FPSLREB Decisions

I. Application before the Chairperson

1 Jean-Michel Salain (“the applicant”) filed a grievance on October 23, 2008, against the end of his term employment with the Canada Revenue Agency (“the respondent” or “the CRA”). The respondent objected to the referral to adjudication of this grievance on the basis that it was not timely. Mr. Salain submitted that the grievance was timely and, in the alternative, requested an extension of time to file a grievance.

2 Pursuant to section 45 of the Public Service Labour Relations Act (PSLRA), 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 to hear and decide any matter relating to extensions of time in this case.

II. Procedural matters

3 The respondent also raised objections to the jurisdiction of an adjudicator to hear the merits of the grievance. A hearing on those objections was deferred pending the determination of the timeliness issue and the application for an extension of time. At the hearing, the respondent asked that I also rule on the jurisdiction of an adjudicator to hear the merits of the grievance (the end of term employment). Since the applicant was not given notice that this objection would be addressed at the hearing, I have declined to rule on it. In addition, I was not appointed as an adjudicator to hear the grievance.

4 At the hearing, Mr. Salain raised the additional allegations for his grievance that the respondent had discriminated against him on the basis of disability and that it had failed to accommodate him. The respondent objected to the expansion of the grounds of the grievance. I reserved my decision on this objection, which I will address in the reasons for this decision.

5 During the evidentiary part of the hearing and after Mr. Salain presented his case I made it clear to him that this was his opportunity to put all the facts before me, including all the documents that he wished to rely on. When making his submissions, Mr. Salain attempted to introduce a document that he considered relevant. I ruled that he could not introduce that document as the evidentiary part of the hearing was completed.

III. Summary of the evidence

6 Mr. Salain was employed in the computer science group (CS) as a CS-01 on a fixed term, commencing February 1, 2005 (Exhibit E-2). He was employed at the CRA Service Desk in Mississauga, Ontario, as an Information Technology (IT) Technical Analyst. The end of his term was to be January 20, 2006. The letter of offer provided to Mr. Salain (Exhibit E-2) stated the following (common to all such letters of offer): “Nothing in this letter should be construed as an offer of permanent employment, nor should you anticipate continuous employment … as a result of this offer.” On December 30, 2005 he received an extension of his term employment to March 31, 2007 (Exhibit E-3). On February 9, 2007, he received an extension to March 31, 2008 (Exhibit E-4).

7 Carol Webster is Assistant Director, Information Technology, Regional Services CRA. She was the manager responsible for staffing and had signed the term extensions. In cross-examination, she testified that she had concerns about the applicant’s absenteeism in 2007. In re-examination, she stated that she regarded his absenteeism as a performance issue, not misconduct.

8 In 2008, Mr. Salain asked his representative from the Professional Institute of the Public Service of Canada (“the bargaining agent”) to assist him in obtaining a temporary lateral move from the Service Desk (“the home organization”) to another location (“the host organization”). He accepted a lateral move to Hamilton, Ontario (Exhibit E-5). Initially, the lateral move was until June 27, 2008, which was extended to September 26, 2008 (Exhibit E-6). In the letter extending the temporary lateral move (Exhibit E-7), the following was stated: “At the end of the stated period of temporary lateral move, you will return to your current position . . . within the home organization.”

9 Ms. Webster signed the temporary lateral move letter on behalf of the home organization (Exhibit E-7). She testified that the letter was a template and that managers were “not allowed” to change templates to reflect the particular circumstances of an employee. Linda Campbell is Assistant Director, Information Technology, in Zone 2, at the CRA. She signed the temporary lateral move letter on behalf of the host organization.

10 Ms. Campbell testified that she could not keep Mr. Salain at the Hamilton location past September 26, 2008 as she had no vacant positions there. She had a vacant position in Fort Erie, Ontario. She testified that she had discussions about Mr. Salain’s situation with his bargaining agent representative.

11 On September 5, 2008, Ms. Campbell offered Mr. Salain a temporary lateral move to Fort Erie. This lateral move was to be accompanied by a three-month term extension (until January 2, 2009). Mr. Salain asked for the weekend to consider it. On September 8, 2008, Mr. Salain declined the lateral move. He stated that the two-hour commute each way from his home was not practical. Ms. Campbell testified that she remembered that Mr. Salain’s concern about the transfer was the commuting.

