FPSLREB Decisions

I. Application before the Chairperson

1 Terry Riche (“the applicant”) has applied for an extension of time to refer two grievances to the second level of the individual grievance process, in accordance with paragraph 61(b) of the Public Service Labour Relations Board Regulations (“the Regulations”). Pursuant to section 45 of the Public Service Labour Relations 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 Regulations to hear and decide any matter relating to an extension of time in this matter.

2 The parties filed written submissions, and I have summarized them later in this decision.

II. Background

3 The facts that led to this application for an extension of time are not in dispute.

4 The applicant currently has a number of grievances at different steps of the individual grievance process, including two grievances that have been referred to adjudication. On December 3, 2009, Mr. Riche filed two individual grievances against disciplinary suspensions (a one-day and a two-day suspension). Those two grievances are the subject of this application for an extension of time.

5 For those grievances, the applicant was, at all times, represented by a bargaining agent representative, Alan H. Phillips.

6 The two grievances were heard at the first level of the grievance process on January 29, 2010. Mr. Phillips attended the hearing and made representations on behalf of Mr. Riche. The first-level decision on the grievances was dated February 5, 2010. Mr. Phillips was not provided with a copy of the decision. The decision was sent to and was received by Mr. Riche on either February 5 or February 8, 2010. Mr. Phillips was on sick leave, vacation leave and out of the office on business for a number of days during February. When he contacted the departmental representative, he was advised that the decision had been sent to Mr. Riche on February 5, 2010 and that a copy would be forwarded to him as soon as possible. A copy of the decision was sent to Mr. Phillips on March 4, 2010. On his return to the office on March 9, 2010, Mr. Phillips prepared a transmittal form for Mr. Riche. The transmittal form was signed on March 11, 2010, and was provided to the employer. That was 24 days after the date of the first-level decision and 14 days after the deadline for transmittal to the second level of the grievance process.

7 The deputy head raised the issue of timeliness at the second level of the grievance process.

8 Mr. Riche had also filed an application for an extension of time for other grievances, which was granted in 2009 (see Riche v. Treasury, 2009 PSLRB 157).

9 Mr. Riche has had health-related issues that have been recognized by the deputy head. In 2009 PSLRB 157, the Chairperson stated as follows:

…

[37] In this case, I am of the view that the applicant’s medical condition provides at least a prima facie case for his failure to file his first two grievances within the time limits specified in the collective agreement. The evidence is to the effect that his medical condition might have contributed to his irregular attendance at work and the employer has accepted the evidence to the effect that the applicant suffered from depression and sleep apnoea during the relevant period. I am prepared to accept that the factual situation at the relevant time provides a clear, cogent and compelling reason to explain why the applicant failed to grieve on time.

…

III. Summary of the arguments

A. For the applicant

10 The applicant filed the following submissions:

…

61. The criteria the Board has used in determining whether as extension of time should be granted are;

clear, cogent and compelling reasons for the delay,

length of the delay,

applicant’s due diligence,

balancing the injustice to the applicant against the prejudice to the respondent in granting the extension, and

the chances of success of the grievance.

62. Clear, cogent and compelling reasons for the delay:  

Mr. Riche received the response dated on February 5, 2010, either on the 5th or the 8th. As indicated above … I was absent from the office … Mr. Riche has previously exhibited frustration and confusion with the grievance process and the system of transmittals. He has heavily relied on advice from the Bargaining Agent…

As soon as I was made aware that I had not received a copy of the reply I contacted HR at National Defence and requested one…

…

In Vincent v. Treasury Board (Solicitor General - Correctional Services), PSSRB File No. 166-2-21022 (19910515), … [the adjudicator]found that the griever was not negligent for trusting the union to handle the grievance and allowed the application to transmit a grievance to the next level some 7 1⁄2 months after the deadline.

In Riche v. Treasury Board (Department of National Defence) 2009 PSLRB 157, [the] Chairperson … states at para 37:

In this case, I am of the view that the applicant’s medical condition provides at least a prima facie case for his failure to file his fist two grievances within the time limits specified in the collective agreement. The evidence is to the effect that his medical condition might have contributed to his irregular attendance as work and the employer has accepted the evidence to the effect that the applicant suffered from depression and sleep apnoea during the relevant period. I am prepared to accept the factual situation at the relevant time provides a clear, cogent and compelling reason to explain why the applicant failed to grieve on time.

