FPSLREB Decisions

[1]    On May 22, 2004, the Professional Institute of the Public Service of Canada (PIPSC) sent a letter to the Public Service Staff Relations Board (PSSRB) asking the PSSRB to ". . . grant relief under the provisions of Section 63(b) of the PSSRB Regulations and Rules of Procedure to allow for the transmittal of a grievance concerning an alleged contravention of the Collective Agreement between PIPSC and the CFIA."

[2]    Following exchanges of correspondence between the parties involved in the matter, the PSSRB scheduled a hearing to occur in December 2004.

[3]    In November 2004, the PIPSC wrote to the PSSRB suggesting that the matter proceed by way of written submissions, and the employer agreed. Accordingly, on December 21, 2004, the PIPSC forwarded its written submissions to the PSSRB. The employer's written submissions were sent on January 26, 2005, and the rebuttal submissions of the PIPSC were sent to the PSSRB on February 2, 2005. The complete text of each of these written submissions is on file at the PSSRB.

[4]    This decision pertains to the request of the PIPSC for an extension of time to file a grievance from Dr. Beatrice Rinke, an employee who resigned from the Canadian Food Inspection Agency (CFIA).

Written Submissions of the Bargaining Agent

[5]    The PIPSC filed the following submissions:

. . .

4. Prior to applying for Injury-on-Duty Leave, Dr. Rinke had been on leave from her employ (extended periods of sick leave with and without pay) as a result of illness caused by conditions within her workplace. She made application for Workers' Compensation benefits, which application was upheld ultimately by the Workers' Compensation Appeal Tribunal of the Workers' Compensation Board of British Columbia. She was awarded approximately 2 years of Workers' Compensation benefits.

. . .

6. Following receipt of the WCAT decision, Dr. Rinke applied, on 19 May 2003, for Injury-on-Duty Leave under the provisions of her Collective Agreement, to cover the period during which she was injured and for which the WCB had approved her claim. The employer denied the application for Injury-on-Duty Leave on 14 July 2003 (the letter denying the application was received by Dr. Rinke on 24 July 2003).

7. Dr. Rinke filed a grievance concerning this denial, which was sent by the Bargaining Agent by Express Post to the designated manager on 19 August 2003, within the time frames stipulated by the Collective Agreement (25 working days, exclusive of Saturdays, Sundays, and designated paid holidays).

8. The letter from the Bargaining Agent which accompanied the grievance requested that management waive the first two levels of the grievance procedure in order that the parties could proceed to a Final Level hearing. Copies of the letter and grievance document were sent by fax to Human Resources Officers in Calgary and Ottawa, along with the explanation that the grievor and the Institute wanted to expedite the hearing of the grievance in order that it could be included with two other grievances presented by the grievor which were already at the Adjudication stage. . . .

9. The Adjudication hearing of these other grievances was scheduled originally for the end of September 2003; however, the hearing was postponed. Ultimately, those grievances were heard in Vancouver beginning on 22 June 2004.

10. As the employer refused to agree to a waiver of the lower levels, a First Level consultation took place by teleconference on 27 August 2003. The Employer responded in writing, on 03 September 2003, denying the grievance. A faxed copy of the denial was received by the Bargaining Agent on the same date.

11. Dr. Rinke was advised of this denial, and confirmed her desire to transmit the grievance to the next level by e-mail to the Bargaining Agent Representative on 05 September 2003. . . . The intention was that the Bargaining Agent would forward the e-mail transmittal request to the Employer, along with confirmation of the Institute's support and intention to continue to provide representation.

12. On the same date, Dr. Rinke sent by fax a request that the scheduled September Adjudication hearing be postponed for medical reasons. The Bargaining Agent's Representative wrote to the PSSRB regarding a postponement . . . and discussed this turn of events with Treasury Board counsel, Mr. N. McGraw. During the course of the same conversation, the Representative advised Mr. McGraw of the existence of the Injury-on-Duty Leave grievance as well as the intention to try to have its Adjudication included with the Adjudication of the other two grievances.

13. As noted above, the hearing of the other matters was postponed. The transmittal of the Injury-on-Duty Leave grievance was lost in the shuffle of events surrounding the postponement request, as well as other business in which the Representative was engaged. At or around the beginning of February 2004, the Representative, blithely assuming that the grievance was in Ottawa awaiting a Final Level consultation, communicated with the Human Resources Officer in Ottawa requesting the consultation.

14. During the course of a subsequent conversation between the Representative and the Human Resources Officer, the HRO advised that the Employer considered the grievance to have been abandoned following the First Level consultation. Investigation by the Representative revealed that the September 5th e-mail transmittal had never been forwarded to the Employer.

. . .

