10 - Leave Reconciliation Initiative
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10 - Leave Reconciliation Initiative

*  Updated on February 11th, 2015
** Updated on February 13th, 2015
*** Updated on April 14th, 2016
1. Does a department have the authority to conduct an internal audit in relation to such matters as leave of absence reports?
Yes.  Each department of the federal public administration has obligations pursuant to Part 1.1 of the Financial Administration Act (FAA) to, among other things, appoint an audit committee.  

Additionally, the deputy minister has an obligation in his or her role as an accounting officer to report to the appropriate committees of the Senate and the House of Commons on such things as the measures taken to maintain effective systems of internal control in the department and the performance of other specific duties assigned to him or her by or under this or any other Act in relation to the administration of the department.  For more information, please refer to Part 1.1 of the FAA.  

2. Under what authority does a department have the right to go back in time to correct anomalies that were identified in an internal audit report?
The FAA allows for the recovery of overpayments on account of salary, wages, pays or pay allowances and authorizes Treasury Board to develop directives in this regard. See ss. 38, 39 and 155 (3) of the FAA and the Treasury Boardīs Directive on Terms and Conditions of Employment (Section 15 of the Appendix).

The AJC is of the view that leaves do not fall within the meaning of overpayments under section 155 (3) of the FAA. This therefore means that the authority to recover would fall under the departmentīs management rights set out in section 5.01 of the collective agreement.  

Such management rights would give the employer some discretion to correct errors. However, according to the PSLRB decision in Murchison v. Treasury Board (HRSDC), such discretion must be exercised reasonably. According to this decision, the recovery caused by the negligence of the employer, which allowed the amount to balloon over years, would be an unreasonable exercise of discretion. Not to mention that our members have likely detrimentally relied on the employerīs approved records being accurate.

3. How far back can a department claim an overpayment? In other words, what is the limitation period?
Any government claim for overpayment on account of salary, wages, pay or pay allowances, is subject to a 6-year limitation period pursuant to s. 32 of the Crown Liability and Crown Proceedings Act.  This was confirmed in 2003 by the Supreme Court of Canada in Markevich v. Canada and in 2009 by the Federal Court in Gardner v. Canada (Border Services Agency).

This limitation period is further acknowledged in the attached Treasury Board memo. It provides clear insight on why members should not acknowledge any discrepancy that falls outside the 6-year limitation period.  This will help ensure that members do not assume any potential additional debt beyond 6 years.

Notwithstanding the above, in the case of recoveries related to leaves of absence, managementīs discretion should be exercised reasonably. What is reasonable is a question for the PSLRB.

4. Does the DOJ or PPSCīs recent leave reconciliation initiative fall within the purview of the collective agreement?
Yes. As explained above, management rights provide for a reasonable exercise of discretion. See Murchison v. Treasury Board (HRSDC).
5. Why were the managementīs requirements to document and reconcile leave not made known to me and why do I now have the onus of demonstrating that my prior leaves were approved for legitimate purposes? Doesnīt management have a role to play here?
None of this makes sense to us either.  The AJC is at a loss on why management is not being held accountable for failure to apply and enforce a process that we know has been inconsistently applied and communicated to our members for years.  All we can suggest is for you to ask management to consider in clear situations where you have received contradictory, or no instructions, regarding your data entry / reporting obligations, whether some or all of the identified anomalies may be written-off.  The AJC has filed a policy grievance with Treasury Board in support of its members and has asked the Treasury Board to suspend the current reconciliation process.
6. What happens if leave discrepancies are identified and I am unable to account for them? Am I at risk of being disciplined?
If you and your manager are unable to retrace the history, in all likelihood, either iCase or Peoplesoft will need to be relied upon.  In the meantime, pending resolution of the policy grievance, we encourage you to discuss with your manager to ensure that you have access to all potential sources of information such as payroll or personnel files provided to you before conceding a shortfall.

Also, if according to your manager there is a discrepancy between your leave in iCase and entries in PeopleSoft, be sure to verify the information yourself in both PeopleSoft and iCase as in one case that has been reported to us, the leaves had indeed been approved in PeopleSoft. Members should not assume that the reports presented to them are accurate.

It is highly unlikely that this reconciliation process will trigger discipline.  However there may be very exceptional cases where the department may decide to initiate an investigation in suspected cases of wrongdoing.  Please note that the onus of demonstrating misconduct would rest with the department in cases of discipline.  For more information regarding the disciplinary process, you may consult the Treasury Board Guidelines for Discipline.

