FPSLREB Decisions

[1]    Patti Ann Peacock complains, pursuant to section 23 of the Public Service Staff Relations Act, R.S.C. 1985 c. P-35, that her bargaining agent, UNION OF CANADIAN CORRECTIONAL OFFICERS - SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA - CSN (UCCO - SACC - CSN), has acted in an arbitrary, discriminatory, and bad faith manner in failing to process her grievance concerning her rejection on probation as a correctional officer (CX-01) at Drumheller Institution.

[2]    Ms. Peacock's complaint was filed with the Board on August 14, 2003. She complained that her local bargaining agent's representative did not transmit to the second level of the grievance process a grievance that she had filed against her rejection on probation.

[3]    The complaint was scheduled for mediation and, on December 29, 2003, the respondent, "[w]ithout admission to the facts as stated in this complaint, nor to liability. . . .", agreed to most of the remedies sought by Ms. Peacock, which included:

. . .

1. An Order that the UCCO proceed with the Complainant's grievance against the CSC to adjudication;

2. An Order that the UCCO represent the Complainant at that adjudication and bear the costs of that representation;

3. An Order dispensing with or extending any time requirements that would preclude the UCCO from proceeding with the Complainant's grievance to adjudication;

. . .

[4]    On January 16, 2004, Ms. Peacock requested that the respondent ". . . either obtain written agreement from the employer to dispense with all applicable time lines that may have expired in relation to [her] grievance or, alternatively, obtain an Order from the PSSRB to the same effect." Ms. Peacock also requested that her complaint be held in abeyance pending adjudication of her rejection grievance.

[5]    On January 28, 2004, the Board provided the employer with a copy of the complaint and Ms. Peacock's request of January 16, 2004.

[6]    On March 9, 2004, the employer opposed the request to hold the complaint in abeyance and informed the Board that it intended to object to the jurisdiction of an adjudicator to hear Ms. Peacock's grievance. One of the grounds raised by the employer related to the timeliness of the grievance's presentation at the second level of the grievance process.

[7]    On the basis of the parties' availability, the hearing of this complaint was scheduled for September 21, 2004. The parties and the employer were informed accordingly.

[8]    On May 28, 2004, the Board informed the parties and the employer of the following:

. . .

The hearing scheduled for September is confined to the issues arising our of the complaint only and will not touch on the substance of any grievance. While the Board is cognizant that there are ongoing discussions between the complainant and respondent, the complaint cannot be closed until withdrawn by the complainant or a decision is rendered. Further, please be advised that an Order dispensing with or extending any time requirement can only be made as a result of a decision on the merits which would be in favour of the complainant. Hence, a hearing on the matter will be required in order to address the issue of liability as well as the issue of any remedies which might flow from a finding adverse to the bargaining agent.

. . .

[9]    In this hearing, I heard oral evidence from Patti Ann Peacock and Rodney Morgan, on behalf of the applicant, and Jean-Jacques Beauchamp, on behalf of the bargaining agent. Although the employer filed a letter objecting to the grievance, counsel for the employer did not appear at this hearing.

[10]    Ms. Peacock commenced employment with the Correctional Service of Canada (CSC) at the Drumheller Institution on October 1, 2001. Ms. Peacock was a probationary employee. On or about April 23, 2002¹ , while off duty in the City of Calgary, Ms. Peacock and a co-worker, Gavina King, were charged with assaulting a cab driver. When the employer learned of the criminal charges, the employer suspended Ms. Peacock without pay, on April 26, 2002.

[11]    Ms. Peacock indicated that, on June 2, 2002, she got a letter in the mail to attend a meeting at the A-1 building at Drumheller Institution with the Warden, F.E. Wilson. She was instructed to bring a bargaining agent representative. She attended the meeting with David Newhook. Ms. Peacock testified that the Warden indicated that he was "going with the investigation he conducted", and that Ms. Peacock was rejected on probation. Ms. Peacock indicated that she pleaded with the Warden that she had gone to university for four years, that she had an RCMP background, and that she would never jeopardize her job by doing something like this. The employer terminated Ms. Peacock's employment by rejecting her on probation.

