FPSLREB Decisions

I. Application before the Chairperson

1 This matter deals with an objection from the Correctional Service of Canada ("the employer") concerning the timeliness of a grievance and a corresponding objection from the Union of Canadian Correctional Officers ("the bargaining agent") that the employer's objection to the grievance's timeliness is itself untimely.

2 Pursuant to section 45 of the Public Service Labour Relations Act ("the new Act"), the Chairperson has 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 Public Service Labour Relations Board Regulations ("the Regulations") to hear and decide any matter relating to extensions of time.

3 I heard this matter at an oral hearing and issued oral reasons after hearing the parties' arguments. The parties filed 10 exhibits, but no oral evidence was presented. The employer's objection was dismissed. The following written reasons constitute the circumstances and context for the oral decision.

II. Summary of the evidence

4 Harry Sidhu is a correctional officer (CX-01) employed at the Pacific Institution and Regional Treatment Centre in Abbotsford, British Columbia.

5 On May 24, 2006, Mr. Sidhu filed a grievance alleging employment discrimination because of his disability and gender, contrary to article 37 of the collective agreement signed on April 2, 2001, between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada-CSN. The employer acknowledged having received his grievance on that date.

6 On May 25,2006, the employer and the bargaining agent agreed to refer the grievance immediately to the third and final level of the grievance procedure, as evidenced by an exchange of emails on that date.

7 The grievance was referred to adjudication by the bargaining agent on August 11, 2006, with an indication on the notice of reference that there had been no employer reply.

8 In response to the requirement under section 96 of the Regulations to file with the Executive Director of the Public Service Labour Relations Board ("the Board") a copy of the decision made in respect of the grievance at each level of the applicable grievance process, the employer transmitted a number of documents concerning the grievance on September 6, 2006, with an acknowledgement that the grievance had not been heard at any level.

9 The employer did issue a reply to the grievance on October 19, 2006, raising the question of the grievance's timeliness, as the alleged facts took place between 2001 and 2004. There is no record of when this response was officially communicated to the grievor or the bargaining agent; however, it appears as part of the Board's record.

10 On November 14, 2006, the employer filed an objection as is provided for in section 95 of the Regulations concerning the grievance's timeliness and an adjudicator's jurisdiction to hear it.

11 On November 23, 2006, the Board requested that the bargaining agent reply to the employer's objection on the grievance's timeliness. The bargaining agent submitted its response on the grievor's behalf on December 5, 2006.

12 At the opening of the hearing, on April 26, 2007, each party presented its position as to which of them should proceed first. The employer took the position that since it had raised the issue of the grievance's timeliness in the first place, it was up to the bargaining agent to argue why the time limit for presenting the grievance should be extended.

13 In response, the bargaining agent argued that it was objecting to the timeliness of the employer's objection and, therefore, the employer had the onus of proving that its objection was in fact timely.

14 After consideration of the parties' submissions and the provisions of paragraph 95(1)(a) of the Regulations about objections regarding the 30-day time limit prescribed in a collective agreement for the presentation of a grievance at a level of the grievance procedure, I decided that the bargaining agent had raised a valid issue about the timeliness of the employer's objection and, consequently, that the employer should proceed first to make its case.

III. Summary of the arguments

A. The employer's opening statement

15 The employer submits that Mr. Sidhu's grievance, filed in 2006, concerns events that took place between 2001 and 2004; that is, almost five years after the alleged first violation. There is no evidence that Mr. Sidhu was unaware of his rights throughout that time. He could have filed a grievance at any time during that period and had several opportunities to have his concerns known, even as late as 2004.

16 Mr. Sidhu chose to file a complaint with the Canadian Human Rights Commission (CHRC) as the former Public Service Staff Relations Board had no jurisdiction over human rights complaints. Therefore, at the time in question, the proper forum to obtain a remedy was before the CHRC.

17 After the enactment of the new Act on April 1, 2005, and the creation of the Board, Mr. Sidhu had a further opportunity to grieve, and chose not to. His reasons for not doing so are neither cogent nor compelling.

18 To hear the grievance at this time would seriously prejudice the employer and be against sound labour policy.

19 The employer's objection should be upheld.

B. The bargaining agent's opening statement

20 Mr. Sidhu's grievance was referred to the Board in 2006 after the CHRC exercised its discretion not to deal with the complaint until the grievor had exhausted the grievance or review procedure otherwise available.

