FPSLREB Decisions

I. Application before the Chairperson

1 Herhald Mark (Mr. Mark or "the applicant"), a member of the EG group, is a meat inspector employed by the Canadian Food Inspection Agency ("the employer") in Fort MacLeod, Alberta.

2 Mr. Mark submitted a request for sick leave for October 8, 18, 19, 20 and 29, 2004. He was advised verbally on December 3, 2004, and in writing on December 22, 2004, that these five days of sick leave were being denied because there was no medical certification to support the leave.  Mr. Mark eventually produced medical certification for his absences of October 8 and 29, 2004.  On February 17, 2005, the employer granted sick leave for those two days and reaffirmed its decision to deny sick leave for the remaining three days, October 18 to 20, 2004. On February 24, 2005, Mr. Mark filed a grievance concerning the denial of sick leave for the three remaining days.

3 The grievance was denied at each level of the grievance process (replies dated May 9 and September 2, 2005, and April 20, 2006, respectively). Mr. Mark was advised at each level that the grievance was untimely because it had been filed outside the 25-day time limit set out in the collective agreement signed between the Canadian Food Agency and the Public Service Alliance of Canada on July 6, 2001.

4 During the course of the grievance process, the employer granted sick leave for October 19, 2004, when Mr. Mark provided a certificate from a massage therapist, along with a doctor's note, both of which the employer accepted as satisfactory. The remaining two days, October 18 and 20, 2004, were not granted and the grievance was referred to adjudication on August 11, 2006. On September 19, 2006, the employer renewed its objection concerning the timeliness of the grievance.

5 On October 13, 2006, Mr. Mark requested an extension of time to reply to the employer's objection and was given until October 20, 2006, to respond.

6 In his submissions dated October 20, 2006, Mr. Mark responded that the grievance was timely because there had been ongoing discussions after December 22, 2004, about the days that the employer had refused to grant as sick leave, including those that are the subject of the grievance. Mr. Mark submits that the employer's final position was not known until February 17, 2005, when it denied in the final instance the granting of sick leave for October 18 to 20, 2004. Consequently, Mr. Mark considers that the grievance was filed within the time limit prescribed by clause 17.09 of the collective agreement and that the objection as to the timeliness of the grievance should be dismissed. In the alternative, the applicant requests, in accordance with paragraph 61(b) of the Public Service Labour Relations Board Regulations ("the Regulations") that the time for filing the grievance at the first level of the grievance process be extended.

7 On November 8, 2006, the parties were informed that the issue of timeliness would be dealt with by way of written submissions.

8 Pursuant to section 45 of the Public Service Labour Relations Act ("the new Act"), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, the Chairperson authorized me, in my capacity as Vice-Chairperson, to exercise any of his powers or to perform any of his functions under paragraph 61(b) of the Regulation to hear and decide any matter relating to the extension of time.

II. Written submissions

A. For the employer

9 The employer submits that, although the applicant was advised at each level of the grievance process that his grievance was untimely, he did not request an extension of the time limit until October 20, 2006.

10 The employer argues that the provisions of the collective agreement should prevail. As time limits contribute to stability in labour relations, they should not be set aside lightly. The employer submits that the onus is on the applicant to demonstrate why he was unable to comply with the collective agreement since he was advised that the grievance was untimely at the very first level of the grievance process. The employer emphasizes that there is no justification for an untimely grievance since the denial of sick leave was communicated to the applicant verbally on December 3, 2004, and in writing on December 22, 2004. Thereafter, the employer consistently advised the applicant that he needed to provide a proper medical certificate to support his sick-leave claim. The employer denies that the applicant's disagreement with its decision and his attempt to have it re-visited constituted any type of mutual dialogue or ongoing discussion, or that it constituted an acquiescence of a waiver of the time limit for filing a grievance.

11 Moreover, the employer submits that in the interest of fairness, labour relations negotiations and collective agreements must be upheld, particularly since, in this case, the employer acted promptly, in good faith, and made its position clear at each level of the grievance process. The employer takes the position that its reply to the applicant's grievance does not and should not constitute acquiescence to the waiver of the time limit for filing a grievance. The employer relies on decisions previously rendered under the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, to substantiate its position that the grievance should be dismissed for want of jurisdiction.