[12]    After the meeting with the Warden, Ms. Peacock had a meeting with Mr. Newhook. Ms. Peacock related her understanding of her meeting with Mr. Newhook. Mr. Newhook indicated that she would only have to go through the first level of the grievance process, because of her short-term employment, and told her to fill out the grievance form. He told her that she should find a job immediately because the process would "take a while". She made arrangements for her common-law husband, Rodney Morgan, to bring her the form, which he did two days later.

[13]    Ms. Peacock called Mr. Newhook to obtain instructions on how to fill out the grievance form. She filled out the form and handed it back to Rodney Morgan. She knows that Rodney Morgan took the form into Drumheller Institution, as she received a reply on the first-level grievance a couple of days later.

[14]    The employer's answer to the grievance at the first level is set out in the Management Decision on Grievance dated July 4, 2002 (Exhibit 1):

. . .

Please be advised that I have thoroughly reviewed all the circumstances and information concerning your First Level Grievance concerning your dismissal on erroneous facts of the investigation and being rejected on probation.

On May 14, 2002 a Disciplinary Investigation was completed in regard to your alleged misconduct. You indicate that there were erroneous facts included in the report and you did not participate in any assault. I find no reason to believe that the information contained in the Disciplinary Investigation Report, dated May 14, 2002, is not factual and represents a very thorough and accurate representation to [sic] the misconduct you were involved in.

I find that you continue to take no responsibility for your actions. I also find that your behavior is unacceptable. The evidence gathered from the investigation determined that you were belligerent to the waitress working at the Town and Country Hotel, you refused to leave, the police were called, and you continued to be uncooperative. Following your removal from the hotel, you entered a cab, and while the cab driver was driving, became verbally abusive, and then physically assaulted the cab driver, who in turn fled from you, and called the police. You have been charged with assault.

As an employee of the Correctional Service of Canada you are expected to behave on and off duty in a manner that reflects positively on the Service. In rendering my decision about your rejection on probation, I took into consideration your service record, including the fact that you have been employed by the Correctional Service of Canada less than one year, and the fact that you continue to take no responsibility for your actions.

My decision remains that you are rejected on employment for cause.

In view of the foregoing the corrective action request is denied. You will not be reinstated as a CSC employee. Your grievance is denied in full.

. . .

[15]    Ms. Peacock acted on Mr. Newhook's advice to find work. She left Alberta to find work. She remained in contact with Mr. Morgan, and she maintained her postal box number in Drumheller and her phone number with Mr. Morgan. She indicated that Mr. Newhook knew of her relationship with Mr. Morgan and knew how to reach her.

[16]    Ms. Peacock found work near Field, British Columbia. Mr. Morgan travelled from Drumheller to visit her in Field, on or about July 5, 2002. When Mr. Morgan came to visit her, he had two more grievance forms, which she had to sign and date. She indicated that Mr. Morgan told her that another bargaining agent representative, Brent Houghton, had given Mr. Morgan instructions to have Ms. Peacock sign the forms. Ms. Peacock gave the signed forms back to Mr. Morgan, and she believes that Mr. Morgan handed them to Mr. Houghton four days later, when Mr. Morgan returned to Drumheller, following his days off.

[17]    During that summer, Ms. Peacock had a seasonal job working out in the bush, and she came in to town every 15 days. Ms. Peacock testified that, in September, she phoned Mr. Houghton's home in Drumheller and left a message with Mr. Houghton's wife to have him call her about a union matter. Ms. Peacock testified that she was told that Mr. Houghton's wife said she would refer it to him.

[18]    Ms. Peacock did not receive a phone call back. Two or three weeks later, she phoned Mr. Houghton, left a message on his answering machine, and left two phone numbers where she could be reached. She did not receive a reply from Mr. Houghton. Ms. Peacock indicated that she followed up by leaving another message with Mr. Houghton's wife, who indicated that she would pass on the message.

[19]    By this time, it was November 3, 2002, and Ms. Peacock returned to Drumheller and moved back in with Mr. Morgan. She testified that she attempted to contact Mr. Houghton at home and was unable to reach him. She testified that she asked several times for Mr. Morgan to contact Mr. Houghton about the grievance. The final response that she received from Mr. Houghton via Mr. Morgan was "it was out of his hands".

[20]    At all material times, Ms. Peacock maintained her innocence of the criminal charges, and ultimately the Crown withdrew the charge against her. The charges, however, were withdrawn after Ms. Peacock received her letter rejecting her on probation.

