FPSLREB Decisions

I. Grievance referred to adjudication

1 Gerald White (“the grievor”) was employed with the Royal Canadian Mounted Police (RCMP or ''the employer'') in St. John's, Newfoundland as a Temporary Civilian Employee (TCE). His employment was terminated on March 14, 2003. He filed a grievance on September 12, 2006, and referred the grievance to adjudication on November 2, 2006. The employer has objected to the jurisdiction of an adjudicator to hear this grievance on the basis that Mr. White is not an employee under the Public Service Staff Relations Act. In the alternative, the employer also submitted that the grievance is untimely. Mr. White has requested an extension of time to file a grievance.

2 The Chairperson of the Public Service Labour Relations Board ("the PSLRB") ordered that both the issue of jurisdiction and the application for an extension of time be dealt with by written representations. The full submissions of the parties are on file with the PSLRB. I have summarized the submissions in this decision.

3 On April 1, 2005, the Public Service Labour Relations Act (PSLRA), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 45 of the PSLRA, 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 Public Service Labour Relations Board Regulations to hear and decide any matter relating to the extension of time. Pursuant to section 64 of the Public Service Modernization Act, this reference to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (PSSRA), in the event that I grant the application for an extension of time to file the grievance.

II. Summary of the evidence

4 As noted above, this hearing was conducted through written representations. Mr. White filed a sworn affidavit and a number of documents were submitted that were not disputed. I have also summarized the relevant allegations of Mr. White that relate to the merits of his grievance, solely for the purpose of providing some necessary context. I have not made any findings on the merits of his grievance.

5 Mr. White was employed by the RCMP "B" Division Operational Communications Centre ("the OCC") as a telecoms operator from August 1997 to March 2003. Mr. White signed an offer of employment on an annual basis with the final one dated February 6, 2003. Mr. White's last contract was from April 1, 2002 to March 31, 2003. He was employed as a Temporary Civilian Employee under subsection 10(2) of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 ("the RCMP Act"). Section 10 of the RCMP Act reads as follows:

10. (1) Subject to subsection (2), the civilian employees that are necessary for carrying out the functions and duties of the Force shall be appointed or employed under the Public Service Employment Act.

(2) The Commissioner may employ such number of temporary civilian employees at such remuneration and on such other terms and conditions as are prescribed by the Treasury Board, and may at any time dismiss or discharge any such employee.

6 His letter of offer contained the following note:

…I accept this offer and agree to be employed by the RCMP, as a Temporary Civilian Employee under Section 10, sub-section 2 of the RCMP Act …I acknowledge that my employment may be revoked by my employer at any time or the requirement of my services may be for a shorter period. I further acknowledge that, should my term of employment be terminated prior to the agreed termination date, I shall not be entitled to any compensation other than that specified in the Temporary Civilian Employee Regulations.

7 His letter of offer also indicated that he was on an "as and when required status," which meant that he had no predetermined weekly hours of work and no predetermined periods of employment. He was also not eligible to receive employer-approved benefits.

8 Mr. White raised issues with his supervisor about the reassignment of shifts in November 2002. From December 2002 to February 2003, Mr. White noted that he was assigned 19 hours of work, whereas two newly hired TCEs were assigned 238 and 267 hours, respectively, during the same period.

9 On February 18, 2003, Mr. White was advised that RCMP management had sent an email to his internal RCMP account requesting a hearing test and a psychological assessment. The email required a response within one week. Mr. White advised the shift supervisor that he did not have access to his internal RCMP email account outside the workplace and that he would address the issue during his next shift. Mr. White was not scheduled to work during the seven-day period following the issuance of the email, nor was he subsequently called to work during that period.

10 On March 3, 2003, he replied to the email, requesting an extension of time to arrange for his hearing test and psychological assessment. During the next 48 hours, Mr. White had his hearing tested and made an appointment with RCMP Health Services to have his psychological assessment.