B. For the applicant

12 The applicant responds that, to the contrary, the grievance is timely because the parties were continuously engaged in discussions about the matters giving rise to the grievance. There were regular meetings and there was an exchange of correspondence in an attempt to resolve the issue. The applicant submits that there was a partial resolution of the matter within 10 days of the grievance being filed based on new information that he presented. Therefore, the grievance was filed within the timelines prescribed in the collective agreement as the dispute did not "crystallize" until after discussions had commenced.

13 The applicant suggests that one of the presumptions underlying labour relations is that the parties attempt to clarify disputes and come to an amicable resolution prior to accessing the grievance process. In the instant case, the parties successfully resolved one of the three days in dispute. The applicant states that this type of dialogue is precisely what is encouraged by the new Act and ensures that only those disputes that cannot be resolved are referred to adjudication.

14 The applicant argues that the continuing dialogue and the employer's consideration of additional information provided on February 14, 2005, demonstrates that the parties considered the outstanding sick-leave authorization to be an active matter. The applicant provided the employer with medical evidence that he believed would meet the criteria for sick leave and the employer responded accordingly. A grievance was filed only when the parties had reached an impasse, as conveyed to the applicant in writing on February 17, 2005, making the grievance timely. Consequently, any delay in filing the grievance was the result of mutual and partially successful efforts to resolve the sick-leave issue and the applicant was diligent in pursuing this matter. The applicant argues that his loss is greater than the harm to the employer were this grievance to fail on a question of timeliness. He asks that the employer's objection be dismissed.

III. Reasons

15 Section 17.09 of the collective agreement between the Canadian Food Inspection Agency and the Public Service Alliance of Canada provides a 25-day time limit for the filing of a grievance:

17.09

An employee may present a grievance to the First Level of the procedure in the manner prescribed in clause 17.04 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.

16 The 25-day time limit in clause 17.09 of the collective agreement is the period that has been established by agreement of the employer and Mr. Mark's bargaining agent "… to be a sufficient time period for an employee to reflect, seek advice and decide whether or not to grieve …" (see Wyborn v. Parks Canada Agency, 2001 PSSRB 113, ¶24).

17 This provision of the collective agreement notwithstanding, the Chairperson has discretion under paragraph 61(b) of the Regulations, in the interest of fairness, to relieve a party who failed to meet the time limit at any level of the grievance process. In making a determination to extend that time the following criteria have previously been considered as a useful test of the "fairness" factor:

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

18 The criteria were first stated in Shenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSLRB 1, ¶75, and more recently followed in Richard v. Canada Revenue Agency, 2005 PSLRB  180, and in Vidlak v. Treasury Board (Canadian International Development Agency), 2006 PSLRB 96.  

19 In its response to the employer's objection to the timeliness of the grievance, the applicant argues that, as long as there is ongoing discussion between the parties, the grievance is still "alive" and continues to be timely. The applicant also takes the view that the circumstances of the grievance arose only when the employer put its final position in writing on February 17, 2005.

20 There can be no dispute that the applicant was informed in writing on December 22, 2004, that the employer was denying his request for paid sick leave. The applicant does not acknowledge the fact that he had been told, as early as December 3, 2004, that the employer was not prepared to grant the requested sick leave. Be this as it may, I adopt the employer's written notification of December 22, 2004, as the date at which the applicant first became fully aware of the circumstances giving rise to his grievance.

21 Moreover, the applicant did not accept the employer's decision to deny his request for sick leave, written or otherwise, and sought to have it reviewed. While the applicant's medical certificate produced on February 14, 2005, was eventually considered valid by the employer, I am of the view that this medical information, submitted after the employer's decision, does not alter the fact that the sick leave that is the subject of the grievance had already been denied and that the applicant had been made aware of this, at least as early as December 22, 2004.  This is reflected in the wording of the grievance itself, which is a claim for sick leave with pay for October 18 to 20, 2004.

22 Generally, the action or circumstances that gave rise to a grievance are time specific and cannot be extended by invoking further circumstances beyond what constitutes the employer's original decision. In this case, the 25-day limit to file a grievance started to lapse from the time of the employer's refusal on December 22, 2004, and not from the time when the applicant had amassed what he considered sufficient evidence to file a grievance. Except when the parties agree to an extension as provided by the collective agreement, the time limit to file a grievance is not unilaterally extended by an employee's attempts to convince the employer to reverse or modify its decision. To the extent that an act is a violation of the collective agreement, there is no threshold standard to be met as to the strength of the applicant's knowledge before a grievance can be filed.