[21]    After she went to court, and the charges were stayed, Ms. Peacock attempted to contact Mr. Beauchamp, the bargaining agent's advisor for the Prairie Region. She indicates that, on February 12, 2003, she sent an e-mail to Mr. Beauchamp explaining who she was and what the situation was, advised that she was not getting any response from the local union representative and that charges were withdrawn; she also asked what she should do.

[22]    On February 27, 2003, Ms. Peacock contacted Mr. Beauchamp by phone. She indicates that Mr. Beauchamp said that she had a union representative at the time, and this never should have happened. He indicated that she should submit a resignation, and that way he could get some information on the situation to help her out.

[23]    Ms. Peacock testified that she continued to e-mail Mr. Beauchamp to find out what she should do, and she indicated that, eventually, Mr. Beauchamp and his secretary ceased replying to her correspondence.

[24]    On May 5, 2003, Ms. Peacock e-mailed Kevin Grabowski, Regional President of the bargaining agent, and explained her situation and what she went through with Brent Houghton. An exchange of e-mails between Mr. Grabowski and Ms. Peacock are filed as an exhibit (Exhibit 4). Mr. Grabowski's reply, in short, was that it appeared that Ms. Peacock had been rejected while on probation and that, whether or not she was charged and found guilty, she could be released by the CSC. Further, he indicated that the complainant missed the time frames for filing the grievance at the second level of the grievance process, and that the grievance was abandoned. He indicated that she left Drumheller without leaving a forwarding address. The e-mail concluded with the following advice:

. . .

I would suggest that possibly calling the Warden and informing him that your charges were in fact dismissed and you would like him to reconsider the dismissal, and present it as a resignation, thus giving you the opportunity to reapply.

. . .

[25]    In cross-examination, Ms. Peacock advised that she had received a copy of the collective agreement from Mr. Houghton when she first started at work. She had never read the collecting agreement. She was not aware of time limits, and no one advised her of time limits in filing grievances. Ms. Peacock emphatically stated that she did not abandon her grievance.

[26]    Mr. Morgan gave evidence at the hearing. He confirmed that he received the grievance forms from Mr. Newhook, took them to Ms. Peacock to be filled out, and returned the forms to Mr. Newhook, who was president of the bargaining agent local at the time. Mr. Morgan also confirmed that he received further documents from Mr. Houghton and took them to Ms. Peacock, and when he returned to work, he walked to the bubble at Drumheller Institution and delivered the documents to Mr. Houghton. Mr. Morgan said that Mr. Houghton said that "he would get them out tomorrow".

[27]    Mr. Morgan indicated that he worked with Mr. Houghton on a regular basis. He indicated that he was in correspondence with Ms. Peacock every 10 to 12 days by phone and e-mail. He indicated that he checked with Mr. Houghton on the status of the grievance and whether Mr. Houghton heard anything, and Mr. Morgan said that he was advised by Mr. Houghton that he had not heard anything.

[28]    Mr. Morgan indicated that he had further conversation with Mr. Houghton about the grievance on July 16, 2004, at the main gate of Drumheller Institution, when Mr. Houghton came in to drop off a cell phone. Mr. Morgan indicated that he asked Mr. Houghton whether he had heard about the upcoming hearing. Mr. Morgan indicated that Mr. Beauchamp had told him something about it, and that Mr. Houghton remembers giving Mr. Morgan the forms and that Mr. Morgan returned the forms, but that Mr. Houghton did not recall what he did with the forms.

[29]    Mr. Morgan indicated that Mr. Houghton is no longer a member of the bargaining unit, and that, up to about a year ago, when Mr. Houghton was promoted to a supervisory position, Mr. Morgan worked on a regular basis with Mr. Houghton. Mr. Morgan indicated that there is a long family friendship between Mr. Houghton and him, and that Mr. Houghton knew of Mr. Morgan's relationship with Ms. Peacock and knew that Mr. Morgan could be used as a "go between" and that the matters would remain confidential. Mr. Morgan believes that Mr. Houghton forgot to file the forms. It is unfortunate that neither party called Mr. Houghton to give evidence concerning the handling of this grievance.