11 On March 14, 2003, Mr. White received a termination letter. He was told that his employment was being terminated due to his failure to comply with the request to have a hearing test and psychological assessment. The termination letter also advised him that his contract would not be renewed when it expired (on March 31, 2003).

12 In March 2003, Mr. White wrote to the RCMP asking for a review of the decision to terminate his employment. In April 2003, Mr. White received a letter from the RCMP, declining to overturn the decision.

13 In May 2003, Mr. White wrote to the Human Rights Commission regarding the termination of his employment, and he received a reply advising him that it did not have jurisdiction to address his complaints.

14 In June 2003, Mr. White wrote to Human Resources and Skills Development Canada (HRSDC) to lodge a complaint under the Canada Labour Code. The HRSDC advised him that it did not have jurisdiction to address his complaints and suggested that he refer his complaints to the Public Service Commission (PSC).

15 In August 2003, Mr. White wrote to the Commission for Public Complaints Against the RCMP, complaining about the termination of his employment and asking that his complaints "be advanced to the next step in the process." Mr. White was advised by that Commission that it did not have jurisdiction to review RCMP administrative and management matters.

16 In September 2003, Mr. White contacted the PSC and was advised that it did not have jurisdiction to address his complaints. The PSC suggested that he refer his complaints to the Canada Industrial Relations Board (CIRB) or to the Public Service Staff Relations Board ("the PSSRB").

17 Mr. White consulted a lawyer in October of 2003. In a follow-up meeting with his lawyer in late November, 2003, he was advised to contact the PSSRB.

18 On December 1, 2003, Mr. White wrote to the PSSRB explaining his complaints and asking whether it would be an appropriate forum in which to have his grievance adjudicated. The following day, he was advised by a PSSRB registry officer that "it would appear from the information provided that the matters you describe do not fall within the jurisdiction of the Public Service Staff Relations Board."

19 In December 2003, Mr. White submitted an ''Application for Information'' to the RCMP, seeking documents related to the termination of his employment. In March 2004, Mr. White wrote to the RCMP requesting an update on the status of his application. The RCMP replied that the information would be forthcoming. In June 2004, Mr. White wrote to the RCMP again, requesting an update on the status of his application. The RCMP again replied that the information would be forthcoming.

20 In June 2004, Mr. White was advised by the CIRB that it did not have jurisdiction to address his complaints and suggested that he refer his complaints to the HRSDC.

21 On September 24, 2004, Mr. White wrote to RCMP Human Resources and asked that it conduct a review of the termination of his employment. On November 1, 2004, Mr. White was advised that Superintendent Robert Hurman had been assigned to complete a formal review of Mr. White's termination.

22 On March 1, 2005, Superintendent Hurman wrote a memorandum to Assistant Commissioner W.G. Lynch, Commanding Officer of "B" Division, outlining his findings and recommendations. He recommended that Mr. White be reinstated, that a fair and equitable system for allocating shifts be established at the OCC, and that the letter of termination be removed from Mr. White's personnel file. This document was not provided to the grievor at that time. In March or June 2005, Mr. White was advised by the RCMP that Superintendent Hurman's recommendations would not be implemented. (Mr. White's affidavit states that this letter was received in March 2005, but the attached exhibit is dated June 16, 2005.)

23 In April 2005, Mr. White wrote to the RCMP, requesting a copy of the investigation report. The RCMP replied that Mr. White should refer his request to the Access to Information Office. In May 2005, Mr. White wrote to the Access to Information Office, requesting a copy of the report.

24 Commencing in July 2005, Mr. White received numerous replies to his inquiries on the status of his request from the Access to Information Office, each one advising him that it had been running late with filing, but that the information he had requested would be forthcoming.

25 In July 2005, Mr. White again wrote to the HRSDC regarding the termination of his employment. Mr. White received a reply from the HRSDC, questioning the RCMP's rationale for disallowing Mr. White's use of the grievance procedure contained in the RCMP Act and advising him that the department required more information to determine the proper venue for his grievance.

