FPSLREB Decisions

Application before the Chairperson

[1]   Mr. Danny Palmer, the applicant, joined the Canadian Security Intelligence Service (CSIS or the "Service") in 1991.  By letter dated June 18, 2003, Mr. Palmer was dismissed from the Service for non-disciplinary reasons.  This termination was grieved by Mr. Palmer.

[2]   On August 5, 2003, the then Director of the Service denied Mr.  Palmer's grievance (Exhibit E-5).  After several months, during which time the applicant sought to obtain documents from the Service through the Access to Information and Privacy (ATIP) process, Mr. Palmer presented a supplemental grievance early in March 2004.  This grievance alleged bad faith and disguised discipline.

[3]   By letter dated April 19, 2004, the Service refused to accept Mr.  Palmer's supplemental grievance on the basis that it was out of time.  Following the Service's refusal to accept his supplemental grievance, Mr. Palmer sought to refer the matter to adjudication.

[4]   On July 5, 2004, the Service objected to the referral of the supplemental grievance to adjudication on the basis that it had been presented well beyond the time limits for such a referral.  The CSIS also argued that the supplemental grievance was not adjudicable under the Public Service Staff Relations Act since Mr.  Palmer had been terminated for cause in relation to performance issues and not discipline.

[5]   On July 14, 2004, Mr. Palmer wrote a lengthy letter in which he requested that the Board exercise its discretion to extend the time limits thus enabling him to refer his supplemental grievance to adjudication.  This decision deals solely with Mr.  Palmer's application for an extension of time to refer his grievance to adjudication.

[6]   On April 1, 2005, the Public Service Labour Relations Act (the " new Act" ), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.  Pursuant to section 39 of the Public Service Modernization Act, I continue to be seized with this application.

Preliminary matters

[7]   In letters dated November 7 and 14, 2005, Mr.  Palmer presented two motions.  First, the applicant asked that Daniel Roussy (the Service's counsel) not be authorized to represent the Service since ". . . he has a fiduciary duty to the Government of Canada and Canadian Laws."  Second, Mr. Palmer moved to call Mr.  Roussy as a witness in this matter.

[8]   At the outset of the hearing, I ruled against Mr.  Palmer on both motions.  The Service is entitled to be represented by the counsel of its choice at any hearing before me.  Given Mr.  Roussy's role and his responsibilities as counsel for the Service in these matters, it would be inappropriate to allow the applicant to call the opposing party's counsel as a witness.

[9]   At the time of the hearing in this matter, Mr.  Palmer did not have a security clearance.  I therefore decided to limit this application to the request for an extension of time and not deal with the merits of his supplemental grievance, for which classified information would likely be produced.

Summary of the evidence

[10]   Dennis Richard, in his then capacity as President of the Employees' Association, received a letter from Mr. Palmer late in June 2003 (Exhibit G-3).  In this letter, the applicant expressed his desire to grieve his termination ". . . prior to the PSSRB. . . ."

[11]   The Employees' Association is an organization mandated by the Service ". . . to provide support to all non–unionized employees, in dealing with the senior management of the Service. . . ." (Exhibit E-3).  In particular, the Employees' Association ". . . will . . . represent employees in the resolution of their complaints and grievances, including the application of Human Resources policies, and provide assistance to employees facing disciplinary action."

[12]   Mr. Richard recalls discussing the matter with Mr. Palmer at a hotel in Montreal early in July 2003.  At this meeting, Mr. Palmer produced a lengthy draft grievance document (Exhibit G-4) in which he listed several errors of fact made by his supervisors in their evaluation of his performance as well as several instances of bad faith.

[13]   Mr. Richard suggested to Mr. Palmer that a better approach would be to admit his mistakes, be remorseful and ask for another chance.  Mr.  Richard recalls telling Mr.  Palmer that, if the evidence eventually showed bad faith on the part of the Service, the applicant might have an argument for further action.

[14]   It was Mr. Richard who coined the expression "supplemental grievance" in his discussions with Mr. Palmer.  Mr. Richard candidly admits that he had not been aware of the 30-day time limit for filing a grievance until Mr. Palmer attempted to file his supplemental grievance with Louise  Di Stefano (who succeeded to Mr. Richard as President of the Employees' Association) and it was rejected by the Service.