63. Length of delay:

In Jarry and Antonopoulos v. Treasury Board (Department of Justice) [2009] C.P.S.L.R.B. No. 11, … [t]he grievance was initially filed on January 15, 2007. Their grievance had not been referred to the final level of the grievance procedure within the prescribed time limit… An application to extend the time limits was filed on January 31, 2008, to the Board. The employer filed an objection and the … Chairperson … allowed the application stating, “The length of the delay was not significant.” The delay in [that] … case appears to be one year.

In Vincent v. Treasury Board (Solicitor General - Correctional Services)… a 7 1⁄2 month delay was [found to be] not unreasonable.

In Guittard v. Canada (Canadian Forces, Staff of Non-Public Funds), [2002] C.P.S.S.R.B. No. 12[the] Chairperson … found that the time of five months after termination was not excessive as the employee had relied on advise from two different lawyers that was not appropriate in this jurisdiction and allowed the application.

64. Applicant’s Due Diligence:

Mr. Riche has previously grieved all his discipline as well as filed harassment complaints. At present there is this application before the Board as well as two grievances referred to adjudication … These clearly indicate his intentions to grieve any and all employer sanctions.

65. Balancing the Injustice:

… [I was referred to Jarry and Antonopoulos; Rinke v. Canadian Food Inspection Agency, 2005 PSSRB 23; and Anderson v. Treasury Board (Revenue Canada), PSLRB File No. 149-02-49 (19830708)]

…

In this application, Mr. Riche is requesting to extend the transmittal time for two grievances, a 1 & 2 day suspensions. Three days pay in total. The question begs to be asked, how can this amount of money prejudice the employer? Throughout the period of 2006-2009, Mr. Riche has been financially compromised.

66. Chances of Success of Grievances:

That is an unknown… a 5 day suspension for identical circumstances [was] reversed …

…

[Sic throughout]

[Emphasis in the original]

B. For the deputy head

11 The deputy head filed the following submissions:

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In Schenkman v. Treasury Board (Public Works and Government Services Canada) 2004 PSSRB 1, the Board Member stated at paragraph 77 that “… in a unionized environment, the expectation is that employees are responsible for being aware of their rights.” The Board Member set out five criteria in deciding whether to exercise his or her discretion to grant an extension of time:

• 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 deputy head; and

• the chances of success of the grievance.

Clear, cogent and compelling reasons for the delay

The Bargaining Agent representative … presented clear, cogent and compelling reasons for his not having transmitted the two grievances to the 2^nd level of the grievance procedure; however, as these two grievances deal with disciplinary matters, rather than collective agreement matters, the issue before the Board is are there any clear, cogent and compelling reasons for why Mr. Riche (the Applicant) failed to transmit the two grievances to the 2^nd level of the grievance procedure. Given that these grievances deal with disciplinary matters, Mr. Riche did not require the approval of his Bargaining Agent to transmit them to the 2^nd level.

The Bargaining Agent representative attempted to explain Mr. Riche’s failure to transmit by stating, “Mr. Riche has previously exhibited frustration and confusion with the grievance process and the system of transmittals. He has heavily relied on advice from the Bargaining Agent.” However, in addressing the Applicant’s due diligence, the Bargaining Agent states, “Mr. Riche has previously grieved all his discipline as well as filed harassment complaints’”. This statement strongly suggests that Mr. Riche is very aware of his grievance rights, and therefore should also be aware of his grievance responsibilities.

Mr. Riche had previously filed an Application for Extension of Time… On November 24, 2009, [the] Chairperson … issued her decision (2009 PSLRB 157) allowing the application.

… the Applicant, … , having already been granted an extension of time by the PSLRB, had a responsibility and obligation to ensure that timelines were respected in the future.

Accordingly, … the reason given by the Applicant to explain the delay in transmitting both grievances to the 2^nd level of the grievance procedure are not “clear, cogent and compelling”

The length of the delay

The length of the delay in transmitting the grievances to the 2^nd level of the grievance procedure was fourteen (14) days, thus at first glace not significant.

In her decision … allowing Mr. Riche’s previous Application for Extension of Time, Vice-Chairperson states:

A time limit for filing grievances that is specified as part of a collective agreement between the union and the employer is meant to provide some stability in labour relations. The rationale for a time limit is to prevent the employer from being under perpetual exposure to defend grievances against actions that have long since passed and the union from having to present and argue those grievances.