[30]    Mr. Jean-Jacques Beauchamp also gave evidence in these proceedings. He is a bargaining agent officer with 15 to 16 years of experience and worked as a correctional officer for approximately 20 years. Mr. Beauchamp first became aware of Ms. Peacock's grievance in February of 2003. Mr. Beauchamp indicated that his investigation revealed that the grievance was filed at the first level, but that no paper-work was filed to transmit the grievance to the second or third level. Mr. Beauchamp spoke to Mr. Houghton, who was the president of the local, and Mr. Houghton recalled that he received documents from Mr. Morgan, and that Ms. Peacock had left the area, but Mr. Houghton did not recall what he did after receiving the documents. Mr. Beauchamp was uncertain of the training that Mr. Houghton had in the handling of grievances.

[31]    In cross-examination, Mr. Beauchamp indicated that, while union officials give advice to their members, it is also the responsibility of members to read the collective agreement and know what their rights are.

[32]    The relevant collective agreement between the parties was filed as an exhibit in these proceedings (Exhibit 5). The collective agreement contains the following time limits, which are applicable in this case for the filing of grievances:

20.10 An employee may present a grievance to the First (1st) Level of the procedure in the manner prescribed in clause 20.05 not later than the twenty-fifth (25th) day after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of the action or circumstances giving rise to the grievance.

20.11  The Employer shall normally reply to an employee's grievance, at any level in the grievance procedure, except the final level, within ten (10) days after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of he action or circumstances giving rise to the grievance.

Argument

For the Complainant

[33]    Ms. Peacock argues that the grievance was of the most serious kind, involving allegations of criminal misconduct which had repercussions for her employment and reputation. The grievance was the opportunity for Ms. Peacock to be heard and the opportunity for her to get her job back. Ms. Peacock was entitled to have the bargaining agent exercise the highest standard of care and due diligence in forwarding her matter to the employer, at the second level of the grievance process. While the bargaining agent has discretion in forwarding a grievance, once it decides to forward the grievance, there is a duty not to be reckless and to proceed with due diligence: Savoury v. Canadian Merchant Service Guild, 2001 PSSRB 79; and Shanks v. Transportation Communications International Union and CANPAR Transport Ltd., [1996] C.L.R.B.D. No. 20 (QL).

[34]    It is clear that there was a serious error when the local president of the bargaining agent failed to follow through in the filing of the grievance at the second level, failed to communicate with Ms. Peacock concerning her grievance, and failed to repair the breach of timeliness by trying to get an extension of deadlines. Further, the bargaining agent failed to investigate Ms. Peacock's grievance and appears to have accepted the employer's version of the facts, then threw the blame onto Ms. Peacock for missing deadlines. The appropriate remedy is that this matter proceed to adjudication within a defined period of time: Shanks (supra).

[35]    Ms. Peacock argues that the bargaining agent has admitted its error, but there is a need to extend the time limits pursuant to section 63 of the Public Service Staff Relations Act (PSSRA), in order to ensure that her grievance can properly proceed, given the position taken by the employer that the grievance is untimely. Ms. Peacock relies on Schenkman v. Treasury Board (Public Works and Government Services Canada) , 2004 PSSRB 1 and says that the proper considerations of clear and compelling reasons for the delay; the length of the delay; the due diligence of the grievor; balancing injustice to the employee against the prejudice to the employer in granting an extension; and the chance of success of the grievances all support an extension of time on the circumstances of this case.

[36]    Ms. Peacock further submits that the "chance of success" element should properly be viewed as a question of whether the grievance has no chance of success: Shenkman (supra).

[37]    Ms. Peacock seeks an order that the bargaining agent take this matter forward to adjudication at its own expense and seeks an order that the timelines be relaxed. She says that her grievance should be taken to adjudication now, as it has been outstanding for two years, and it is not likely to be resolved through the grievance process. Ms. Peacock further argues that, as her grievance relates to a termination matter under the Financial Administration Act, her grievance should have proceeded directly to the final level of the grievance process and it could proceed directly to adjudication.

For the Respondent

[38]    The bargaining agent indicates that it would be prepared to represent Ms. Peacock at an adjudication hearing and that it has no problem in attempting to set aside the employer's position. There is a limited right of a probationary employee to go to adjudication under the PSSRAv The bargaining agent says that, instead of making a decision after a period of probation, the employer fired Ms. Peacock, and this violates the collective agreement: Larson v. Treasury Board (Solicitor General Canada - Correctional Service) , 2002 PSSRB 9. Further, rather than awaiting the outcome of the charges, the employer terminated her immediately. There is sufficient merit in this case to support an extension of time application.