[15]   Mr. Richard does not believe that the Service would have been prejudiced by granting Mr.  Palmer an extension of time to file his supplemental grievance.

[16]   Mr. Richard recalls talking to Pierre Rocheleau (then Assistant Director of Human Resources) about Mr. Palmer's grievance.  He recalls Mr.  Rocheleau saying that he (Mr.  Rocheleau) could not be involved since the matter was going to the Director of the Service.

[17]   Mr. Richard explained that the Employees' Association is a peer group that does not speak for the Service.  At the end of the day, however, Mr.  Richard feels that the CSIS should accept some responsibility for the actions of the Employees' Association, especially when the advice given does not conform to Service's policy or where the advice given results in the loss of a right.

[18]   Mr. Richard believes that Mr. Palmer was properly terminated for cause.  That belief, according to the witness, explains the advice that he gave to the applicant.

[19]   In August 2003, Mr. Richard responded to Mr. Palmer's request for the names of lawyers who had a security clearance.  He assumed that Mr. Palmer was looking for counsel to represent him at adjudication.

[20]   Mr. Richard does not believe that the allegations of bad faith contained in Exhibit G-4 are founded.

[21]   Pierre Rocheleau testified next.  He recalls a discussion with Mr.  Richard concerning a possible extension of time to allow Mr.  Palmer to obtain documents through the ATIP process.  Mr. Rocheleau recalls telling Mr.  Richard that the request for an extension of time would likely be granted if it were made in writing and within the time limits set by Service's policies.

[22]   Mr. Rocheleau explained that the Service's policies are readily accessible to all employees.  He also confirmed that the Service will direct to the Employees' Association an employee who needs advice concerning a grievance or complaint.

[23]   According to Mr. Rocheleau, the Service's policy concerning extensions of time is clear and must be followed.  Failure to observe the policy strictly would "open the floodgates of uncertainty".  The employer would then lose control of the grievance and adjudication process, which in turn would create an obstacle to good management.  Allowing grievances to go on indefinitely could also affect the Service's ability to staff positions.  Finally, the memories of potential witnesses are bound to fade over time.

[24]   Gérald Bilodeau works for the Service in labour relations.  Mr.  Bilodeau indicated that the Service's time limits for the presentation of grievances can be extended by written request.  He is not aware, however, of an extension of time being granted by the Service after a deadline had expired.  Furthermore, the Service's policies do not allow for the filing of supplemental grievances.

[25]   In July 2003, Mr. Bilodeau had a discussion concerning Mr.  Palmer's upcoming grievance with Mr. Richard.

[26]   The Service will normally direct employees who have complaints or grievances to the Employees' Association for help.  Mr. Bilodeau does not believe that the Service should be held responsible for any bad or erroneous advice given to an employee by the Employees' Association.

[27]   Mr. Bilodeau mentioned a prior disciplinary grievance in which Mr.  Palmer had sought and obtained an extension of time to file his grievance 11  days late.

[28]   Louise Di Stefano, testified next.  She is an employee of the Service who has been involved in human resources and staff relations.  Ms. Di Stefano succeeded to Mr.  Richard as President of the Employees' Association.

[29]   Mr. Palmer phoned Ms.  Di Stefano in January 2004 to discuss the supplemental grievance that Mr. Richard had earlier said he could file following his ATIP requests.

[30]   Ms. Di Stefano eventually received Mr. Palmer's supplemental grievance and passed it on to Mr. Bilodeau.  The Service advised her that it would not accept the supplemental grievance since it was out of time.

[31]   Ms. Di Stefano then informed the applicant of the Service's position and of the fact that the Employees' Association could do nothing more for him.

[32]   From a discussion with Mr. Bilodeau, Ms. Di Stefano believes that the Service would have granted Mr. Palmer an extension of time, had a timely request for it been made in writing.

[33]   Ms. Di Stefano believes that it is the responsibility of the Employees' Association's President to advise employees of their rights and obligations and to deal, if necessary, with issues of timeliness.  She also believes that the Service should, when appropriate, take into account the fact that an employee may have been given bad advice by the Employees' Association.

[34]   Mr. Palmer testified about the circumstances that led to his termination and the presentation of a grievance as well as a supplemental grievance.

[35]   The applicant recalled his discussions with Mr. Richard, whom he considered to be a man of experience in labour relations matters.