7. Is the time I spend reconciling my leave records considered to be time worked?
Absolutely.  Please be sure to docket this time as required.
8. Does a department require my consent to deduct any claimed overpayment from my pay or can the department unilaterally deduct amounts owing?
Unlike the provinces where the law requires consent from individual employees to recover debts, there are no such consent requirements at the federal level for overpayments made under the FAA.   The employer has some discretion under its management rights to reconcile leave discrepancies unilaterally however any such reconciliation to a leave bank or potential claim for repayment must be exercised reasonably and in accordance with the collective agreement.  
9. Shouldnīt the leave reconciliation discussions with my manager take into account any hours worked in excess of 37.5 hours per week for which no overtime was claimed?
To the extent that you are able to show that you have worked in excess of the normal hours of work, i.e. 37.5 hours, but where no overtime was claimed, we encourage you to have these discussions with your manager in the hopes of arriving at a mutually acceptable resolution, subject to the outcome of the AJCīs policy grievance, of course.
10. Can I grieve a request for reimbursement of an overpayment where I disagree with the amounts allegedly owing?
 The AJC has filed a policy grievance on behalf of all of its impacted members.  The remedies being sought include but are not limited to a declaration that the departmentsī discretion has been exercised unreasonably and a request that any prior adverse collection/reconciliation be reversed.  

The AJC invites all members who are adversely impacted by this exercise to complete and submit an Incident Report to admin@ajc-ajj.ca in the event you are willing and prepared to participate as a potential witness should the need arise.  You will receive an acknowledgement of receipt only and may be contacted for further details if required.  

11 - Do I still meet with my manager to reconcile?
Yes if your manager is requesting it.  

Different time frames and deadlines have been provided to our members, depending on where they work. Our advice is to go through the exercise to the best of your abilities in accordance with the “work now, grieve later” principle, pending any employer decision to put the process on hold.
We also suggest that you document any concerns you may have by sending an email to your manager and inform your manager by email if the short time frames are seriously hampering your ability to respond in a fully, thought-out and complete manner.

As a grievance has already been filed to protect your rights, you need not undergo the exercise under reserve as the AJC's policy grievance covers all members covered by this exercise.  That said, it is up to you whether you wish to note that your comments or acknowledgements are subject to your remedial rights under the policy grievance.

* 12 - When does the AJC anticipate a resolution to the grievance?
Hearings before the Public Service Labour Relations and Employment Board (PSLREB) were held in early October 2014 on the leave reconciliation policy grievances.  Two days of hearings took place on October 9 and 10 and dealt with both the Leave Reconciliation and the Reconciliation Work While on Leave Policy Grievances.  More hearing days took place on June 15 to the 19th 2015

***Update: DOJ and PPSC Leave Reconciliation: Still awaiting a decision!

The AJC is currently awaiting a decision on two policy grievances on leave reconciliation currently before the Public Service Labour Relations Board (PSLREB).  

The AJC will advise the membership once the PSLREB issues its formal decision.

For more information on the nature of these policy grievances, please refer to our earlier communiques of March 10th 2015, June 10th 2014 and July 22nd 2013.

** 13 - I am a former LP (LA) and am now just receiving letters from DOJ or PPSC asking me to participate in a leave reconciliation process that dates back several years. Am I covered by the current policy grievance?
Yes, however in order to ensure that the AJC has a record of your situation, you are encouraged to complete an incident form.  In the event the AJC is successful with the policy grievance, the AJC will have a means of identifying your circumstances to the department for the purposes of ensuring compliance with any remedial order that may arise.  For more information on the policy grievance, please consult this communique.
** 14 - As a former LP, does the AJC have any additional advice not otherwise covered in this FAQ?
In addition to the advice already contained in this FAQ, we recommend that you not concede to owing any debt particularly if you no longer have access to any records that would enable you to reconstruct your attendance.   As these departments are in all likelihood no longer your employing department, it is unclear how such departments would be in a position to reconcile your entitlements recorded under Peoplesoft.  
If you are still with the federal public service and see your current leave entitlements impacted, you may need to contact your current bargaining agent should changes be unilaterally made by your current employing department.
If you are no longer with the federal public service, please note that the employer may decide to unilaterally reduce any amounts it considers owing by deducting any alleged debts to the Crown from any future pension benefit payout.  In all such cases, you are encouraged to contact the AJC to ensure that it is fully aware of your circumstances and in order to ensure that your rights are duly protected in the event of a positive outcome to the AJC's policy grievance.    
***Q15: What is the impact of the DOJ's and PPSCīs new annual attestation requirements?
The Department of Justice and the Public Prosecution Service of Canada have implemented an annual attestation process requiring AJC members to attest to existing leave banks.  

It is the AJC's position as recently outlined in letters issued to the Deputy Minister at the DOJ and the Director of PPSC that attesting to current leave banks as required by management, will not have an adverse impact on our members if the Public Service Labour Relations Board (PSLREB) rules in the AJC's favour and orders retroactive adjustments to our members' banks as they existed prior to the leave reconciliation exercise.

For more background information on the leave reconciliation grievance currently before the PSLREB, please click here.  Please note we are still awaiting the decision and will be advising AJC members once the PSLREB has issued its formal decision.

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