Association of Justice Counsel v. Treasury Board

2012 PSLRB 32

  • Before: Renaud Paquet
  • Decision Rendered: 2012-03-14
  • Original Language: English

An application for judicial review before the Federal Court has been discontinued (Court file: T-751-12).

Subject terms:

Policy grievance – Performance pay – Maternity and parental leave – Meaningful evaluation of performance necessary to be eligible for pro-rated performance pay – Compensatory and work-driven benefits

The bargaining agent grieved that the employer contravened the performance pay provisions of the collective agreement – the bargaining agent contested the requirement that employees on maternity or parental leave were required to work a minimum number of months in any given fiscal year – employees absent during part of the review period were eligible for a pro-rated performance increase if, in the year being evaluated, they performed their duties long enough to permit a meaningful evaluation of their performance – the bargaining agent grieved this policy and argued that a parent should not be penalized for taking maternity or parental leave and that in-range progression by performance pay was a pay increment as per the collective agreement – the adjudicator found that the performance pay provisions did not contradict the collective agreement – in-range progression by performance pay is not the same thing as a pay increment – a pay increment is a quasi-automatic progression that occurs at a set date, by a pre-set amount, while an in-range performance increase and performance awards are compensation to reward performance – only those employees who went on leave without pay and who worked long enough to permit an evaluation of their performance were eligible to be paid performance pay on a pro-rated basis – the adjudicator stated that, when determining whether discrimination occurred, a comparative analysis is required – the comparator group in this case was employees on leave without pay – the adjudicator found that, with respect to performance pay, employees on leave without pay are treated the same as employees on maternity or parental leave – the adjudicator further acknowledged that a distinction must be made between plans or benefits that are compensatory and non-compensatory in nature, as well as between seniority-driven and work-driven benefits – the adjudicator held that, as performance pay is a compensatory and work-driven benefit, the employer did not discriminate against employees on maternity or parental leave by pro-rating their performance pay.

Grievance denied.