[39]    While Ms. Peacock had a responsibility to process her grievance, and she did not read the collective agreement, there was an error made by the local union president, and he should have presented the grievance at the second level of the grievance process. The bargaining agent admits that it was something simple and that the actions of its representative were serious and negligent. The bargaining agent concedes that Ms. Peacock relied on Mr. Houghton to present the grievance at the second level of the grievance process and "how do you explain not filing two pieces of paper when a person is out of a job?". The bargaining agent says that I should not blame it because its local president did not do what should have been done.

Reply

[40]    Ms. Peacock argues that the local president is the agent of the bargaining agent, and, therefore, the bargaining agent is visited with the consequences of its agent's negligence.

Reasons

Breach of the Duty of Fair Representation

[41]    The duty of fair representation is set out in subsection 10(2) of the PSSRA:

  (2) No employee organization, officer or representative of an employee organization, that is the bargaining agent for a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit.

[42]    This case involves a termination grievance and, from the point of view of the complainant, is a very serious matter. Her career with the CSC was terminated. From her point of view, her career was terminated when she was innocent of a criminal charge laid for off-duty conduct, which was ultimately stayed by the Crown. This is not a case where the bargaining agent considered all the facts of the case, the relevant law, and made a reasoned decision that the case was lacking in merit and determined not to proceed further with the grievance. Unfortunately, this is a case where the local representative of the bargaining agent dropped the ball and failed to file the transmittal forms to move Ms. Peacock's grievance on to the second and third levels of the grievance process. Further, the local representative did not communicate his error to Ms. Peacock and did not take any steps to repair his error. The evidence before me clearly indicates that Ms. Peacock did not intend to abandon her grievance, that she signed the forms to advance the grievance, that she arranged for its timely transmittal to the local president of bargaining agent, and that she inquired on a regular basis to determine the status of her grievance.

[43]    The Board recently had the occasion to consider the current state of the law with regard to subsection 10(2) of the PSSRA, in its decision in Savoury (supra) . In Savoury (supra), the employee referred to Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 9, which contained a number of principles. The principle most applicable to this case is set out below:

. . .

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility to the employee.

. . .

[44]    In Savoury (supra), the Board wrote at paragraph 126:

[126] When representation is undertaken by the union, such representation must be fair, genuine and not merely apparent. It must be undertaken with integrity and competence, without major negligence, and without hostility towards the employee. When a consideration is made in regard to arbitration, it is recognized that the employee does not have an absolute right to arbitration for the union enjoys considerable discretion in the making of this decision, but that discretion has limits based on the severity and impact of the disciplinary action upon the employee. . . .

[45]    This is not a case where the bargaining agent acted in bad faith, with any lack of integrity, or with hostility towards the complainant. This is not a case in which the employee is asking the Board to review the bargaining agent's exercise of discretion in the handling of her grievance. It is a case where there is serious and major negligence by a local president of the bargaining agent in failing to present the grievance at the second level of the grievance process, and then failing to inform Ms. Peacock that he had not presented the grievance that he had undertaken to present on her behalf. The local president failed to communicate with Ms. Peacock concerning her grievance and failed to take steps to repair his negligence. This case was important to Ms. Peacock, and it would not have taken much effort to transmit the forms that she provided to the bargaining agent's representative. It is apparent, and it is conceded by the bargaining agent, that it failed in its duty to represent Ms. Peacock. The bargaining agent concedes that the conduct of Mr. Houghton in failing to file the forms is serious and negligent. In my view, the bargaining agent's failure to present the grievance at the second step of the grievance process amounts to arbitrary conduct. The bargaining agent is responsible for the acts of negligence of its local representative, at least where those acts relate to the failure to file a grievance, when it had undertaken to do so. On the facts of this case the bargaining agent has breached section 10(2) of the PSSRA.

