsel for the grievor, Mylène Bouzigon, counsel for the
emplover.
In his grievance, Colin Robertson, an employee in the Department of External Affairs, claims that the employer violated clause 8.04 of the collective agreement between the Treasury Board and the Professional Association of Foreign Service Officers (Code 312/85) by increasing his salary. effective April 1, 1985, by only four per cent when his most recent pertormance appraisal had assessed his performance as “outstanding”. Clause 8.04 reads as follows:
Effective April I of each year, commencing April 1, 1985, and subsequent to application of clause 8.03 an employee at Level FS-1, 2 or 3 whose performance is assessed “acceptable” shall receive an increase of two per cent in his rate of pay or such portion of the increase as would bring him to the maximum of his range; an employee assessed “fully satisfactory” shall receive an increase of four per cent in his rate of pay or such portion of the increase as would bring him to the maximum of his range; an employee assessed “superior” shall receive an increase of six per cent in his rate of pay or such portion of the increase as would bring him to the maximum of his range, and an employee assessed “outstanding” shall receive an increase of eight per cent in his rate of pay or such portion of the increase as would bring him to the maximum of his range. (Arbitral Award — September 24, 1985)
The facts relating to Mr. Robertson’s grievance are quite simple and are not in dispute.
Mr. Robertson was appointed a Foreign Service Officer in September 1977, his classification on appointment being FS 1 (Development). A year later, he was promoted to the FS I level. In the fall of 1984, in accordance with the appraisal system for Foreign Service Officers, his performance was appraised as “outstanding” for the period from August 1983 to July 1984. Effective January 3, 1985, he was promoted to the FS-2 level, a promotion that (as is quite common for Foreign Service Officers) involved no change in his duties. In November 1985 he was informed that his performance for the 1983-84 appraisal period had been judged as outstanding but that the departmental policy is to award newly-promoted officers four per cent performance pay”. The four per cent increase was to be effective on April 1, 1985. The sole reason for the delay in informing him of his assessment for 1983-84 and of his increase was that the collective agreement was not signed until November 4, 1985
William Bottomley, Deputy Director of Appraisal and Employment Programs in the department, testified that, as of April 1, 1985, the grievor’s performance at the FS-2 level had not yet been the subject of an appraisal, as he had only been at that level for three months. The policy of the department, he testified, was that employees who had been promoted and had not been at their new level for at least four months were deemed to be performing at the fully satisfactory” level. He stated that management’s expectations of employees varied according to their levels, and this was reflected in the selection standards. Thus, performance that might be “outstanding” for an employee at the FS I level would not necessarily be considered as outstanding” for one at the FS 2 level He acknowledged that the purpose of performance pay was to encourage high standards of pertormance and to provide management with a system of incentives (additional to promotions) to motivate employees.
Counsel for the grievor argued that, upon the plain meaning of clause 8.04 of the collective agreement, Mr. Robertson was entitled to an eight per cent increase, since his performance, in his most recent appraisal, had been judged as “outstanding. The employer, according to Ms. MacLean, was in reality trying to add a qualification to clause 8.04, namely that the eight per cent increase would only be payable if an employee’s performance had been assessed as outstanding at the level at which he was being paid at the time of the increase She maintained that this qualification was neither explicit nor implicit in clause 8.04.
Ms. MacLean further argued that the employer’s policy was not in keeping with the logic of the appraisal and performance pay systems. Specifically, she maintained that the pertormance pay increase due in April 1985 was necessarily based on an employee’s level of performance during the period from August 1, 1983 to July 31, 1984 Increases were designed to compensate employees for prior performance, and, according to the logic of the system, an intervening promotion should be a matter of no consequence Counsel referred to Hughes and Peel (Board Files 166-2 8446 and 8447), in which Mr. Frankel, in relation to the same collective agreement provision, emphasized that the agreement did not purport to regulate the appraisal process but attached importance solely to the final outcome of that process. According to Ms. MacLean, the only relevant outcome of that process in the case of Mr. Robertson was an assessment that his work was “outstanding”.
Ms. Bouzigon maintained that clause 8.04 envisaged that an employee would only be entitled to a performance pay increase if there had been an appraisal of his performance at the level at which he was being paid in April 1985. Mr Robertson was therefore, strictly speaking, not entitled to any performance pay increase in April 1985. In the absence of provision for such an increase, however, the employer, in the exercise of its management rights. had decided that such employees should receive a four per cent increase. Ms. Bouzigon stressed that there were different selection standards for each level within the Foreign Service Group, and that it did not make sense to reward an FS-2, receiving an FS-2 salary, with an increase that, in percentage terms, would have been appropriate for an FS-1. She also noted that his promotion to the FS 2 level had been based on the appraisal of his performance as an FS.
Counsel argued that the employer had a discretion in assessing the performance of employees, and she cited Hughes and Peel (supra)and Hassan (Board File 166-2 2075). She suggested that, for the purpose of clause 8.04 of the collective agreement, the department’s policy of awarding newly-promoted officers four per cent performance pay could be regarded as an “assessment”, Reference was also made to the decision in Eveleigh (Board File 166-2 13674),
In my view, the language of clause 8.04 of the collective agreement is clear and unambiguous. If an employee has been assessed outstanding”, he is to receive, effective April 1, 1985, an increase of eight per cent in his rate of pay. In Mr. Robertson’s case, the most recent assessment of his performance, for the period from August 1983 to July 1984 was at the outstanding” level. Based on the language of the agreement, I can see no good reason for concluding that the appraisal of his performance completed in the fall of 1984 should not be used for the purpose of deciding his performance pay increase in April 1985. The language of clause 8:04, in my view, does not contain even a hint that performance pay increases must be based on assessments of employee’s performance at their current levels.
It is true, as Ms. Bouzigon argued, that the employer has considerable discretion in conducting performance appraisals. note, for example, that there is nothing in the agreement relating to the standards or modalities of performance appraisal. As noted in Hughes and Peel (supra), however, clause 8.04 focuses on the outcome of the performance appraisal system, and, in the case of Mr. Robertson, the only relevant outcome was a judgment that his performance in 1983-84 had been “outstanding”
Since, in my view, the language of the collective agreement is so clear and its application to Mr. Robertson so obvious, I do not consider that it is necessary for me to express any views on the submissions made by counsel concerning the logic or policy underlying the performance pay system provided for in clause 8.04 of the collective agreement.
The grievance is therefore allowed. Mr Robertson is entitled to be paid, effective April 1, 1985, a performance pay increase of eight per cent rather than the four per cent he was granted by the employer.
Michael Bendel, Deputy Chairman: OTTAWA, June 26, 1986.
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Originally published in bout de papier, Vol. 4, No. 3 (1986) — Fall 1986 // Automne 1986, p. 41. Read the rest of this issue →