[36]   During those discussions, Mr. Richard advised Mr. Palmer that a supplemental grievance could always be filed at a later date should new information become available.  At no time did Mr. Richard advise the applicant that a written document was required in order to obtain the Service's consent to an extension of time so that he could file another grievance.

[37]   In June 2003, Mr. Palmer started making ATIP requests for information that he felt would substantiate a supplemental grievance.  Information from the ATIP requests was not received until June 2004 although the applicant believed that in February 2004 he had enough information to substantiate a supplemental grievance.  The supplemental grievance was presented to the CSIS in March 2004, several months after the Service had terminated his employment.  The supplemental grievance was referred to adjudication on May 14, 2004, following the Service's refusal to deal with it.

Summary of the arguments

[38]   The parties were asked to submit written arguments.  Those submissions are on file.  What follows are brief summaries of those submissions.

For the Applicant

[39]   The issue of timeliness was raised by the Employees' Association President, Dennis Richard.  The Employees' Association is under the control of the CSIS, and its President must follow the directions of management.  Employees of the Service, who find themselves in difficult situations, are directed by the CSIS management to seek advice from the Employees' Association, which acts as a communication conduit between Service employees and management.

[40]   Mr. Richard did not provide the applicant with the fair representation to which he was entitled.

[41]   Five factors are to be considered when dealing with timeliness issues.  They are stated in Trenholm v. Staff of the Non-Public Funds, Canadian Forces (2005 PSLRB 65, ¶  64).

1)  Were there clear, cogent and compelling reasons for the delay?

[42]   Upon termination, the CSIS suspended the applicant's security clearance and denied him access to the classified information that he needed to present a full and complete grievance.

[43]   Mr. Palmer accepted Mr. Richard's suggestion concerning the later filing of a supplemental grievance.  The Service's failure to respond quickly to the applicant's ATIP requests was the reason for the delay in filing the supplemental grievance.

2)  What was the length of the delay?

[44]   The six–or seven–month delay (August/September 2003 to March 4, 2004) is not substantial, given the gravity and complexity of the case.  The delay was caused by the Service's inability to deal with the applicant's ATIP requests in a timely manner.

[45]   The six–or seven–month delay is insignificant when compared to Mr.  Palmer's 12–year career with the CSIS.

3)  Has the applicant been diligent?

[46]   The applicant's continued interaction with the Employees' Association's President, as evidenced by numerous e-mails and phone calls as well as his many ATIP requests, all show diligence on Mr. Palmer's part.

[47]   The applicant admits to a lack of knowledge about the process, which forced him to rely on the advice of the Employees' Association, to which he had been directed by the Service.  The applicant's intention to refer his case to adjudication is clearly indicated in the documentary evidence as early as June 2003 (Exhibit G-3).

4)  What is the balance of injustice to the applicant against the prejudice to the CSIS in granting an extension?

[48]   Needless to say, the termination of his employment, after 12 years' service, has caused Mr.  Palmer extreme prejudice.

[49]   The Service, on the other hand, cannot argue prejudice since the delay was caused by the advice that it gave to the applicant through its Employees' Association.  Furthermore, the Service would benefit in regaining the services of an experienced employee.

5)  What is the chance of success in the grievance, or is the grievance devoid of merit?

[50]   The CSIS has not contested the matters raised in the supplemental grievance.  In any event, the Service did not consider alternative solutions before terminating Mr. Palmer's employment.

[51]   In view of the preceding, the application for an extension of time should be granted.

For the Service

[52]   The CSIS submits that Mr. Palmer was not diligent in handling this file.  The applicant knew or ought to have known the Service's policies concerning grievances and the applicable time limits.

[53]   The Service submits that granting an extension in the circumstances of this case would result in serious prejudice to the CSIS.  Although Mr.  Palmer may have suffered some prejudice when dismissed from the Service, the balance of prejudice would be to the detriment of the CSIS.

[54]   With respect to the five factors stated in Trenholm (supra), the Service submits that:

1. Mr. Palmer has provided no clear, cogent and compelling reason for the delay.  The applicant argues that the Service's tardiness in responding to the ATIP requests prevented him from filing his grievance.  This argument does not hold true since Mr.  Palmer had already prepared a draft grievance in July 2003 concerning several examples of bad faith and disguised discipline that he could have filed on time, subject to the addition of supplementary facts at a later date.

