Phoenix pay system damages agreement (2019)

General principles

1. The objective of this agreement is to make whole the members of the Core Public Administration (CPA) bargaining units (“employees”) represented by the CPA Bargaining agents (“Bargaining Agents”) who have been, and continue to be, harmed by the Phoenix Pay System.
2. For greater certainty, this agreement does not apply to members of the class action as certified by the Québec Superior Court in Bouchard c. Procureur Général du Canada (200‑06‑000214‑174), or to others that may be added by the court.
3. The parties agree to the following plan for the compensation of damages to employees who have suffered financial and non‑financial damages due to issues with their pay caused by the Phoenix Pay System. The parties have designed this process to minimize the impact on the Phoenix Pay System and to provide compensation to all affected employees expeditiously. Employees who work with the Phoenix Pay System are only covered by this agreement insofar as they have had issues with their pay caused by the Phoenix Pay system.
4. The agreement covers damages for the following four (4) fiscal years: 2016/2017, 2017/2018, 2018/2019 and 2019/2020.
5. All current employees covered by this agreement are eligible for and will be credited with leave in accordance with the amounts, conditions and timing set out in this agreement, in recognition of the fact that they have been impacted, directly and/or indirectly, by the implementation of Phoenix, and may have experienced financial and/or non-financial damages. This leave represents general compensation for financial and/or non-financial damages, including but not limited to interest, general stress, aggravation and lost time.
6. This agreement also sets out the compensation framework for former employees. Former employees and estates of deceased employees will be eligible to file claims in respect of matters addressed in this agreement. Following the submission of a claim and validation, former employees and the estates of deceased employees, will be compensated the equivalent payment of leave as current employees.
7. Current and former employees who have suffered exceptional and severe cases of financial and non‑financial damages as a result of Phoenix pay issues will be entitled to those damages set out under the heading Damages for Severe Impacts and Other Demonstrable Cases.
8. Where a current or former employee has received compensation for damages in another forum, for example, as a result of a grievance or complaint stemming from a claim for workplace injury benefits, the amount of damages for severe impacts and other demonstrable cases that they receive under this agreement may be reduced by the amount of the compensation (in money or in kind) that they have received in that other forum.
9. The entitlement in clause 11 or 16 is to be paid only once per employee (or former employee) per fiscal year (whether as a current employee or former employee) of the CPA, or of a separate agency.
10.  The failure to apply for an emergency advance or priority payment will not be a barrier to current or former employees making a claim for damages for severe impacts and other demonstrable cases. Mitigation measures taken by the Employer shall be considered in reaching a decision on a claim for damages for severe impacts and other demonstrable cases. For example, the receipt of an emergency salary advance or priority pay shall be considered in reaching a decision on a claim for damages for severe impacts and other demonstrable cases.

General compensation for current employees

11. The Employer will credit the annual leave banks of all current employees two (2) days of leave for 2016/2017 and one (1) day of leave for each of the subsequent years of 2017/2018 and 2018/2019 fiscal years. It will also credit the annual leave banks of all current employees one (1) day of leave for the fiscal year 2019/2020.
12. In order to be eligible for the leave provided for in clause 11, an employee need only be on strength for one day in the fiscal year(s). For greater clarity, the term “on strength” refers to all employees employed in the CPA, whether or not they are on leave, assignment or otherwise not active.
13. The periods of leave for 2016/2017, 2017/2018 and 2018/2019, will be credited no later than one hundred and fifty (150) days from the signing of this agreement for current employees. The leave for 2019/2020 will be credited within one hundred and fifty (150) days after the end of that fiscal year.
14. For greater certainty, nothing in this agreement diminishes employees’ entitlements to compensation pursuant to their collective agreement. The entitlement in clause 11 is also without prejudice to the right of the employees or Bargaining Agents on behalf of their members to seek compensation for interest, aggravation, and lost time in subsequent fiscal years to those cited above, for events attributable to those subsequent years.
15. The applicable annual leave collective agreement provisions will apply to all leave credited in accordance with this agreement.