… in this instance, given that the Applicant has already been granted an extension of time for other grievances, any length of delay is significant. Furthermore, it is both unreasonable and disrespectful to the grievance procedure, to grant another extension of time.

The due diligence of the grievor

The Applicant received the decision … in his previous Application for Extension of Time on November 24, 2009; a mere two (2) months prior to matter at hand.

Mr. Riche received the first level response to his grievances on February 5, 2010. There is no evidence presented by the Bargaining Agent representative that Mr. Riche made any attempt to contact him to have the grievances transmitted to the second level. In fact … it was the Bargaining Agent representative that contacted Mr. Riche when he realized that he had heard nothing from his client.

Accordingly … the Applicant failed to demonstrate due diligence.

Balancing the injustice to the employee against the prejudice to the deputy head

Under this criterion, the [chairperson] … must weigh the injustice to the Applicant in not allowing his grievance(s) to be filed, against the prejudice to the Deputy Head in proceeding. The Deputy Head should be entitled to some certainty in knowing that disputes will be addressed in a timely manner.

The injustice to the Applicant is not significant. The Applicant has other matters that have been referred to adjudication (Board files: 566-02-4051 and 566-02-3880). The Bargaining Agent representative has indicated in his submission that all of Mr. Riche’s grievances related to rigid administrative rules for attendance and punctuality to which he has allegedly been subjected. Therefore, given that all of his grievances are related to the same issue, the Applicant will have the opportunity to be heard by the Board.

Therefore, on balance … the prejudice to the Deputy Head outweighs any injustice to the Applicant.

The chances of success of the grievance

The Employer makes no submission with respect to the chance of success of these grievances.

…

[Sic throughout]

[Emphasis in the original]

C. Applicant’s rebuttal

12 The applicant filed the following submissions in rebuttal:

…

Mr. Riche has relied heavily on the representations of his Bargaining Agent for assistance and I was out of the office for most of the time between the response and the expected date of transmittal.

In … Anderson v. Treasury Board (Revenue Canada)… and Vincent v. Treasury Board (Solicitor General-Correctional Service)… ,both grievors relied on other parties to negotiate a settlement or transmit the grievance. In both cases the Adjudicators allowed the applications for extension.

…

The length of delay in this matter is not unreasonable, fourteen days. Mr. Riche has never shown any disrespect for the grievance procedure, just frustration in the system and the roadblocks that the Employer has put up against him.

…

Yes, Mr. Riche has other files before the Board, but they deal with other matters and not these particular suspensions.

The injustice to the applicant is significant. Three days pay for a person who has lost a lot of money in the past few years, I would suggest is significant. It could mean the difference between making the monthly rent or buying food.

…

The Applicant… would suffer greater prejudice than the deputy head.

…

IV. Reasons

13 The deputy head has admitted that the reasons that Mr. Phillips did not refer the grievances to the next level of the individual grievance process were “clear, cogent and compelling.” The deputy head’s position is that this is irrelevant because Mr. Riche could have referred the grievances to the next level without the assistance of his representative.

14 It was clear to the deputy head that Mr. Riche was represented by Mr. Phillips. Mr. Phillips attended the hearing at the first level of the grievance process. The deputy head provided no explanation for its failure to provide the decision to Mr. Phillips. It is clear that Mr. Phillips acted diligently in processing the grievance once he was aware of the first-level decision. As noted in Vincent v. Treasury Board (Solicitor General — Correctional Services), PSSRB File No. 166-02-21022 (19910515), even though Mr. Riche had experience with grievances, he was “… not negligent in trusting in his union …” and in allowing Mr. Phillips to “… look after his grievance without his intervention.” This is especially so because the length of the delay (14 days) was not significant. In 2009 PSLRB 157, the Chairperson noted that a delay of nine days in referring a grievance to the second level of the grievance process was “… an insignificant delay indeed.” Fourteen days is of the same order of magnitude.

15 The deputy head has not demonstrated that it would suffer any prejudice were the extension of time granted. The fact that similar grievances are already at adjudication demonstrates that there will be little, if any, prejudice to the deputy head. The discipline imposed is part of a course of what appears to be progressive discipline and the injustice to Mr. Riche by not addressing that discipline clearly outweighs any prejudice that the deputy head may face by the granting of the extension of time.

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

V. Order

17 The application for an extension of time is granted.

October 13, 2010.

Ian R. Mackenzie,
Vice-Chairperson