26 On February 21, 2006, Mr. White filed an application in the Supreme Court of Newfoundland and Labrador, Trial Division, for a court order to compel the RCMP to release the investigation report within seven days. In March 2006, Mr. White received a copy of the investigation report from the RCMP, portions of which had been redacted.

27 In April 2006, Mr. White retained legal counsel. His counsel wrote to the PSLRB on August 9, 2006, contesting the statement of the registry officer that the PSLRB did not have jurisdiction. Counsel asked that the PSLRB accept jurisdiction. On August 28, 2006, the PSLRB stated that since no grievance had been presented at the final level of the grievance process, as required by subsection 92(1) of the PSSRA, Mr. White could not refer the matter to adjudication until that requirement was met. The letter also noted that since there was no grievance referred to adjudication it was too early to decide the issue of jurisdiction.

28 Mr. White filed a grievance on or about September 12, 2006. The RCMP wrote to the grievor on October 16, 2006, stating that he had not been appointed to the Public Service as defined in the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSEA) and, as such, was not entitled to pursue a grievance under the PSLRA.

III.  Summary of the arguments

29 I have summarized the written submissions of the parties below. The full submissions are on file.

A. For the employer

30 Counsel for the employer submitted that an employee hired as a TCE under subsection 10(2) of the RCMP Act is not a federal public service employee as defined in the PSSRA, and cannot present a grievance under the PSSRA.

31 Counsel for the employer argued, in the alternative, that the grievance was brought in an untimely manner. The grievance was presented some three-and-a-half years after the grievor's termination and there is no basis for granting an extension of time.

32 The PSSRA expressly restricts those individuals who may be considered employees and by corollary, those who may present grievances to adjudication under section 92. Section 2 of the PSSRA states: "'employee' means a person employed in the Public Service . . . ." Section 2 also states: "'Public Service' means the several positions in or under any department or other portion of the public service of Canada specified in Schedule I."

33 The former PSEA established how one becomes employed in the Public Service and section 2 of the PSEA stated that "Public Service" has the same meaning as in the Public Service Staff Relations Act.

34 It is established that the PSSRA was drafted in pari materia with the PSEA and the Financial Administration Act. (See: Canada (Attorney General) v. P.S.A.C., [1991] 1 S.C.R. 614 ["Econosult"] at para 9 and 23). Section 8 of the PSEA provided that the PSC had the exclusive right to make appointments to the Public Service.

35 Mr. White was hired as a TCE under section 10 of the RCMP Act, which reads as follows:

10. (1) Subject to subsection (2), the civilian employees that are necessary for carrying out the functions and duties of the Force shall be appointed or employed under the Public Service Employment Act.

(2) The Commissioner may employ such number of temporary civilian employees at such remuneration and on such other terms and conditions as are prescribed by the Treasury Board, and may at any time dismiss or discharge any such employee.

36 Section 10 of the RCMP Act clearly distinguishes between employees who are public servants and those who are not. Subsection 10(2) of the RCMP Act specifically grants the Commissioner the authority to hire and terminate TCEs, thus excluding TCEs from the PSC's authority under section 8 of the former PSEA.

37 It is also worth noting that in the note provision of Mr. White's contract as a TCE, there is a clear acknowledgement that his employment could be revoked at any time or the requirement of his services might be for a shorter time. There is a further acknowledgment that should his employment be terminated, he would not be entitled to any compensation other than that specified in the "Temporary Civilian Employee Regulations".

38 Considering that Mr. White was not appointed by the PSC, he was not a person employed in the Public Service within the meaning of either the PSSRA or the PSEA. Thus, he did not meet the definition of employee and is not entitled to file a grievance under section 92 of the PSSRA.

39 Strictly in the alternative, should the PSLRB decide that Mr. White was an employee for the purposes of the PSSRA, his grievance is untimely and the Chairperson of the PSLRB should not grant an extension.

40 The jurisprudence of the former PSSRB, the precursor of the present PSLRB, is long established in matters that involve a determination as to whether or not the time limits for filing a grievance should be extended. These principles developed by the PSSRB are still applicable.