21 The first and determining issue to be argued in this hearing is the question of the timeliness of the employer's objection to the grievance's timeliness. In this respect, the bargaining agent argues that the employer's objection is untimely because it was filed more than 30 days after the notice of reference to adjudication. In the alternative, if the Board accepts that the employer's objection is timely, the bargaining agent argues that it should extend the time limit for the filing of the grievance in light of the provisions of the new Act.

22 The question of the grievance's timeliness should be based on what a reasonable worker would do and not on what a lawyer would do in the same circumstances. In 2004, the grievor's recourse was under the Canadian Human Rights Act. With the enactment of the new Act, the recourse is now within the jurisdiction of the Board. The grievance therefore, should be allowed to go forward on its merits.

C. The bargaining agent's argument on the grievor's behalf  as to why the employer's objection to an adjudicator's jurisdiction is untimely 

                      

23 The grievance was referred to adjudication on August 11, 2006, for a grievance presented on May 24, 2006. The grievance was referred to adjudication through the use of a Form 20, which is provided for in the Regulations. The CHRC filed a Notice of Intention of the Canadian Human Rights Commission (Form 25). Both forms are a requirement under the new Act.

24 The employer conducted itself in a manner consistent with the new Act. For example, Kenneth Graham's correspondence with the Board on the employer's behalf refers to the new Act and the employer sent copies of its documents to all concerned, as newly required by the Regulations.

25 Section 95 of the Regulations requires the employer to file its objection within 30 days. The employer's objection, filed on November 14, 2006, therefore, is untimely because it is outside the period specified in the Regulations. There can be no confusion on that point.

26 The Board's letter to the parties on November 23, 2006, merely requested that the bargaining agent reply to the employer's objection to the timeliness issue, which is exactly what the bargaining agent did.

27 The onus was on the employer to comply with the prescribed 30 days in which to raise an objection. There is no onus on the bargaining agent to raise anything else.

28 The bargaining agent's allegedly new argument that the employer's objection is untimely does not change the nature of this hearing. (See Brown and Beatty, Canadian Labour Arbitration. 3rd ed. at 22:00.)

29 It is up to the Board to decide whether it has jurisdiction within the context of the new Act and the Regulations, even if the bargaining agent did not raise the issue before today's hearing.

30 The bargaining agent also relies on the doctrine of waiver (Brown and Beatty, at 2:3130):

…

By not objecting to a failure to comply with mandatory time-limits until the grievance comes on for hearing, the party who should have raised the matter earlier will be held to have waived non-compliance, and any objection to arbitrability will not be sustained.

…

31 In this case, the employer did not raise the objection at the first opportunity, nor did it ask for an extension, as provided for in clause 20.17 of the collective agreement.

32 It is not in the spirit of the legislation that an employer be allowed to raise its objection in a response issued after the grievance was referred to adjudication and almost two months after it had refused to participate in mediation on September 18, 2006.

33 The Regulations are mandatory and the employer's failure to object in a timely manner constitutes a blatant flaw that should be considered as a waiver of its right to object.

34 The bargaining agent relies on the Board's decision in Lafrance v. Treasury Board (Statistics Canada), 2006 PSLRB 56, in which the Board decided that an objection regarding the time limit for the presentation of a grievance must be raised within 30 days of the employer's receipt of the grievance's notice of reference to adjudication. In Lafrance, the employer raised the timeliness issue regarding the grievor's second grievance outside the 30-day purview. The Board dismissed the employer's objection and declared the grievance to be timely.

35 Since the employer in this case did not raise its objection in a timely manner, its objection should be dismissed and the Board should declare that it has jurisdiction to hear the matter.

D. The employer's response to the grievor's objection to the timeliness of its objection

                                                                                     

36 The grievor requested that the grievance be referred to the final level, which the employer accepted. The grievance's timeliness was raised in the final level grievance reply as required by the Regulations.

37 In this case, there was some confusion as to which legislation should apply: the new Act or its predecessor, the Public Service Staff Relations Act, since the facts took place under the old legislation but the grievance was filed after the new Act came into force. The employer relied on the provisions of the regulations which were applicable under the former Act, which regulations did not provide a time limit for filing any objections concerning the grievance's timeliness.

38 The bargaining agent's objection to the timeliness of the employer's objection was not brought up before the hearing. There is no mention of such an objection in the bargaining agent's December 5, 2006, response; it merely states its arguments as to the merits of the employer's objection.

39 If the bargaining agent is saying that the employer waived its objection, then it is estopped from raising this issue now because it did not do so in its response to the Board on December 5, 2006. In fact, the bargaining agent's objection is out of time and it has waived its own right to object.