Extension of Time

[46]    The bargaining agent is prepared to represent Ms. Peacock in an adjudication proceeding should I relax the timeliness barrier to proceeding to adjudication. The bargaining agent, however, also argues that Ms. Peacock did not respect articles 20.05, 20.10 and 20.12 of the Collective Agreement, and there was an onus on her to bring the matter to the attention of the bargaining agent, and that had she done this, some attempt could have been made to address the time limits issue at an earlier time.

[47]    In considering the issue of relief of time limits, I have considered the reasons for the delay, the length of the delay, the diligence of the grievor, the issue of injustice or prejudice, and the chance of success. In Shenkman (supra) , the Board recently set out the basic criteria in determining whether to exercise jurisdiction to extend time, pursuant to section 63 of the PSSRA. Those factors include:

-	clear, cogent and compelling reasons for the delay;
-	the length of the delay;
-	the due diligence of the grievor;
-	balancing the injustice to the employee against the prejudice to the employer in granting and extension; and
-	the chance of success in the grievance

[48]    In my view, it is apparent that Ms. Peacock formed the intention to grieve and took concrete action in terms of signing the grievance form and making arrangements for the filing of the form with the employer within the relevant time frames at the first and second levels of the grievance process. While this matter concerns a rejection on probation, where the employee was accused of criminal off-duty conduct, this is not a case where the employee waited until the resolution of the criminal charges before taking steps to grieve the employer's rejection on probation. The decision to grieve was timely and was made within the relevant time frames for filing the grievance.

[49]    There does not appear to have been any significant delay in Ms. Peacock's actions or in the steps she took to remedy the bargaining agent's failure to file the appropriate grievance transmittal forms.

[50]    The delay in this matter, in my view, was caused by the failure of the local president of the bargaining agent to file the appropriate forms. It appears that the responses of the president when inquiries were made - to the effect that he had not heard anything - may have had the effect of misleading Ms. Peacock that all was well and may have discouraged her from taking further steps to push the grievance forward herself. She appears to have relied on the bargaining agent and was not informed that the bargaining agent had done nothing with her grievance forms.

[51]    In this case, Ms. Peacock diligently pursued her grievance by maintaining contact with the bargaining agent. When the local president ceased responding to her, she contacted other persons higher up in the hierarchy of the bargaining agent to determine the status of her grievance. In my view, there is a reasonable explanation for any delay and due diligence of the complainant in pursuing this matter.

[52]    I note that this is a serious matter for Ms. Peacock, as her employment was terminated. The context is out-of-work behaviour, which was denied by Ms. Peacock, and the criminal charges were ultimately stayed by the Crown. Ms. Peacock was deprived of her opportunity to question her termination because of the negligence of her bargaining agent's representative. In my view, there is a clear injustice to the employee if I do not grant relief from the time limits in this case. I see no corresponding prejudice to the employer. The employer chose not to appear in this proceeding, although it had been informed of this hearing and of the issues at stake, and there was no evidence tendered demonstrating prejudice to the employer, if this matter were to proceed to adjudication. The injustice to the employee in this case weighs in favour of an order relieving Ms. Peacock from the consequences of the expiration of time.

[53]    In assessing the chance of success, the adjudicator in Schenkman (supra) considered that the inquiry was really whether the grievance was devoid of merit, as it is difficult to address the merits without considering evidence. I note that there was no substantial evidence called at this hearing concerning the merits of this matter. The bargaining agent, however, drew my attention to the adjudication decision in Larsen (supra). This case dealt with the suspension of an employee by the Warden without a thorough investigation, after the grievor faced criminal charges. In that case, there was a finding that the conduct of the employer in imposing a suspension was disciplinary and not administrative. I note that this case did not involve a probationary employee.

[54]    In response to Ms. Peacock's complaint, the employer indicated that it intended to raise an issue of timeliness, as well as an issue of jurisdiction. The employer's position concerning jurisdiction is set out as follows:

. . .

The first objection deals with the Board's [sic] jurisdiction to hear the grievance. The wording of section 92 of the Public Service Staff Relations Act (PSSRA) does not support this reference to adjudication. Ms. Peacock's grievance does not relate to the interpretation or application of a provision of a collective agreement or an arbitral award or a disciplinary action resulting in suspension or a financial penalty, or termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act (FAA). In addition, there is a prohibition in subsection 92(3) of the PSSRA of a reference to adjudication by the Board of a termination of employment under the PSEA. Furthermore, the grievance did not allege a disguised disciplinary termination, nor was the matter dealt with on that basis. Therefore, it would be changing the nature of the grievance to consider it as a grievance relating to termination of employment pursuant to the FAA (as per the Burchill decision from the Federal Court of Appeal).

