FPSLREB Decisions

Application before the Chairperson

1 Agnes Walters (“the applicant”) filed a grievance on August 22, 1997, against the decision of her employer in 1995, 1996 and 1997 to deny her the opportunity to alternate her position with another employee whose position was declared redundant. In her grievance, she also alleged that she had been treated in a discriminatory manner. The applicant was granted an Early Retirement Incentive effective August 26, 1997. At the time she filed her grievance, the applicant was represented by the Public Service Alliance of Canada (PSAC or “the bargaining agent”). Her grievance was denied at the third level of the grievance process in December 1999, on the basis that it was not timely. The applicant has stated that the grievance was also denied at the final level. On December 2, 2007, the applicant wrote to the Chairperson of the Public Service Labour Relations Board (PSLRB) and requested an extension of time which the PSLRB received on December 27, 2007.

I am writing you to request that I be granted expanded time limits to file a grievance against Canada Revenue Agency to see my case examined…

Please use your office to assure Canada Revenue Agency accepts my grievance for consideration on Level 1.

2 Canada Revenue Agency (“the employer”) has objected to this request for an extension of time. The PSLRB received written submissions from the employer and from the applicant as well as documents relating to the grievance and a related human rights complaint.

3 Under section 45 of the Public Service Labour Relations Act (“the Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, 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.

4 Through the Director of Registry Operations and Policy of the PSLRB, I requested that the applicant confirm whether her bargaining agent continued to approve of this grievance and to represent her. The applicant wrote to the PSAC requesting representation and copied the letter to the PSLRB. By letter to the Director of Registry Operations and Policy dated April 15, 2008, the PSAC declined to represent the applicant.

Background

5 The applicant alleged in her grievance that management had denied her an opportunity to alternate her position with employees at her group and level who were declared redundant. She alleged that she was treated in an unfair and discriminatory manner. As corrective action, she requested that she be approved as an alternate or be reimbursed as if she had been approved as an alternate. She also requested a written apology from a number of individuals. She filed her grievance on August 22, 1997. The events that she grieved occurred in 1995, 1996 and 1997. The grievance replies at the first and third levels (the only grievance replies on file with the PSLRB) denied her grievance on the basis of timeliness and also addressed the merits of her grievance.

6 The applicant received the third-level reply to her grievance on December 2, 1997. The applicant states that her grievance was denied at the fourth and final level of the grievance process on January 27, 2000. The employer has only provided to the PSLRB grievance responses up to and including the third level.

7 The applicant filed a human rights complaint with the Canadian Human Rights Commission (CHRC), alleging age discrimination, in or around July of 1997. In September 1999, the CHRC initially decided not to deal with her complaint until after she had exhausted the grievance process. The CHRC reopened the file in March 2000 after being informed by the applicant that the grievance process had been exhausted. After conducting an investigation, the CHRC dismissed her complaint on March 21, 2002. The applicant requested a re-examination of the investigation and received a reply from the CHRC on June 17, 2003, confirming its decision. The CHRC concluded that the evidence did not support her allegation of discrimination. The applicant then filed a request under the Privacy Act to obtain further information.

8 The alternation process is described in the CHRC investigation report as “guidelines”. Also included in the information provided by the applicant is a letter from the PSAC to its executive (dated May 1995) referring to the announcement by Treasury Board of guidelines for departments on instituting the alternation process.

9 On May 18, 2006, the applicant wrote to the Minister of Justice requesting that he enquire into her situation. On December 15, 2006, she received a reply from the Minister advising her to visit the PSLRB’s “… Web site for any further information that may be useful for you. …” She contacted the Chairperson of the PSLRB on December 27, 2007, seeking an extension of time.

Submissions

10 The employer objected to the application for an extension of time and asked that it be dismissed without a hearing. The employer’s representative submitted that the applicant had offered no clear, cogent or compelling explanation for the delay. She also argued that the length of the delay meant that documents had been destroyed in accordance with the employer’s retention policies and that memories would be affected. She submitted that the employer would be considerably prejudiced should the applicant be allowed to pursue her grievance.

11 The applicant submitted that “up to 2006 I thought my only option was to pursue this through the Union and Human Rights.” She also stated that the Minister of Justice told her that she could contact the PSLRB. She submitted that she could provide copies of all documentation that she had obtained through a request under the Privacy Act. This would address the employer’s concerns about prejudice.

Reasons

12 The applicant has applied for an extension of time to file a grievance “for consideration on Level 1”, which means that she is seeking an extension of time to file a grievance with CRA. For the reasons set out below, I must dismiss this application.

13 In 1997, the applicant grieved the failure of her employer to allow her to alternate with another employee. After a review of the documentation provided by the applicant, I have concluded that the alternation policy was not part of her collective agreement but was a separate employer policy. In that grievance, she also alleged that the application of the employer policy was discriminatory. Although the grievance does not specify a collective agreement provision related to discrimination, one can assume that she was relying on the no-discrimination clause of her collective agreement. The filing of a collective agreement grievance requires the approval of the bargaining agent. The bargaining agent has declined to represent the applicant and has therefore not approved of that part of her grievance that would allege a breach of the collective agreement. Since the rest of the grievance she wishes to file relates to the application of an employer policy, the support of her bargaining agent is not required. Accordingly, the only portion of the grievance that she wishes to file which properly would be before me is that part of the grievance which contests the application of the employer policy.

14 There is conflicting information on whether her initial grievance was heard at the final level. The applicant states that she received a fourth-level reply on January 27, 2000. The CHRC proceeded with an investigation on the basis that the grievance process had been exhausted. The employer has only provided the PSLRB with grievance replies from the first and third levels. Given the passage of time, it may be difficult to determine with certainty whether the applicant had exhausted the grievance process. The applicant has kept records of her recourse efforts, and it is obviously at the forefront of her mind. The CHRC conducted an investigation on the basis that the grievance process had been exhausted, and the employer does not appear to have objected. On balance, I believe the applicant’s submission that she received the fourth-level reply.

15 The applicant has therefore had access to and utilized the full internal grievance process available to her. Although the employer rejected her grievance on the basis of timeliness at each level, it also addressed the merits of her grievance. The CHRC also conducted a full investigation, and re-opened its investigation of her file. In both instances it determined that her complaint was unfounded. The applicant alleges that there is new information that she received as a result of an access request. After review of this information, I have concluded that the information that she obtained does not change the nature of the grievance she wishes to file. I see no reason to extend time limits simply in order to give her a second opportunity to grieve the same matter.

16 In any event, the applicant has not provided any clear, cogent or compelling reasons for her delay in pursuing this matter. Given the length of time since the events in question it would be highly prejudicial to the employer to allow her to file a grievance. The complete records are no longer available, and the memories of witnesses will have faded.

17 Even if the applicant had been seeking an extension of time to refer her initial grievance to adjudication, the application would be rejected as an adjudicator has no jurisdiction to hear a grievance that is not disciplinary or does not relate to an alleged breach of a collective agreement. As I have already noted, the applicant does not have the necessary approval of her bargaining agent for the portion of her grievance that alleges a breach of the no-discrimination article of her collective agreement.

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

Order

19 The application for an extension of time is dismissed, and the file is closed.

May 7, 2008.

Ian R. Mackenzie,
Vice-Chairperson