Maternity/Parental Leave Performance Pay Issue :: Association of Justice Counsel News
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November 14th, 2012
November 14th, 2012

Maternity/Parental Leave Performance Pay Issue

In January 2012, the AJC referred a policy grievance to arbitration highlighting differential treatment between LAs working for Veterans' Affairs Canada ("VAC") and agencies, and LAs working for the Department of Justice ("DOJ").  More specifically, the AJC sought to ensure that VAC LAs who are on maternity/parental leave receive the same performance pay treatment afforded to DOJ LAs who were on maternity/parental leave, arguing that VAC's practice was discriminatory in nature and that DOJ's policy should be adopted, i.e. deeming LAs on maternity/parental leave as meeting the performance requirements in order to be eligible to receive performance pay (without prorating).

Prior to the hearing taking place and in response to the AJC's expressed concerns regarding differential treatment between members of the same bargaining unit, Treasury Board directed DOJ to discontinue its practice and to adopt VAC's approach which formed the subject of the grievance arbitration.

Unfortunately and despite Treasury Board's change in approach before the hearing, the Public Service Labour Relations Board ("PSLRB") concluded that the AJC did not make a prima facie case of discrimination.  The PSLRB  found that the employer was entitled to pro-rate for employees who are on leave without pay during the fiscal year as per Appendix "B"  of the performance pay plan, Part 2 section 8.2 of the current collective agreement.  This clause reads as follows:

Employees who have been on leave without pay for a part of the fiscal year may be eligible for a performance increase if they have been on strength for long enough to permit a meaningful evaluation of performance. Any performance pay should be prorated for the time they have been back on payroll.

The adjudicator rejected the AJC's argument that there should be automatic progression, finding that the performance pay system under the now expired agreement is not a pay increment that occurs on a set date by a pre-set amount.

Pending collective bargaining, AJC filed an application for Judicial Review in order to keep the AJC's options open with the understanding that a further evaluation of the judicial review application will be required.  After the tentative agreement was ratified, the AJC Executive re-examined the matter and concluded that despite its disagreement with the arbitration outcome, it is unlikely that the AJC will meet the review threshold in order to be successful.  Accordingly, the AJC withdrew its application.

That said, members should note that the recently ratified tentative agreement which provides for automatic lockstep increases renders much of the issues covered in the application for judicial review moot on a go-forward basis.

Under this tentative agreement, once the lock step system comes into effect on May 10, 2013, it is the AJC´s view that an LA on maternity or parental leave will move a full step on the lock step range on their normal increment date, regardless of the number of months worked in the year, unless they receive an "Unsatisfactory" assessment.
For employees on maternity or parental leave at the top of the lock step range, the AJC is of the view that the adjudicator´s decision would continue to apply to "performance awards", i.e., lump sum payments for people at the maximum of the range. Such employees who are assessed as "Unable to Assess" (at work for less than approximately 4 months) would not be eligible for a performance award and performance awards would be prorated to the length of time such employees were at work during the fiscal year.

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