. . .

[55]    One would anticipate from the employer's position that a major issue before the adjudicator will be jurisdiction to entertain a grievance, where the employer alleges that Ms. Peacock was rejected on probation.

[56]    It is clear that, in such a case, an adjudicator has jurisdiction to determine jurisdiction. Some decisions, including Canada (Attorney General) v. Leonarduzzi 2001 FCT 529, show that the issue of rejection on probation as disguised discipline is often a difficult case for a bargaining agent to meet. A difficult or arguable case, however, is not a case entirely devoid of merit. There is, in this case, sufficient evidence to meet the standards expressed in Schenkman (supra). I note that I have considered the issue of merit, in the sense of determining that this case is not entirely devoid of merit, to the extent of exercising my discretion to relieve Ms. Peacock from the consequences of the negligent handling of her grievance by the local president of the bargaining agent. The jurisdictional issue is, however, still a live issue for the adjudicator who will hear Ms. Peacock's this grievance.

[57]    I am satisfied that this is an appropriate case to relieve against the filing time limits in the collective agreement.

Remedy - Back to Grievance Process or on to Adjudication?

[58]    In this case, Ms. Peacock asks that the bargaining agent be directed to take her grievance to adjudication and that the matter proceed directly to adjudication. I note that, in Savoury (supra), the remedy ordered by the Board, at paragraph 152, was:

[152] . . . I order that the Guild represent the complainant on an application to the Board for an extension of time to submit his grievance to adjudication pursuant to section 63 of the P.S.S.R.B. Regulations and rules of Procedure. In the event the Guild is successful in acquiring an extension of time to submit the complainant's grievance to adjudication, I then order that the Guild represent the complainant at the adjudication hearing.

[59]    In Savoury (supra), the bargaining agent had determined not to proceed to adjudication after all the steps of the grievance process were exhausted. In the present case, however, the grievance process was not exhausted due to the negligence of the bargaining agent's local representative in the presentation of the grievance at the second level of the grievance process.

[60]    Ms. Peacock indicated that a termination grievance need only be presented at the final level, in accordance with clause 20.19 of the collective agreement. This article reads as follows:

20.19 Where the Employer demotes or terminates an employee for cause pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, the grievance procedure set forth in this Agreement shall apply except that the grievance shall be presented at the final level only.

[61]    I note that, in this case, Ms. Peacock's employment was terminated as she was rejected on probation. That is the factual and legal situation which Ms. Peacock wishes to challenge before an adjudicator. She wishes to challenge that termination, as a termination for cause. There is a significant jurisdictional issue that has been raised by the employer, on which an adjudicator will need to rule, and which may require the hearing of evidence. The focus of the hearing before me was to determine whether the bargaining agent breached its duty to represent Ms. Peacock. The focus, in an adjudication hearing following the grievance process, will be whether or not the rejection on probation was disguised discipline.

[62]    In terms of remedy, I have given some thought as to whether I should grant the remedy sought by Ms. Peacock. I am concerned about the remedy sought for a breach of section 10(2) of the PSSRA. Subsection 23 (2) of the PSSRA provides:

  (2) Where, under subsection (1), the Board determines that the employer, an employee organization or a person has failed in any manner described in that subsection, the Board may make an order directing the employer, employee organization or person to observe the prohibition, give effect to provision or decision or comply with the regulation, as the case may be, or take such action as may be required in that behalf within such specified period as the Board may consider appropriate.

[63]    The grievance process is set out in article 20 of the collective agreement (Exhibit 5). The grievance process contains a three-step recourse process, with the final level as the Deputy Head or the Deputy Head's authorized representative. In this case, the local president of the bargaining agent failed to transmit the grievance to the intermediate level (level 2) of the grievance process. It is clear, in this case, that the grievor was unable to exhaust the second and third levels of the grievance process because of the negligence of the bargaining agent's representative.

