FPSLREB Decisions

Application before the Chairperson

1 This is an application for an extension of time made under paragraph 61(b) of the Public Service Labour Relations Board Regulations (“the Regulations”).

2 On June 2, 2000, the grievor, Simon Cloutier (“the employee”), was suspended for five days as a disciplinary measure. He did not present a grievance contesting the suspension until August 4, 2000, 43 working days later, although the time limit in the collective agreement is 25 working days.

3 The grievance was rejected at all levels of the grievance process. At the second and third levels, the employee was told that his grievance had been presented out of time.

4 A hearing for the grievance was held on various dates between January 23 and November 3, 2006, along with a grievance about three other disciplinary measures and the employee’s dismissal. On January 24, 2006, the second day of the hearing, the employer renewed its objection on the grounds that the grievance that is the subject of this application was presented out of time.

5 At that time, Adjudicator Tessier explained to the employee that he had to apply for an extension of time if he wished to pursue the adjudication of his grievance. The employee made an application by email on January 24, 2006. Because the Public Service Labour Relations Board (“the Board”) does not accept emailed applications, it asked the employee to make his application in writing and send it by mail. His application was received on February 6, 2006.

6 On January 29, 2007, after concluding the hearing that dealt with all the grievances, Adjudicator Tessier rendered a decision in which he ruled that he did not have jurisdiction to decide the grievance given that it was untimely (see Cloutier v. Treasury Board (Department of Citizenship and Immigration), 2007 PSLRB 15).

7 As provided in paragraph 61(b) of the Regulations, the Chairperson of the Board or a vice-chairperson by delegating under section 45 of the Public Service Labour Relations Act (“the Act”), may choose whether to extend the prescribed time. An adjudicator may find only that the time limit was or was not respected or that the employer has waived it.

8 Accordingly, this application was assigned to the undersigned for decision, and I requested that the parties provide their submissions in writing.

Summary of the arguments

9 The employee does not dispute the fact that his grievance was filed after the time allowed in the collective agreement. He contends that he was on sick leave resulting from the disciplinary action and that he presented his grievance on the day he returned to work. Clinical consultation notes are attached to his written submissions. The employee points out that the employer had taken two months to raise the issue of the offence for which the disciplinary measure was imposed and two years to reply to his grievance at the first level of the grievance process. The employee believes, based on the evidence that he has, that there is a good chance that his grievance will be allowed. He argues that there would be serious consequences if the Board refused to hear his grievance, because it relates to one of the progressive disciplinary measures used to justify his dismissal. He contends that the union did not apply for an extension of time and did not advise him to do so. He disputes the employer’s argument that it would have brought the need to submit an application for an extension of time to his attention. He asks that the extension be granted.

10 The employer asserts that the late presentation of the grievance was brought to the employee’s attention at the second and third levels of the grievance process. The employer further argues that the employee waited until the hearing (2006), four years later, to apply for the extension, when he had known since at least 2002 that the employer contended that the grievance had been filed late. The employer submits that the clinical notes are not a medical certificate and that therefore there is no evidence that the employee was unable to present a grievance during the time he was on sick leave. The employer argues that the employee has no one to blame but himself for the delay in presenting the grievance because he had made no complaint against his union on that point.

11 The employer argues that lack of diligence in applying for an extension of time must be regarded as a decision not to apply for such an extension. It adds that the time limits in labour relations matters serve to bring a conclusion to incidents that occur in the workplace and to provide a degree of stability. Time limits should therefore be extended only for serious and compelling reasons. The employer asks that the application be denied.

Reasons

12 The collective agreement provides, among other things, the following:

18.10  An employee may present a grievance to the First (1^st) Level of the procedure in the manner prescribed in clause 18.05 not later than the twenty-fifth (25^th) 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.

13 The 25 days provided for in the collective agreement to present a grievance is a negotiated time limit that has been adopted in the case law as a reasonable time for seeking advice and deciding whether or not to file a grievance (see Wyborn v. Parks Canada Agency, 2001 PSSRB 113). Although paragraph 61(b) of the Regulations allows that time limit to be extended, such applications are allowed sparingly so as not to destabilize the labour relations scheme created by the Act and the agreement between the parties.