18. Nothing was heard the following week, however, the Director left a telephone message for the Representative on the evening of April 27th describing his refusal to accept the transmittal. His reasons for this refusal were of a personal nature. There is a high degree of animosity between Dr. Rinke and CFIA management, based on an antagonistic relationship which has extended over the last 12 years or so.

19. The Employer's rationale for refusing the transmittal was that Dr. Rinke had cost them too much already; in 1992, she was successful at an Adjudication concerning a Relocation grievance, and she succeeded in her WCB application. Further, the CFIA now blamed Dr. Rinke for the WCAT's decision to dismiss their appeal. Finally, they felt that Dr. Rinke owed them a significant sum of money, a matter which was the subject of one of the grievances at adjudication at that time, and they had no desire to reduce that perceived indebtedness, should an Adjudicator find in favour of the Injury-on-Duty Leave grievance.

20. Dr. Rinke now resides in Guelph, Ontario, whereas the CFIA's managers responsible for decisions with respect to her employment issues with the CFIA are located in Alberta and British Columbia. Further, her Representative is also located in Western Canada, in Vancouver. Accordingly, most communications between Dr. Rinke and her Representative, between Dr. Rinke and the CFIA and between her Representative and the CFIA have taken the form of telephone conversations, and letters and documents transmitted by fax, e-mail, and/or the regular mail system.

. . .

24. Previous decisions of the Board make it clear that while the principles which govern these matters remain constant, each case is decided on its own merits; even in those instances where similar fact patterns might be seen to exist, PSSRB Adjudicators have ruled differently.

25. The basic principles were established by the Federal Court of Appeal in the case of Demercado v. Canada ([1984] F.C.J. No. 1119, Appeal No. A-774-84). In a unanimous judgement, the Justices noted that an earlier decision of the PSSRB defined the manner in which decisions should be made in the case of applications for extension of time, quoting, with approval, Deputy Chairman, Kates, who observed, in Dunham v. Treasury Board (PSSRB File: 149-2-39), that:

    What the board is obliged to do in proceedings initiated under subsection 89(1) of the Regulations [as they then were] is to balance, the injustice caused the applicant should his application be denied with the prejudice to the employer should the application be granted.

. . .

1. The above represent but a smattering of published Board decisions with respect to the issue of the extension of time. What is clear throughout these decisions is that an application for an extension will be accepted if most or all of the following are evident:

   (i)	The grievor has acted diligently to pursue their cause;
   (ii)	The length of the delay is reasonable;
   (ii)[sic]	There is a reasonable explanation for the delay;
   (iii)	The grievor will be prejudiced by a denial of the application (the greater the impact of the denial, the greater will be the effect of this element);
   (iv)	The absence of difficulty or prejudice caused the employer by allowing the application (i.e.) intact evidence, readily available witnesses.

2. While none of the cases cited is squarely on point with the instant case, a review of the facts against the criteria listed above supports the application for the extension of time.

. . .

1. Dr. Rinke will experience a significant injustice if this application for extension of time is denied. At the moment, the findings of the WCAT that hers was a workplace injury means that she became entitled to Workers' Compensation benefits for the period that she was away from work. However, these benefits are only a proportion [sic] of the employee's full salary, and are subject to a cap. If some, or all, of the period in question, when she would be on Sick Leave without Pay and in receipt of Workers' Compensation benefits, were replaced by Injury-on-Duty Leave, Dr. Rinke would realize a significant financial gain, as reimbursement while on Injury-on-Duty Leave is at full salary.

2. The Employer will have no difficulty in making its case before the Adjudicator. Not only should their decision be based on existing Policy and precedent, which can be clearly established, but all of the individuals who participated in the decision to deny Dr. Rinke's Injury-on-Duty Leave application continue to work in the Western Area and would be available as witnesses. Further, a decision to uphold the grievance would not mean a huge financial burden for the Employer; they are paying Dr. Rinke's Workers' Compensation benefits already, and while the difference between the amount of money payable to Dr. Rinke as WC benefits and full salary is significant to Dr. Rinke, it represents a relatively insignificant amount for the Employer in terms of their overall salary and operating budgets. Further, the Employer should not be hiding behind budgetary constraints in an attempt to evade their responsibilities as outlined in the collective agreement.

. . .

[6]    In support of its submissions, the PIPSC referred to the following cases:

Hitchock et al. v. Treasury Board (Fisheries and Oceans), PSSRB File Nos. 166-2-16651 to 16654 and 149-2-78 (1987);

Gagnon v. Treasury Board (Public Service Commission), PSSRB File No. 149-2-90 (1990);

Rattew v. Treasury Board (National Defence), PSSRB File No. 149-2-107 (1992);

Cotter v. Treasury Board (Indian and Northern Affairs), PSSRB File No. 149-2-152 (1995);

Boulay v. Treasury Board (Correctional Services of Canada), PSSRB File No. 149-2-160 (1996);

Guittard v. Staff of the Non-public-Funds, Canadian Forces, 2002 PSSRB 18.

