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Wawrykow et al. v. CRA

Pursuant to article 45.08 of their former collective agreement, PIPSC AFS members were entitled to receive a lump-sum performance bonus subject to the eligibility conditions established at the discretion of their employer, the Canada Revenue Agency (CRA). These conditions were not incorporated into the terms of the collective agreement.

Based on their respective 2008-2009 performance reviews, some PIPSC members felt they had received an inferior performance bonus then expected, while other received none at all.

PIPSC members filed grievances arguing that the CRA applied the performance management process in an arbitrarily, capriciously and in bad faith. The grievors relied on the fact that the CRA applied a new definition of “exemplary leadership” retroactively to the performance review year that had already ended.

While acknowledging that adjudicators do not have jurisdiction to review a performance appraisal unless the substantive evaluation process is set out in the collective agreement, adjudicator McNamara determined that he had jurisdiction to make a determination as to whether the employer had exercised its rights in relation to the grievor’s annual performance in a discriminatory, bad faith or arbitrary manner.

At paragraph 41 of his decision, Adjudicator McNamara found the employer to have acted unreasonably and an in an arbitrary manner when it reviewed the definition of “exemplary leadership” and applied it retroactively to the performance review year that had just ended. He wrote at paragraph 44:

 

“I am not suggesting that the employer was not within its rights to modify the parameters under which employee’s performance should have been assessed and the kind of evidence required to support the performance ratings. Where it was at fault, in my view, was in applying those changes retroactively to a performance review year that had already ended. This made it impossible for the employees to know in advance their employer’s expectation…”

 

The grievances were upheld.


Publish Date: 18-MAY-2017 02:46 PM