14 Accordingly, extensions are granted only in the interest of fairness. In Mark v. Canada Food Inspection Agency, 2007 PSLRB 34, the Board adopted the following criteria from Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, 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;

• balancing the injustice to the employee against the prejudice to the employer in granting an extension; and

• the chance of success of the grievance.

15 In his reply to the employer’s objection, the employee alleges that he was unable to present his grievance because he was on sick leave after the disciplinary action was imposed. He says that he presented his grievance on the day he returned to work and that the clinical consultation notes support his assertion. This evidence of inability to present a grievance is not particularly compelling. First, the notes in question do not identify the status of the health care professional who wrote them. Second, the last date shown in the notes is June 29, 2000, while the time taken to file the grievance extended to August 4, 2000. Even if I accepted the notes as valid, I see no connection between them and the inability to present a grievance within the 25 working days that followed the disciplinary action.

16 The employee then points out that the employer took two months to raise the issue of the offence for which the disciplinary action was imposed and two years to reply to his grievance at the first level of the grievance process. That argument is not particularly compelling, since clause 18.12 of the collective agreement provides that if there is no reply at either the first or second level within 15 days, the employee may proceed to the next level within the next 10 days after the failure to reply, except at the final level, where the time allowed for the employer to reply is 30 days:

18.12  If the Employer does not reply within fifteen (15) days from the date that a grievance is presented at any level, except the final level, the employee may, within the next ten (10) days, submit the grievance at the next higher level of the grievance procedure.

18.13  The Employer shall normally reply to an employee's grievance at the final level of the grievance procedure within thirty (30) days after the grievance is presented at that level.

Therefore, the employee did not have to wait for the employer’s reply to pursue his grievance and refer it to adjudication.

17 The employee believes that because of the evidence he has, there is a good chance that his grievance will be allowed. He argues that there would be very serious consequences if the Board refused to hear his grievance, because it relates to one of the progressive disciplinary measures used to justify his dismissal. The documents introduced in evidence by the employee do not establish, on their face, that the grievance has merit. This means that the chance of the grievance succeeding is doubtful.

18 The employee also submits that the union did not apply for an extension of time and did not advise him to do so. When the employee stood before Adjudicator Tessier, he represented himself, as in this case. I saw no indication of active involvement by the union in this case. Accordingly, that argument is of no relevance.

19 The employee’s final submission is that the employer did not bring to his attention the need to apply for an extension of time. In a letter to the Board dated January 16, 2006, a copy of which the employee received, counsel for the employer stated that the employer intended to object to the adjudicability of the grievance at the beginning of the hearing on January 23, 2006. Counsel added that although the late presentation of the grievance had been raised in the replies to it, the employee had not applied to the Board for an extension of the 25-day time limit.

20 It is not the employer’s duty to tell the employee what steps to take to remedy procedural defects. The employer did its duty by raising the issue of timeliness in its replies to the grievance and by pointing out that the employee did not apply for an extension of time. It was the employee’s responsibility, with that information in hand, to respond as provided in the provisions of the Regulations, which he failed to do until the hearing started. There is no evidence in the record to establish that he was unable to take action to remedy the defect throughout a period of nearly three years, from June 23, 2003 (the first time the issue of timeliness was raised) to February 6, 2006. Lack of familiarity with the procedures is not a valid reason.

21 For these reasons, I find no clear, cogent and compelling reasons for the delay and a delay of nearly three years inexcusable. Because the disciplinary action was taken on June 2, 2000, by waiting until the hearing to request an extension of time the employee failed to demonstrate due diligence, given that clause 18.17 of the collective agreement provides that the time limits stipulated in the grievance process may be extended by consent. Because of the time that has passed and the employee’s failure to demonstrate due diligence, it is my opinion that the prejudice to the employer, should the extension be granted, clearly outweighs any injustice to the employee. Moreover, the chance of the grievance succeeding is doubtful.

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

Order

23 The application for an extension of time is denied.

May 7, 2008.

PSLRB Translation

Michele A. Pineau,
Vice-Chairperson