Bilingualism Bonus

The employee grieved the employer's failure to pay him the bilingualism bonus in view of the fact that there is a requirement to use certain unilingual English technical references to do assigned work. The grievor believed that the position's linguistic profile did not correspond to the reality of the work, that the employer has been aware of the situation for some time, and the bilingualism bonus should be paid to the employee for services rendered retroactively to the beginning of Project C and M.

The grievor contests the employer's decision not to pay him the bilingualism bonus from the beginning of the special project that started on June 1, 2000. The grievor maintains that the position's linguistic profile is inappropriate because English documents must be used to perform the work. The employer reviewed the language requirements of all determinate and indeterminate positions for this unit and informed the grievor that if the grievor position's linguistic profile changed, the grievor would be entitled to receive the bilingualism bonus effective June 17, 2003, the day of the grievor's Second Language Evaluation Test (SLE). The linguistic profile of the grievor's position was modified and is now bilingual A - -/A - -. Thus, the employer paid the grievor the bilingualism bonus effective June 17, 2003.

The Bargaining Agent representative explained to the Committee that the grievor had to use unilingual English documents to do his work. According to the work description, the grievor had to meet the following requirements:

• Skills: Read industrial drawings, technical specifications and work instructions related to the team's products and services in order to plan and perform the production tasks.
• Communication: Read and apply the work instructions, technical specifications and procedures presented in written and schematic form, which are essential elements in the work.
• Effort: Consult and interpret testing procedures, work instructions, production and quality reports, industrial drawings, technical specifications or combinations of these elements – which are varied and not always complete or up to date - and which are essential to the work, and to do so on site during the production process.

The local union had repeatedly asked the Parity Committee to review the linguistic profiles of the positions to ensure that they reflected the reality of the situation. Several extracts of minutes demonstrating these requests were appended to the Bargaining Agent representative's presentation.

The Committee's attention was drawn to the fact that the letter of offer for an indeterminate appointment indicates that the linguistic requirements are English and French. However, for a determinate appointment, the linguistic requirement is either French or English.

The Bargaining Agent representative pointed out that under section 1.2.2 of the Bilingualism Bonus Directive it is incumbent upon departments or agencies first to review the linguistic profile of the position in terms of the real requirements of the position and the bilingual capacity of the work unit. The department did not adequately carry out this responsibility, despite knowing that it was required to do so, and thus, the department acted in bad faith in this matter. The department designates positions as bilingual or unilingual based on the type of appointment (indeterminate or determinate) rather than on the real requirements and bilingual capacity of the work unit.

It is evident that the real requirements call for the linguistic profile of the position held by the grievor to be bilingual. Moreover, after the presentation of this grievance, the department finally performed the necessary review of the linguistic requirements of this unit's positions. Also, the grievor underwent a SLE test and met the position's linguistic requirements.

The Bargaining Agent representative also drew the Committee's attention to a grievance in a similar case (26.4.6 – Retroactivity, bilingualism bonus), which was heard on April 8, 1983, and where the Executive Committee (Administration Committee at the time) allowed the grievance and asked that the bilingualism bonus be paid retroactively to the grievor.

The department's actions are a flagrant abuse of the Bilingualism Bonus Directive and unduly penalize employees appointed for a determinate period.

For these reasons, the Bargaining Agent representative asked the Committee to allow this grievance given that the department failed to comply with the intent of the Bilingualism Bonus Directive by ignoring its responsibilities.

The Departmental representative reminded the Committee that section 1.1.1 of the Bilingualism Bonus Directive must be used in order to determine whether the grievor is eligible for the bilingualism bonus.

The Departmental representative also reminded the Committee that, according to the Directive on the Linguistic Identification of Positions or Functions, the responsibility for determining a position's linguistic designation belongs to management.

• bilingual, when the functions must be carried out in English and in French;
• English essential, when the functions must be carried out in English;
• French essential, when the functions must be carried out in French;
• Either/or, when the functions may be carried out in English or in French, in accordance with the employee's choice.

The Departmental representative believes that it is worth noting that the Directive on the Linguistic Identification of Positions or Functions is a Directive of the Treasury Board Secretariat and, therefore, does not fall under the jurisdiction of the National Joint Council. Thus, the National Joint Council does not have the authority to rule on the linguistic identification of positions or functions.

Following the union's request at the January 28, 2003 meeting of the Parity Committee, management agreed to initiate a new review of the linguistic requirements of all positions in the organization. As a result of this analysis, the linguistic requirements of certain positions were modified, which had an impact on the grievor's position, which was designated bilingual A - -/A - -.

The Departmental representative admitted that the issue of linguistic identification of determinate positions had been raised in May 2000, at a meeting of the Parity Committee. At that time, the union representatives had been told that a review had been done in 1997 and that this review had shown that the positions in question did not have to be designated bilingual. The explanation provided by management was that these employees had to speak to their supervisors to get the instructions needed to perform their tasks. The response must have been deemed satisfactory by the local union representatives because there was no follow-up.

The grievor met the second eligibility condition of meeting the language requirements. The grievor had been evaluated for language skills on June 17, 2003, and obtained a level "B".

The Departmental representative explained that although the Bilingualism Bonus Directive enabled management to modify the linguistic requirements of the grievor's position retroactively, which it did, it was impossible to determine retroactively whether the grievor met the linguistic requirements of the position before June 17, 2003. There are no second language evaluation results for the period prior to June 17, 2003. It was only on June 17, 2003, that the grievor was evaluated and that management received proof that the linguistic requirements of the position were met.

Management had decided to identify the position as bilingual on the very same day that the grievor was evaluated. This decision enabled the grievor to receive the bilingualism bonus at the earliest possible opportunity. Even if management had wanted to give the grievor the bilingualism bonus on the date requested, which is to say June 1, 2000, it could not do so since the complainant was not eligible for it under the Bilingualism Bonus Directive.

The Departmental representative added that the grievor started to receive the bilingualism bonus in accordance with the Pay Administration Guide.

The Departmental representative agreed that the department complied with the Bilingualism Bonus Directive since it gave the employee the bonus on the day that eligibility was met. Consequently, this grievance should be denied.

The Executive Committee considered and agreed with the report of the Official Languages Committee which concluded that the grievor had not been treated within the intent of the Bilingualism Bonus Directive. The Executive Committee agreed to uphold the grievance and that retroactive payment of the bilingualism bonus be made effective June 1, 2000.