2. The length of Mr. Palmer's delay in filing the supplemental grievance is significant.

3. Mr. Palmer was not diligent in handling the referral to adjudication.  The fact that the applicant did nothing until May 2004 is a compelling argument for concluding that he had not decided to refer his grievance to adjudication before that date.  The applicant only wanted to file a supplemental grievance, a process not contemplated by Service's policy.

4. The CSIS submits that the prejudice that it would suffer would be greater than the prejudice that Mr. Palmer would suffer should I grant an extension of time in this case.  There must be some finality in the process, otherwise cases like this would become unmanageable because anyone could file a referral to adjudication at any time after the time limit in the Service's policies had expired.

   As for Mr. Palmer, he is now employed and there is no evidence that his present conditions of employment are such as to tip the balance of prejudice in his favour.

   In any event, Mr. Palmer represented himself after his termination.  He was the author of his own misfortune.

5. Mr. Palmer was terminated because of poor performance and for no other reason.  The termination in this case was administrative in nature and not disciplinary.  Mr. Palmer has no arguable case on the merits.

[55]   In view of the preceding, the CSIS submits that Mr. Palmer has shown no valid reason that would warrant me exercising my discretion and granting an extension of time.

The Applicant's reply

[56]   The Service's policy cannot override the provisions of the new Act or the Financial Administration Act.

[57]   The Service has not shown any valid reason for its objection to granting an extension of time in this case.

[58]   Since, at the very least, the balance of prejudice is greater for the applicant than for the Service, I should allow the applicant's request for an extension of time.

Reasons

[59]   In determining whether to grant an extension of time, one must look at all the circumstances of the case to ensure that due process is followed in a manner that is fair and equitable for all parties.

[60]   Board cases as well as other jurisprudence have identified five factors that may be considered when dealing with requests for an extension of time.  These five factors were stated and dealt with by the parties to this application in their submissions and need not be repeated here.

[61]   It is clear from the evidence adduced in this case that Mr. Palmer had always intended to grieve his termination on the basis of bad faith and disguised discipline.  His intentions in this regard were communicated to Mr. Richard early in July 2003.

[62]   The delays in this case are attributable in great part to the faulty advice given to the applicant by the Employees' Association and the length of time that it took the Service to deal with Mr. Palmer's ATIP requests.  I therefore find that there exist in this case clear, cogent and compelling reasons for his delay in filing the supplemental grievance.

[63]   The length of the delay, although significant, is not in itself a sufficient reason to rule against the applicant.  This is particularly true since the delay appears, at least in part, to have been caused by the slowness of the Service in responding to Mr.  Palmer's ATIP requests.

[64]   In view of the erroneous advice given to the applicant by the Employees' Association and Mr.  Palmer's continued pursuit of his claims, I find that he was in fact diligent in pursuing his rights.

[65]   The issue of prejudice in this case must be decided in favour of the applicant.  I recognize the Service's need for stability and uniformity of process, but the prejudice caused to Mr. Palmer by his termination outweighs the prejudice caused to the CSIS.  The Service must bear some responsibility for the faulty advice that the Employees' Association gave to the applicant.  The Employees' Association was created by the CSIS and employees such as Mr. Palmer are referred to it by the Service.  It is imperative that, in such an environment, the CSIS provide adequate labour relations training and a manual to Employees' Association's officials to enable them to properly advise the employees of the Service.

[66]   As indicated earlier, the merits of Mr.  Palmer's contentions were not addressed in any detail at the hearing.  I will therefore not make, and need not make, any finding as to the likelihood of success of the applicant's "supplemental" grievance.  Mr.  Palmer should not find in this decision any indication that he might be successful in the determination of that grievance.  The Service's jurisdictional objection will have to be dealt with and, in this regard, given the state of the jurisprudence, Mr.  Palmer will not have an easy task.

[67]   I therefore conclude that the time limit for referring Mr.  Palmer's grievance (filed with the Board on May 14, 2004) to adjudication should be extended.

[68]   For all of the above reasons, I make the following order:

Order

[69]   The application is granted.  The grievance referred to adjudication by Mr.  Palmer on May  14, 2004, as well as the Service's jurisdictional objection, will be assigned to an adjudicator for determination.

February 1, 2006.

Yvon Tarte,
Chairperson