41 The Chairperson has the discretion to extend time limits but only for good reason. To do otherwise would render time limits contained in collective agreements and the Public Service Labour Relations Board Regulations quite meaningless. The onus is on the applicant to provide valid reasons to support an extension.

42 Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, provided an analysis of the case law up to that time and identified the following basic criteria for determining whether to exercise the discretion to extend time limits:

…

• 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 an extension; and
• the chance of success of the grievance.

…

43 The employer does not see any clear, cogent and compelling reasons for the delay in this case. The delay in grieving was three-and-a-half years (42 months). This is an excessively long delay. Mr. White could have enquired about his rights and filed a grievance when he was terminated in 2003. It was his responsibility to seek and utilized the redress mechanism available under the PSSRA if he felt aggrieved. He simply chose not to file a grievance. Mr. White made a conscious decision not to grieve within the prescribed time limit or, at least, not to challenge his termination. I was referred to Wyborn v. Parks Canada Agency, 2001 PSSRB 113.

44 With respect to the prejudice to the employer, the length of time may have a significant impact on the employer's ability to defend itself, although it is difficult at this stage to assess the prejudice. In any event, the issue of prejudice to either party is but one of the factors that must be weighed by the PSLRB in determining whether it will exercise its discretion to extend the time limits to permit the grievor to file a grievance. In Stubbe v. Canada (Treasury Board), [1994] F.C.J. No. 508 (F.C.A.) (QL), the Federal Court of Appeal confirmed that "[t]he Board was not, in that circumstance, required to weigh the prejudice that might follow upon the granting or refusal of an extension of the time to grieve …"

45 With respect to the chance of success of the grievance, and besides the factual reasons for his termination, it is important to note that nothing indicates that Mr. White was assured that his contract would be renewed. The employer did not have any obligation to renew Mr. White's contract. Therefore, regardless of the termination per se, the PSLRB would not have jurisdiction to reinstate Mr. White in his position beyond March 31, 2003, which is the date of the end of his contract and coincides with the date of his termination. I was referred to Laird v. Treasury Board (Employment and Immigration), PSSRB File No. 166-02-19981 (19901207), and Dansereau v. Canada (National Film Board), [1979] 1 F.C. 100.

B. For the grievor

46 Counsel for Mr. White submits that he is an employee as defined in section 2 of the PSSRA and, as such, he is entitled to refer his grievance to the PSLRB for adjudication. Mr. White has diligently pursued his grievance since the termination of his employment and submits that there are clear, cogent and compelling reasons as to why he was delayed in referring his grievance to the PSLRB.

47 Mr. White was employed as a TCE pursuant to subsection 10(2) of the RCMP Act. Section 10 reads as follows:

10. (1) Subject to subsection (2), the civilian employees that are necessary for carrying out the functions and duties of the Force shall be appointed or employed under the Public Service Employment Act.

(2) The Commissioner may employ such number of temporary civilian employees at such remuneration and on such other terms and conditions as are prescribed by the Treasury Board, and may at any time dismiss or discharge any such employee.

48 Subsection 10(2) of the RCMP Act has the effect of authorizing the Commissioner to employ and to dismiss or discharge TCEs. It does not permit the Commissioner to occupy the role of employer in relation to the TCE throughout the TCE's employment. Subsection 10(2) merely permits the circumvention of the PSEA for the hiring and discharging of a TCE. In all other respects the TCE's employer is Her Majesty in right of Canada, represented by the Treasury Board.

