FPSLREB Decisions

Complaint before the Board

1 On September 16, 2008, Agnes Rose Walters (“the complainant”) filed a complaint under section 190 of the Public Service Labour Relations Act (“the Act”) against her bargaining agent, the Public Service Alliance of Canada (“the respondent”). On September 26, 2008, the complainant filed a second complaint under section 190 of the Act. Considering that the complainant attached the same letter to both complaints explaining the acts and omissions on which she based her complaints, I will consider the two complaints as one, filed on September 16, 2008. In part 3 of the complaint form, the complainant indicated that her complaint was filed pursuant to paragraphs 190(1)(a), (c), (e) and (g) of the Act.

2 The complainant was an employee of the former Department of National Revenue in St. John’s, Newfoundland, and her position was classified at the CR-03 group and level. During the staffing reduction that took place in the 1990s, the complainant asked that the alternation process be applied to her. The process was provided in the Workforce Adjustment Appendix of the Program and Administration Services Collective Agreement, which covered the complainant. Through the alternation process, the complainant wished to alternate into another position at the same group and level, in replacement of another employee.

3 The complainant’s request that the alternation process apply to her was denied. She filed a grievance in August 1997. The grievance was found untimely at each level of the grievance procedure. Shortly after filing the grievance, the complainant accepted an Early Retirement Incentive and left the Public Service. In 2002, the complainant wished to refer her grievance to adjudication. The respondent refused.

4 In December 2007, the complainant filed an application with the Board to extend the deadline to have her grievance heard at adjudication. The Board sought the respondent’s approval since the matter concerned the collective agreement. On April 4, 2008, the respondent expressed its concerns to the complainant about reopening the matter 10 years after the fact and refused to support the application. As a result, the complainant filed this complaint. On April 15, 2008, the respondent wrote to the Board and confirmed its decision not to represent the complainant in that matter. The Board, in Walters v. Canada Revenue Agency, 2008 PSLRB 30, dismissed the complainant’s application to extend the deadline.

5 In a written submission sent on October 23, 2008, the respondent objected to the jurisdiction of the Board to hear the complaint and argued that the complaint was not filed within the mandatory 90-day time limit prescribed by subsection 190(2) of the Act. On November 6, 2008, the complainant sent her written submission arguing that the Board had jurisdiction and that the complaint was timely. I have decided to rule on the objection raised by the respondent based on those submissions.

Summary of the arguments

6 The respondent submits that the complaint is untimely and that it should be dismissed on that basis alone. The complaint form indicates that, on April 4, 2008, the complainant learned about the matter giving rise to the complaint.

7 The respondent referred me to Panula v. Canada Revenue Agency and Bannon, 2008 PSLRB 4. In that decision, the Board dismissed the complaint because it had been filed more than 90 days after the date on which the complainant knew of the act, omission or matter giving rise to the complaint.

8 In her submission, the complainant does not address the respondent’s arguments regarding the timeliness of the complaint. The complainant does not explain why she waited more than 90 days after the date on which she learned of the act, omission or matter giving rise to the complaint to file the complaint.

Reasons

9 Subsection 190(2) of the Act prescribes that a complaint under subsection 190(1) must be filed within 90 days:

     190.(2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

10 In Panula, the Board concluded that the 90-day time limit prescribed by subsection 190(2) of the Act is mandatory. Furthermore, no other provision of the Act gives the Board jurisdiction to extend that time limit. I must therefore determine when the complainant knew or ought to have known of the circumstances giving rise to her complaint and whether she filed her complaint within 90 days of that date.

11 In her complaint and in her written submission, the complainant refers to different incidents, some that occurred in 1997 and some in 2002. Obviously, those incidents are clearly outside the 90-day time limit mentioned in subsection 190(2) of the Act. The complainant also refers to the respondent’s refusal on April 4, 2008, to support her in the application she made to the Board in December 2007, to obtain an extension of time for her 1997 grievance. The Board received the first complaint on September 16, 2008. That is 165 days after the complainant knew of the respondent’s decision which gave rise to the complaint.

12 Considering that the complainant filed her complaint outside the 90-day time limit, I accept the objection filed by the respondent that the complaint is untimely. Consequently, I must dismiss the complaint.

13 For all of the above reasons, the Board makes the following order:

Order

14 The complaint is dismissed.

December 18, 2008

Renaud Paquet,
Board Member