Written Submissions of the Employer

[7]    The employer's submissions read as follows:

. . .

1. While the Employer does not take issue with the general facts outlined by the Bargaining Agent in its submissions, certain issues need to be clarified or disputed.

. . .

1. While I do not personally recall discussing the injury-on-duty leave grievance with Mr. Heidinger in September of 2003, I do not believe there was any discussion relating to the transmittal of the grievance, since this discussion occurred shortly after Dr. Rinke's email reproduced at Appendix II of the Applicant's submissions.

2. To the best of my personal recollections, there was no further discussion relating to this grievance until the Application for extension of time was made.

3. The first communication the employer had with the Bargaining Agent in relation to the grievance at issue in this application was in February of 2004, when Mr. Heidinger was made aware of the fact that the grievance had not been transmitted to the second level by Susan Dibble, Human Resources Officer for the CFIA.

4. On or around April 27th, 2004, the employer communicated its decision not to accept the late transmittal of the grievance to second level to the Bargaining Agent, pursuant to the time frames stipulated in the collective agreement.

. . .

1. The Employer did not reject the application for an extension of time based on personal issues, but rather on the fact that no valid reason had been given by the Bargaining Agent to explain the lengthy delay. Having received no communication by the Bargaining Agent on this issue until February 2004, the Employer felt justified in assuming that the grievance had been abandoned

   Arguments

1. The burden of proof to justify the request for an extension of time lies with the Applicant. The time limits for the transmittal of a grievance are stipulated in the collective agreement.

. . .

1. The evidence demonstrates that between October of 2003 and February of 2004, there were no communications from the Applicant or her Bargaining Agent requesting that the grievance be transmitted to the second level, or even inquiring into the status of the grievance.

. . .

1. The Bargaining Agent has underlined what it considers the Employer's irrationality in denying the request for an extension of time. While the Employer disputes the Bargaining Agent's interpretation of the facts, the issue is whether the Bargaining Agent has acted with due diligence and whether it has presented a valid explanation to justify the delay. The fact that it was "lost in the shuffle" for over five months is not a valid explanation.

. . .

[8]    In support of its submissions, the employer referred to the following cases:

Boulay v. Treasury Board (Correctional Services of Canada), PSSRB File No. 149-2-160 (1996);

Mbaegu v. Treasury Board (Solicitor General Canada - Correctional Services), 2003 PSSRB 9.

Rebuttal Submission of the Bargaining Agent

[9]    The PIPSC made the rebuttal submissions that follow:

. . .

1. As was noted at Paragraph 27 of the Bargaining Agent's original submission, applications for extension of time have been decided based on whether or not certain criteria have been met, namely;

   (i)	Did the Grievor act diligently in pursuit of their case?
   (ii)	Was the length of the delay unreasonable?
   (iii)	Was there a reasonable explanation for the delay?
   (iv)	Will the Grievor be prejudiced by the denial, and if yes, to what extent?
   (v)	Will the Employer experience difficulty or be prejudiced if the application is allowed?

. . .

1. To reiterate, a review of the criteria supports an extension of the time frames in Dr. Rinke's case:

   (i)	Did the Grievor act diligently in pursuit of their case? Yes - she requested that the grievance be transmitted within two days of being informed of the First Level denial.
   (ii)	Was the length of the delay unreasonable? Not in the circumstances; given the laxity with which both the Employer and the Bargaining Agent treated the timeframes for filing and replies, certainly the delay was not unreasonable.
   (iii)	Was there a reasonable explanation for the delay? Absolutely, as is evident by the discussion of the facts beginning at page 1 of the original application for an extension.
   (iv)	Will the Grievor be prejudiced by the denial, and if yes, to what extent? Yes, as she stands to gain financially in the event that the grievance moves forward and her case can be made.
   (v)	Will the Employer experience difficulty or be prejudiced if the application is allowed? Only if the grievance is ultimately allowed (presumably at Adjudication). However, the Employer will not be prejudiced by being forced to accept the grievance transmittal.

. . .

Reasons for Decision

[10]   As requested by the bargaining agent, and agreed to by the employer, this decision is made on the basis of the written submissions of the parties.