49 Mr. White was a federal public servant and an employee as defined in section 2 of the PSSRA. The PSSRA expressly restricts those individuals who may be considered employees and by corollary, those who may refer grievances to adjudication under section 92. Section 2 of the PSSRA defines "'employee' [as] a person employed in the Public Service … ," but excludes from the definition:

(e) a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that Force under terms and conditions substantially the same as those of a member thereof,

50 Section 2 of the PSSRA defines "'Public Service' [as] the several positions in or under any department or other portion of the public service of Canada specified in Schedule I." Schedule I, Part I of the PSSRA lists "[d]epartments and other portions of the public service of Canada in respect of which Her Majesty as represented by the Treasury Board is the employer," which includes the RCMP. Schedule I, Part II of the PSSRA lists "[p]ortions of the public service of Canada that are separate employers," which does not include the RCMP. In the executive branch of the federal government there is only one employer, who is Her Majesty in right of Canada. As a general rule, Her Majesty does not exercise her functions as employer either by herself or through the Governor in Council. Instead, she delegates the exercise either to the Treasury Board, when a department or portion of the public service specified in Schedule I, Part I of the PSSRA is concerned, or to a separate employer, when a portion of the public service specified in Schedule I, Part II of the PSSRA is concerned (see Gingras v. Canada, [1994] 2 F.C. 734 (F.C.A.), at para 25).

51 Parliament has adopted an objective, simple and easily verifiable test to determine those persons in respect of whom Her Majesty will be represented as the employer by the Treasury Board and those in respect of whom she will be represented as the employer by a separate employer. The RCMP, and not merely its civilian employees, is listed in Schedule I, Part I of the PSSRA among the departments and other portions of the public service of Canada for which Her Majesty, represented by the Treasury Board, is the employer.

52 The definition of employee in section 2 of the PSSRA excludes RCMP members, special constables and persons employed by the Force "under terms and conditions substantially the same as those of a member…" Mr. White submits that had Parliament intended to exclude all RCMP employees from the application of the PSSRA, it would have listed the RCMP in Schedule I, Part II. This also could have been accomplished through specific language to exclude the operation of the PSSRA in the RCMP Act with respect to TCEs.

53 In Cowalchuk v. Treasury Board (RCMP), PSSRB File No. 166-02-26780 (19960621), the PSSRB held that the definition of employee in section 2 of the PSSRA excluded civilian employees who were appointed as members of the Force under section 7 of the RCMP Act. The grievor in that case was employed pursuant to an employment contract in which he recognized the authority of the RCMP Commissioner to discharge him. The grievor had also taken an Oath of Office, in which he stated that he would faithfully, diligently and impartially execute and perform the duties required of him as a member of the RCMP. The Treasury Board argued that under the definition of employee in the PSSRA, only civilian employees of the Force could benefit from its provisions. The adjudicator held:

…

Pursuant to section 92 of the PSSRA only an employee may refer a grievance to adjudication. Parliament has seen fit to exclude from the definition of employee under the PSSRA persons who, like Mr. Cowalchuk, are commonly referred to as civilian members of the RCMP.

…

54 Mr. White took no oath to execute and perform duties as a member of the RCMP. He therefore should not be excluded from pursuing his grievance under the PSSRA.

55 With respect to timeliness, in Schenkman, the PSSRB identified the following basic factors to be considered in determining whether to exercise its discretion to extend time limits:

…

• 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 an extension;and
• the chance of success of the grievance.

…

56 There were clear, cogent and compelling reasons for his delay in referring his grievance to the PSLRB. Upon his termination, Mr. White was not informed of the proper procedure or forum in which to grieve his termination. Regardless, Mr. White continuously and diligently pursued his grievance, though misdirected, even by the PSSRB, as to the proper forum for its hearing.

57 A large portion of the delay in his presenting his grievance is attributable to the delay in receiving a copy of the investigation report, which should not prejudice his ability to have his grievance finally adjudicated.

58 Mr. White diligently pursued his grievance throughout the delay and, specifically, sought to exhaust all possible avenues of administrative procedure for redress.

59 It would be highly prejudicial not to extend time for him to have his grievance adjudicated by the PSLRB as he will be left without a potential remedy, whereas there would not be any prejudice against the employer. People, documents and records detailing the circumstances surrounding his termination are available to allow both sides to address the appropriateness of the employer's decision.

60 There is a high likelihood of his grievance being successful at adjudication. As the facts will indicate, Mr. White was dealt with in a manner contrary to established RCMP administrative policies.