23 In this case, the applicant's belief that the employer's refusal constituted a breach of the collective agreement was sufficient to trigger the 25-day limit within which to file a grievance. The interpretation that the applicant must file his grievance at the first opportunity once he suspects a breach of the collective agreement is further reinforced by the wording of the second part of clause 17.09 of the collective agreement. This latter part of the clause states that if the employer's position is not set out verbally or in writing, the countdown starts when the applicant first becomes aware of the action or circumstances giving rise to the grievance.

24 Moreover, there are good labour relations reasons for imposing time limits. First, the grievance and adjudication processes are intended to provide a final and binding method of resolving disputes that arise during the course of the collective agreement. Second, time limits contribute to labour relations stability by providing closure on the employer's business decisions with the consequence of avoiding, for either the bargaining agent or the employer, constant or long-term exposure to workplace incidents.

25 I am of the view that the essence of this grievance is the employer's refusal to grant sick leave, and that the dispute became "crystallized" the first time that the applicant was so informed in writing by the employer. Subsequent negotiations were based on the employer's original decision, a fact reflected by the wording of the grievance:

I grieve that the employer is in violation of Article 38 - SICK LEAVE WITH PAY, of the Collective Agreement as evidenced by the denial to grant me sick leave with pay for October 18 - 19 - 20 - 2004.

[Emphasis added]

26 The discretion to relieve an applicant against a failure to comply with a time limit must, in each case, be exercised in light of the relevant facts and the reasons put forward for not exercising a right in a timely fashion. In the present matter, the applicant did not respond to the employer's objection to the timeliness of his grievance until called upon to respond, as though the objection concerned a mere irregularity. No justification has been advanced as to why the applicant, if he had formed the intention to grieve, did not immediately file a grievance when notified that paid sick leave was being denied for the three days in dispute, rather than waiting for the outcome of subsequent discussions. The applicant did not have to know all the circumstances of the employer's position before filing the grievance.

27 The principle of the continuing grievance, that is, a recurring violation of the collective agreement, is sometimes applied in order to assess whether a grievance is timely. This occurs, for example, when the employer's decision has continuing consequences, such as a denial of a salary increase or overtime at each pay period. However, this is not such a case.  In this matter, the employer made a discrete decision to deny sick leave for a precise three-day period. The fact that one of the three days was later granted does not alter the fact that the employer's decision was fixed in time. Ongoing discussions about the employer's decision cannot be considered a perpetuation of the alleged original violation.  Accordingly, I find that this is not a continuing grievance.

28 I have also examined the provisions of the collective agreement as to whether the time limits for filing a grievance are imperative or not. Clause 17.16 provides that the parties may agree to extend them by mutual agreement:

17.16

The time limits stipulated in this procedure may be extended by mutual agreement between the Employer and the employee and, where appropriate, the Alliance representative.

29 This provision of the collective agreement indicates that the time limits in the collective agreement can be varied, as long as the parties agree. The clause also implies that a grievance is otherwise untimely if there is no agreement on an extension. There is no provision for a unilateral extension of time without the agreement of the other party. In this case, the employer clearly raised the issue of timeliness at each level of the grievance process, yet the applicant did not respond or request that the time limits be extended until after the matter was referred to adjudication, when he was formally summoned to do so.  If the applicant was convinced that the grievance was timely, he should have dealt with the issue promptly during the grievance process rather than defending his position once the matter had been referred to adjudication.

30 In seeking to balance any injustice to the applicant should the application be denied, against the prejudice to the employer should the application be granted, the burden of proof lies with the applicant to satisfy me that this is an appropriate case to extend the time limit.

31 In this case, I cannot find any clear, cogent or compelling reasons that explain the delay of more than 25 days for the filing of the grievance. While there was not an extraordinary delay between the presentation of the grievance at the first level and the lapse of grievance rights under the collective agreement, this in and of itself does not motivate an extension of the time limit without some other compelling reason. I also find that there is no evidence of due diligence on the part of the applicant as there was no apparent intention to grieve until the employer made it clear a second time that it was denying the sick leave for October 18 to 20, 2004. Without persuasive reasons to the contrary, labour relations policy considerations of closure and workplace stability must outweigh the applicant's request for an extension of the 25-day limit to file his grievance in this case.

32 For all of the above reasons, I make the following order:

IV. Order

33 The application for an extension of time to present the grievance is denied.

34 I order the applicant's grievance file (PSLRB File No. 166-32-37357) closed.

April 5, 2007

Michele A. Pineau,
Vice-Chairperson