40 The employer's objection to timeliness was raised as required in the final level response to the grievance, and its objection to the Board's jurisdiction was filed within 30 days of that response as required under the new Act.

41 On receipt of the employer's objection, the bargaining agent had plenty of time to object to its timeliness. As it has not done so until now, it has waived the very objection it now raises.

E. The bargaining agent's reply to the employer's response

42 The mandatory procedure is for a party to raise an initial objection within 30 days, but there is nothing in the Regulations concerning an objection to an objection. The bargaining agent requested a hearing concerning the objection as a further opportunity to raise its arguments. There is no requirement that the bargaining agent communicate all of its arguments in advance of the hearing. The bargaining agent asked for a formal hearing because it had other arguments to raise. The employer's argument that the bargaining agent is estopped from raising all of its arguments at the hearing is untenable. In its reply to the Board's request for a response to the employer's objection to the grievance's timeliness, the bargaining agent did just that. It had no obligation to raise any other argument.

43 It is not because the employer has not heard an argument before the hearing that the bargaining agent is estopped from making it. The law concerning issues of timeliness cannot be ignored. The employer simply has no excuses for the delay.

44 The Board could have decided the timeliness issue based on the parties written representations. However, it decided to hold a hearing and to hear submissions. Therefore, the bargaining agent is entitled to bring forth all of its submissions for the Board's consideration.

IV. Reasons

45 After hearing the parties' arguments, I decided as follows.

46 Contrary to what was argued by the employer, there can be no confusion about the legislation that applies. The referral of the grievance to adjudication was made under the provisions of the new Act and its Regulations as evidenced by the following documents:

1. Exhibit 1 - The notice of reference to adjudication is on Form 20 and identifies the new Act as the applicable legislation.
2. Exhibit 2 - The cover page of the employer's documents transmitted to the Board states that they are being filed "in accordance with the Public Service Labour Relations Board Regulations and Rules of Procedure." The filing of these documents is a requirement under the new Act.
3. Exhibit 3 - Mr. Graham's letter to the Board, dated November 14, 2006, raising the employer's objection about the timeliness of the grievance also refers to the new Act and the Regulations as the applicable legislation.
4. Exhibit 8 - The Board's letter to the parties, dated August 25, 2006, acknowledging that the notice of reference to adjudication identifies the Regulations as the applicable legislation.
5. Exhibit 10 - The Board's letter to the parties, dated November 23, 2006, states that in accordance with section 225 of the new Act, a grievance may not be heard until questions of timeliness have been addressed.

47 Subsection 95(1) of the Regulations states that the employer has 30 days to raise any timeliness objection after a grievance has been referred to adjudication.

48 In this case, the employer's response to the grievance regarding the grievance's timeliness was first raised in its reply at the final level, issued more than two months after the notice of reference was filed. The employer's objection with respect to the grievance's timeliness under section 95 of the Regulations was filed more than three months after that reference. One way or the other, the employer raised its objection well beyond the 30 days provided for in the Regulations.

49 Section 61 of the Regulations allows the Board to extend the time for filing a reply or document; however, the employer did not request such an extension.

50 I see no obligation under the Regulations for the opposing party (in this case the bargaining agent) to raise an issue with the timeliness of the applicant's objection as to the grievance's timeliness within any specific period. I do find, in fact, that the bargaining agent opened the door to raising its objection to the timeliness of the employer's objection in its response of December 5, 2006 (Exhibit 5), when it stated the following:

…

[at paragraph 3]: The first point is that in principle, the PSSRB ought to allow employees to submit evidence on the employer's [sic] objection; that is if you don't overrule it prima facie.

…

[at paragraph 6]: We ask in conclusion that the employer's objection be overruled in short order. Alternatively, we ask for a formal hearing.

…

51 The bargaining agent did not have to set out all its arguments in writing before the hearing.  It was sufficient that it expressly requested a hearing to deal with the employer's objection in the event the Board was not prepared to summarily dismiss it. Contrary to what the employer argues, the bargaining agent did indeed in its letter of December 5, 2006, put the employer on notice that it intended to contest the timeliness of its objection.  Under these circumstances, there was never any reliance on the bargaining agent's position to the employer's detriment.  I find, therefore, that the bargaining agent is not estopped from raising its argument at the hearing that the employer's objection to the grievance's timeliness is itself untimely. 

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

V. Order

53 a)I find that the employer's objection is dismissed.

b)I order the Director, Registry Operations, to contact the parties to set a date to resume the hearing on the merits.

July 19, 2007

Michele A. Pineau,
Vice-Chairperson