IV. Reasons

61 In reviewing the submissions of the parties I have come to the determination that the application for an extension of time to file a grievance should be denied. Accordingly, I do not need to come to any conclusion on whether the grievance is adjudicable.

62 Mr. White was advised of the termination of his employment with the RCMP in March 2003. Mr. White did not file a grievance against his termination until August 2006. After filing his grievance, the RCMP advised him that it was its position that Mr. White could not file a grievance, because, as a temporary civilian employee of the RCMP he was not subject to the PSSRA. The grievor has argued that the PSSRA did apply. Given my conclusion below on the timeliness of the reference to adjudication, I do not need to come to a conclusion on this jurisdictional question.

63 The five factors considered by adjudicators in assessing whether to extend the time limits for a referral to adjudication are as follows (see Schenkman):

• Clear, cogent and compelling reasons for the delay;
• Length of the delay;
• Diligence of the grievor;
• Prejudice to the employer balanced against the injustice to the grievor; and
• Chance of success of the grievance.

64 Although the lack of information provided to Mr. White and his efforts at finding out what recourse was available might be considered a clear, cogent and compelling reason for some delay in filing a grievance, it does not justify the length of the delay in this case.

65 The RCMP ended Mr. White's employment on March 14, 2003. After a number of efforts to find out the proper recourse, Mr. White was advised by the PSC in September 2003 that he should refer his complaints to the CIRB or the PSSRB. Mr. White consulted a lawyer in October 2003. After a further meeting with his counsel in late November, he was advised to contact the PSSRB. In December 2003, he wrote to the PSSRB seeking information on whether he could file a grievance and if he could, how he could go about extending the time limits for filing a grievance. Mr. White was advised in an e-mail from a registry officer of the PSSRB that it appeared from the information provided that the matter did not fall within the jurisdiction of the PSSRB. Mr. White did not pursue this matter further with the PSSRB until 2006. As the grievor was subsequently advised by the PSLRB in 2006, the proper course for the grievor would have been to file a grievance with the employer prior to any determination by the PSLRB on both timeliness and jurisdiction.

66 Even if Mr. White had received this advice from the PSSRB in December 2003, his grievance would have been untimely. In some circumstances there can be some allowance given to a grievor for not knowing the proper procedure for recourse. However, in this case, the approximately eight months from the time of his termination to his initial contact with the PSSRB is lengthy, and there is no clear, cogent or compelling reason for the delay. Mr. White was given information from the PSC in September 2003 that should have directed him to the PSSRB. Yet he waited over two months to contact the PSSRB. He consulted a lawyer in October 2003 and had an opportunity to obtain legal advice, but did not contact the PSSRB until December 1, 2003.

67 Although Mr. White did not grieve his termination, he was successful in getting the RCMP to conduct an internal investigation. The recommendation of the investigator to reinstate Mr. White was not accepted by the RCMP. Mr. White received this confirmation of the decision to terminate his employment in either March or June 2005. Mr. White did not grieve this decision of the RCMP immediately. In his submissions, his counsel states that a large portion of the delay in filing a grievance was attributable to the delay in receiving a copy of the investigation report. Although the delay in obtaining the investigation report was unfortunate, this is not relevant to this application. Mr. White is not grieving the investigation report - he is grieving the decision to terminate his employment. It is not uncommon for a grievor to receive a copy of an investigation report relating to discipline much after filing a grievance, including days before or sometimes at the commencement of the adjudication hearing. The failure of the RCMP to provide an investigation report does not serve as an excuse for not filing a grievance in a timely manner and is not a clear cogent or compelling reason.

68 I find that the reasons for the delay in filing a grievance are not clear, cogent or compelling, given the length of the delay. Therefore, I do not need to assess the other factors.

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

V.  Order

70 The application for an extension of time to file a grievance is denied.

71 The reference to adjudication is dismissed.

August 16, 2007.

Ian R. Mackenzie,
Vice-Chairperson and adjudicator