General compensation for former employees

16. Former employees will be eligible, following the submission of a claim and validation, to be compensated the salary equivalent of leave on the basis of clause 11 and 12 at their salary rate on the day the claim is processed.
17. In order to be eligible for the payment provided for in clause 16, a former employee need only to have been on strength for one day in the period covered by this agreement. For greater clarity, the term “on strength” refers to all employees employed in the CPA, whether or not they are on leave, assignment or otherwise not active.
18. Any monies paid pursuant to clause 16 are subject to any applicable statutory deductions and are non‑pensionable.

Claims process for expenses and financial losses

19. The entitlement under the existing claims process for expenses and financial losses due to Phoenix will remain in place until there are no more claims to process. It will continue to provide redress and reimbursement for all damages and expenses which are currently compensated through the claims process.

Damages for severe impacts and other demonstrable cases

20. Unless otherwise specified, a threshold of $1,500 will apply with respect to claims for severe impacts and other demonstrable cases as outlined in clause 21.
21. In addition to compensation provided in clauses 11 and 16, and in order to address situations involving an employee’s own pay problems, employees will be able to file claims and the Employer will engage in a detailed review of claims to determine if the claims disclose the following:
    1. Non‑speculative investment losses related to the Phoenix Pay System, where evidenced by a pre‑existing public investment instrument which was cashed in whole or in part at the time an employee was impacted by unpaid earnings due to the Phoenix Pay System. Compensation is to be commensurate with investment income lost during the unpaid period up to the sums equivalent to missed net pay;
    2. Non‑speculative lost RRSP deferred taxation advantages, subject to specific conditions. Compensation is to be commensurate with tax advantages lost during the unpaid period calculated on sums up to the equivalent of the missed net pay (including delayed net severance or pension payments where such delay is caused by the Phoenix Pay System);
    3. With respect to delayed severance or pension payments where such delay is caused by the Phoenix Pay System, any interest on outstanding amounts on loans, mortgages, credit cards or other debt instruments where the outstanding amount is up to the net amount of the delayed severance or pension payment less the portion of the delayed net severance or pension payments applied to calculate the amount payable pursuant to clause 21(b);
    4. For current employees documented use of sick leave, and other paid or unpaid leave caused by illness, stemming from issues with the employee’s pay attributed, to the Phoenix Pay System shall be re‑credited and/or compensated. The $1,500 threshold does not apply to this sub‑clause;
    5. For former employees, documented use of other paid (except for sick leave) or unpaid leave caused by illness, stemming from issues with the employees’ pay attributed to the Phoenix Pay System, shall be compensated. The $1,500 threshold does not apply to this sub‑clause;
    6. Interest attributable to the Phoenix Pay System, at the rate of the Interest and Administrative Charges Regulations on:
       1. all delayed severance payments, beyond what would be a normal established processing time (within thirty (30) days of receipt of severance pay annex);
       2. all delayed pension entitlements, beyond what would be a normal established processing time (goal is to process the pension benefit division payment within one hundred and twenty (120) days of the date the application is approved or within forty‑five (45) days of receipt of all required documents, whichever is later);
       3. missing pay.
    7. The Employer agrees to apply retroactively to February 2016, section 17 of the Directive on Terms and Conditions of Employment (emergency replacement pay services or priority pay for individuals beginning disability insurance, maternity or parental leave). The $1,500 threshold does not apply to this sub‑clause;
    8. Claims alleging a discriminatory practice as defined under the Canadian Human Rights Act, including but not limited to issues related to maternity, parental or disability leave, which may warrant additional damages being awarded;
    9. Claims in respect of the consequences of lost occupational capacity, lost security clearances, bankruptcy or significant credit rating impact which are directly attributable in whole or in part to their Phoenix Pay problems, in order to compensate the consequences thereof;
    10. Claims in respect of employees who resigned from the public service as a consequence of a loss of income leading to financial hardship caused by the Phoenix Pay System;
    11. Claims in respect of mental anguish or trauma, which interfered with the ability of the employee, to a profound degree, to lead a normal life; caused in whole or in part by the Phoenix Pay System; and
    12. Other damages which are in the nature of the above, for situations which disclose comparable personal hardship or impact caused in whole or in part by the Phoenix Pay System.
22. The Employer will rely on all relevant information in reviewing damages for severe impacts and other demonstrable cases including information held by other departments or agencies.
23. An employee whose claim has been approved will need to sign a release form. It will only be effective for the portion of the claim that is approved.
24. Employees may only grieve the denied portions of their claim for damages for severe impacts and other demonstrable cases in accordance with the grievance process established under this agreement.