[11]   When examining a request for an extension of time, the bargaining agent submits that the following points must be considered:

(i)	The grievor has acted diligently to pursue their cause;
(ii)	The length of the delay is reasonable;
(iii)	There is a reasonable explanation for the delay;
(iv)	The grievor will be prejudiced by a denial of the application (the greater the impact of the denial, the greater will be the effect of this element);
(v)	The absence of difficulty or prejudice caused the employer by allowing the application (i.e.) intact evidence, readily available witnesses

[12]   The employer did not take issue with that list, and I believe that it is a good place to begin examining the question of whether or not it is appropriate to grant the extension. Also, the employer did not take issue with the facts alleged in the bargaining agent's submissions.

[13]   Did the grievor act diligently? The bargaining agent stated that, within two days of receiving a denial to her grievance at the first level, Dr. Rinke communicated with her representative, requesting that the grievance be raised at the next level. Normally, employees present their grievance transmittal form to their supervisor, thus moving the grievance along if the employee so desires. In this instance, as I understand it, Dr. Rinke was not in the workplace, as she was seeking injury-on-duty leave. Instead, she communicated with her representative, which, given these circumstances, is not unreasonable.

[14]   Dr. Rinke made a clear expression of intent to move her grievance through the system in a timely way. She requested that her representative to move her grievance along, in what I believe to be a diligent fashion.

[15]   Was the length of the delay reasonable? The grievance itself was sent to the designated manager on August 19, 2003, and the first-level reply, denying the grievance, was issued on September 3, 2003. In February 2004, the grievor's representative became aware of the fact that the grievance transmittal had not been completed. The representative contacted the employer in February to explain the situation. The delay, in this case, was some five months.

[16]   Depending upon a number of facts, five months may be reasonable or unreasonable. There is no magic threshold where one can say that anything that is transmitted before the threshold is reasonable, but that something that is transmitted after is not. It depends on the facts of each case. Accordingly, I will discuss the other points in the submissions of the bargaining agent before commenting on this aspect.

[17]   Was there a reasonable explanation for the delay? In this case, the transmittal delay was caused when the representative did not forward the transmittal onward. There is no way to sugar-coat this! The representative simply got sidetracked with other issues and neglected to transmit the grievance form. As was stated in Boulay (supra):

. . .

. . . It seems to me that errors committed by lawyers and other employee representatives cannot be the sole ground for extending time limits without running the risk of opening the door to a series of applications citing a variety of oversights as justification for seeking the extension of time limit. . . .

. . .

[18]   However, what is also present here is the fact that there was no delay on Dr. Rinke's part. She transmitted her intent on time. Her representative did not complete his end of the bargain on time, and workload issues are not a strong reason for such action.

[19]   Would the grievor be prejudiced by the denial of the application? The grievance in question, if successful, would result in "a significant financial gain" for Dr. Rinke, according to the representative's submissions. As this was not challenged by the employer, I have no difficulty in concluding that Dr. Rinke would, indeed, be prejudiced by denying the request for an extension of time.

[20]   What prejudice would accrue to the employer by allowing the extension? The employer has not cited any prejudice to which it would be subject if the request were allowed, such as loss of documents given the time delay, loss of witnesses, memory failure or the like. Therefore, I do not see any prejudice to the employer in granting the request for an extension, other than the obvious one of having to pay Dr. Rinke money, if she were successful in her grievance. However, as her success would be due to the fact that she was entitled to the money pursuant to the wording in the collective agreement, I do not believe this to be a prejudice. Rather, it would be an entitlement (however, I make no judgement on the entitlement per se).

[21]   Therefore, in looking over the list and assessing each of its elements, it is clear that, in this case, Dr. Rinke fully intended to transmit her grievance to the next level within the proper time frame. As was the case in Guittard (supra) , here, too, there was a clear intention, at the outset, to contest the denial of the grievance. In these types of situations, the clear intent of the grievor is, I believe, very important.

[22]   The grievor did what she had done previously, in another grievance, and that was to send her request to move the grievance along to her representative. She did all she could, except perhaps to continually call her representative to see where the reply was. Given the representative's submissions about how previous grievances had taken their time to move through the process, I do not find the lack of continued contact between Dr. Rinke and her representative on this matter to be unreasonable.

[23]   This case, as I understand it, concerns a perceived right under the terms and conditions of the collective agreement. If Dr. Rinke is entitled to a certain benefit because of the language of the collective agreement, then, in light of the circumstances of this particular case, I do not feel that it is reasonable to deny her the right to argue for said relief.

[24]   No prejudice would accrue to the employer, of which I was made aware, by allowing this extension. Dr. Rinke clearly intended the matter to proceed, and she would be seriously prejudiced by not having the matter do so.

[25]   Accordingly, the application for relief sought pursuant to paragraph 63(b) of the PSSRB Regulations and Rules of Procedure is granted.

Joseph W. Potter,
Vice-Chairperson

OTTAWA, March 18, 2005.