Bilingualism Bonus Directive – Assignments

Background

The grievor works at Department X, who was acting in a higher position, with a CBC language profile, from November 15, 2021 to March 14, 2022. Upon commencement of the acting, the grievor’s Second Language Evaluation (SLE) results were a valid B in written expression, an expired B in reading comprehension and an expired B in oral assessment. Therefore, as the grievor did not have valid language results while in the acting position, the Department did not issue the bilingualism bonus to the grievor during their acting period.

The grievance was filed on September 6, 2022. Between the end of the acting period and the grievance submission, the grievor was engaged in informal discussions with management; the Department issued their final position in late August 2022.

Grievance

The employee is grieving that they were denied the bilingualism bonus that was due to them while they were acting in a higher position for a period of 4 months less a day. The employee has indicated that this action on the part of Department X contravenes subsection 1.4.1 of the Bilingualism Bonus Directive.

The employee is grieving that the Employer has violated any applicable legislation, policies, and collective agreement articles.

Bargaining Agent Presentation

The Bargaining Agent representative began their presentation by stating facts of the grievance. The representative noted that although the Department has indicated continuing the bonus during the grievor’s acting would have been a violation of section 30 of the Public Service Employment Act (PSEA) due to the grievor’s language levels, they are arguing that this violation did not occur. It was noted that NJC directives focus on intent and the words within the directives are specifically chosen with intent in mind. The Bargaining Agent representative argued that the wording of the Directive in section 1.4 clearly states the bonus would only cease when an employee is acting in an EX-category position. Furthermore, the representative noted that it is important to honour the plain language of the Directive. Nonetheless, if the focus is on the intent of the Directive, they believe the intent of the Directive is to ensure the bilingualism bonus would continue during an acting appointment. Lastly, the representative indicated that the grievor worked in both official languages, and that the work performed benefited the Department. For these reasons, the representative believes the bilingualism bonus should have been paid during the grievor’s acting.

Following questions from the Committee, the Bargaining Agent representative confirmed that it was the grievor themself that discovered they were no longer receiving the bonus and that it was not made clear by the Department. Additionally, it was clarified that the grievor once again received the bonus when they returned to their substantive position; it was only during the four (4) month acting period that the bonus was not received. Lastly, the representative indicated that they believe the Department is adding to and reading into the Directive. The representative stated that the Department simply cannot decide new ways to apply the Directive but rather, there is a process that must be followed to update the Directive.

Departmental Presentation

The Departmental representative began their presentation by going over the facts of the grievance and provided background information. The representative argued that the Directive is outdated and needs to be modernized. They made references to article 6 and 34.1 of the collective agreement and noted that Acts of Parliament, specifically the PSEA, supersede NJC directives and collective agreements.

The Departmental representative indicated that while an acting appointment of less than four (4) months is excluded from the merit requirement, the employee must meet the official language proficiency qualification in order to be entitled to the bilingualism bonus during the acting period. Furthermore, it was mentioned that the TBS Official Languages Centre of Excellence had indicated that the Department acted correctly in deciding to cease the bilingual bonus during the grievor’s acting. For these reasons, the representative indicated the Department does not believe that their decision to cease the bilingualism bonus during the grievor’s acting breached the Bilingualism Bonus Directive.

Following questions from the Committee, the representative indicated they are not certain if second language evaluation (SLE) testing was ongoing during the COVID-19 pandemic. When asked to clarify how the Directive and PSEA intersect, the representative stated they believe the issue comes back to how the grievor did not meet the language requirements during the acting period and therefore did not meet the merit criteria for the acting position. Lastly, the Departmental representative clarified that they believe the intent of the Directive is to provide employees with the bilingualism bonus, but only when they meet the language requirements.

Executive Committee Decision

The Executive Committee reviewed the report of the Official Languages Committee, which concluded that the grievor had not been treated within the intent of the Directive. The Executive Committee accepted the report, and as such the grievance was upheld.