Grievance process

25. Grievances for damages resulting from the Phoenix Pay problems that were filed prior to the date of this agreement being into force and which have not been resolved will be processed pursuant to this agreement.
26. Grievances for damages resulting from the Phoenix Pay problems filed after the date of this agreement coming into force shall be processed pursuant to this agreement.
27. The Employer will not seek to enforce any objection of timeliness with respect to the grievance process until two (2) years from the date of the signature of this memorandum of agreement.
28. A decision with respect to a claim under this agreement shall constitute a final level grievance decision.
29. Grievances arising out of clause 21(a) to (f) shall be argued by way of written submissions, unless exceptional circumstances, as determined by the adjudicator, or on consent of the parties, require oral evidence.
30. Grievances arising out of clause 21(g) to (k) may be argued by way of written submissions, where the parties agree or where the adjudicator determines that, it is in accordance with the principles of natural justice to dispense with viva voce evidence and oral argument.

Bargaining Agents’ obligations

31. Bargaining Agents must review and evaluate, prior to an employee filing a claim, all existing grievances submitted by their members in a manner consistent with their duty of fair representation. Bargaining Agents will make reasonable efforts to complete this review within one hundred and fifty (150) days of implementation of this agreement.
32. Bargaining Agents will withdraw the grievances within one hundred and fifty (150) days of implementation of this agreement. Bargaining Agents retain carriage of their grievances subject only to the statutory duty of fair representation.
33. Upon signing of this agreement, the Bargaining Agents agree not to pursue any portion of policy grievances and unfair labour practice complaints relating to damages covered by this agreement.

Oversight committee

34. The parties agree to create an oversight committee.
35. The committee will be established within ninety (90) days of the signature of this agreement. The committee will be comprised of an equal number of Employer and Bargaining Agent representatives and not exceeding eight (8) members.
36. The committee’s objective is to resolve issues related to the implementation of this memorandum of agreement. The committee will not review substantive matters related to individual claims and grievances.
37.  The committee will work towards establishing an accelerated adjudication process for grievances under this agreement.

Definitions

38. Current employees: are individuals employed under the Public Service Employment Act that are indeterminate or terms of more than three (3) months as of the date of signing of this agreement.
39. Former employees: are individuals who were employed under the Public Service Employment Act either on an indeterminate basis or for a term of more than three (3) months during the period covered by this agreement and who have resigned, been terminated, retired or become deceased (estates of deceased employees) before the date of signing of this agreement.
40. A day of leave shall be equal to eight (8) hours per day, or seven and one‑half (7.5) hours per day where the standard workweek is thirty‑seven decimal five (37.5) hours per week.

Without prejudice

This agreement is made without prejudice to the rights of Bargaining Agents in respect of:

41. damages suffered by employees working with the Phoenix Pay System, for example by compensation advisors, which are not covered by this agreement;
42. damages or other corrective measures in respect of the late implementation of collective agreements;
43. damages or other corrective measures in respect of the consequences of the Phoenix Pay System with regard to the processing of dues;
44. the application for judicial review filed before the Federal Court of Canada on December 19, 2016.

The parties recognize that final agreement is subject to approval by the Employer and each Bargaining Agent’s governing bodies.

The Employer agrees to incorporate into this agreement any damages measures negotiated with any other Bargaining Agents representing CPA employees that are more generous than those in this agreement.

Dates may be extended by mutual agreement of the parties.