[64]    Before proceeding to adjudication of a grievance before an adjudicator, a party must exhaust the grievance process. This principle is reflected in clause 20.23 of the collective agreement; either following the answer or the period of time for the employer to provide an answer at the final level of the grievance process. It is clear, from the opening words of subsection 92(1) of the PSSRA, that the grievance process must be exhausted before an aggrieved employee has the right to refer a grievance to adjudication:

92. (1) Where an employee has presented a grievance, up to and including the final level of the grievance process. . . .

. . .

[65]    The grievance process may be exhausted either by the employer giving an answer within the specified time period, or by the employer failing to give an answer within the specified time period for the final level of the grievance process. In my view, the allegation that the rejection on probation was in fact a dismissal for cause pursuant to paragraph 11(2)( f) or (g) of the Financial Administration Act does not automatically remove a grievance from the three-step process in this collective agreement. The allegation of a dismissal for cause is, in fact, the main issue that Ms. Peacock wishes to argue before an adjudicator should I grant relief in this process.

[66]    I note that the employer objected to Ms. Peacock's grievance both on the basis of timeliness and on the question of jurisdiction under s. 92 of the PSSRA. One might infer from the employer's position expressed to the Board that there may be no useful purpose served in directing that the parties exhaust each step of the grievance process, prior to a reference to adjudication. The statutory scheme for adjudication, however, provides that the grievance process must be exhausted. In my view, the power to grant relief in section 23 of the PSSRA does not include the power to exempt an employee from following the levels of the grievance process. Ultimately, this case may require a determination of the jurisdictional issue by an adjudicator, should the employer maintain the position expressed in its correspondence to the Board. Alternatively, however, Ms. Peacock will have the opportunity to present the employer with new information related to the status of her criminal charges, which may have an impact on the employer's decision-making process. At this point, it is sheer speculation as to whether there would be "any useful purpose" in proceeding through the grievance process. I am, however, satisfied that the appropriate remedy is to put Ms. Peacock back into the position in which she would have been, had there been no negligence on the part of the bargaining agent in presenting her grievance to the second level of the grievance process.

[67]    In my view, directing the bargaining agent to proceed to adjudication puts Ms. Peacock in a better position than she would have been, had the bargaining agent filed her grievance at the second level of the grievance process. As I indicated earlier, not much evidence was led by either the bargaining agent or Ms. Peacock concerning the merits of this grievance. This case is not directed at the failure of the bargaining agent to take a case to adjudication, but rather the failure of the bargaining agent to take the steps necessary to ensure that the grievance was presented at each level of the grievance process, so that the position of the complainant was protected. A bargaining agent is not required to take every case forward to the grievance process, but it is required to examine the merits seriously before deciding not to take a case to the grievance process. In this case, the bargaining agent did not get to a serious examination of the merits, because of the negligence of the local president.

[68]    It appears from the submissions of the respondent that, if I relieve Ms. Peacock from the timeliness bar to her grievance, it intends to represent her at any adjudication hearing. In my view, it is premature to make an order that the bargaining agent proceed through to adjudication at its own cost, as requested by Ms. Peacock. It is not apparent to me, from the evidence tendered at this hearing, that the bargaining agent has made a serious examination of the merits of the grievance. It may well have done so, but as I have indicated, this was not a case where the bargaining agent raised as a defence to the complaint that it had seriously examined the merits of the grievance and determined not to proceed further with the handling of Ms. Peacock's grievance. I note that bargaining agents are given fairly wide latitude in the decision to take a matter to adjudication. In my view, it would not be a proportional remedy to order that the bargaining agent must take a matter to adjudication, where it failed to present the grievance at second level of the grievance process. Further, such an order is not consistent with the grievance adjudication scheme, which requires the grievance procedure in the collective agreement to be exhausted prior to a reference to adjudication. The proper remedy on the evidence in this case is to relieve against time limits and permit the bargaining agent to present the grievance at the second level of the grievance process. I therefore am not prepared at this time to make an order that the bargaining agent proceed to adjudication and bear the costs of proceeding to adjudication.

[69]    I therefore direct that the complainant and the bargaining agent shall have relief from the expiration of the time limits to present the grievance to the employer at the second level of the grievance process. The deadlines for filing the grievance at level two shall be 21 days from the date of this decision.

Paul Love,
Board Member

CAMPBELL RIVER, January 31, 2005.

¹  The date is taken from the complainant's response filed with the Board dated April 7, 2004.