12 Ms. Campbell wrote an email to Mr. Salain’s bargaining agent representative on September 9, 2008 (Exhibit E-9) and advised him that Mr. Salain was unable to accept the position in Fort Erie. She stated in the email that he would, therefore, complete his term on September 26, 2008.

13 Mr. Salain testified that he was hoping that the respondent would reconsider its decision not to extend his term. He was also involved in discussions with his bargaining agent representative in the period from September 8 to the end of his term on September 26, 2008. Ms. Webster testified that she remembered having discussions with the bargaining agent representative but could not confirm the dates of those conversations.

14 Mr. Salain testified that he was told by management that there would be no more extensions of his term and that the last extension was “final.” It was not clear from the evidence when this was conveyed to him.

15 Ms. Webster and Ms. Campbell testified that Mr. Salain never raised allegations of bad faith before filing his grievance. They were not aware of any misconduct on the part of Mr. Salain. Ms. Webster testified that she had had no intention of disciplining him.

16 After the end of his employment, Mr. Salain contacted a number of government agencies at the provincial level before contacting the Public Service Labour Relation Board (PSLRB) to find out what he could do. He testified that someone at the PSLRB told him about filing a grievance.

17 Mr. Salain grieved on October 22, 2008 (received by the respondent on October 23, 2008). The grievance reads as follows:

I grieve the termination of my employment. The Employer failed to return me to my home organization upon conclusion of a temporary lateral move. They refused to extend my term contract unless I would agree to work a final term in Fort Erie, a location far from my home and my home organization. Based on comments by my home Manager, the Employer’s actions were clearly intended to be disciplinary in nature. In the alternative, the termination of my employment was disguised discipline and was in bad faith.

As corrective action, Mr. Salain requested that he be reinstated to his home organization (or to another suitable work location) on a determinate or indeterminate basis. In addition, he requested compensation for lost wages and benefits.

18 The collective agreement was not entered as an exhibit. There is no dispute between the parties that the time limit for filing a grievance is 25 business days after the date on which the employee becomes aware of the action giving rise to the grievance.

19 On November 5, 2008, the respondent wrote to Mr. Salain, informing him that the grievance was not receivable because he was no longer an employee of the CRA when it was submitted. It also wrote that the grievance was presented outside the time limits specified in the collective agreement.

20 The respondent decided to the grievance at the third and at the final levels of the grievance process. In the third-level decision (June 2, 2009), the respondent raised the timeliness of the grievance (it also responded to the merits of the grievance). In the final-level decision (August 26, 2009), the respondent also raised the issue of timeliness, as well as again responding to the merits of the grievance.

21 On August 21, 2009, Mr. Salain complained of discrimination against the CRA to the Canadian Human Rights Commission (CHRC). The CHRC summarized his complaint as follows (Exhibit G-1): “The complainant alleges that he has been discriminated against on the basis of his disability, through his termination.”

22 The CHRC stated that it would not accept the applicant’s complaint at that time, since he had recourse under the PSLRA. It also stated that if, after pursuing all available recourse under the PSLRA, he believed that his allegations of discrimination were not addressed, he could contact the CHRC to file a complaint.

23 Mr. Salain referred his grievance to adjudication on October 19, 2009. He referred the grievance under paragraph 209(1)(b) of the PSLRA, alleging that the respondent’s action was “… disciplinary action resulting in termination, demotion, suspension or financial penalty.”

24 On February 28, 2010, Mr. Salain sent an email to Ms. Campbell (Exhibit E-10), writing as follows:

…

I need to confirm the date on which I signed my final decision to refuse the Fort Erie 3 months contract back in September 2008. I think it is September 9 but I hope that it is later.

Looking back I now know that my union did not properly advise me on what was the obvious thing to do and so I am looking at all angles with regards to the timing of my grievance. It is only the Public Staff Labour Relations Board that advised me to do one after I contacted them on the advice of a friend!

…

IV. Summary of the arguments

25 The parties made initial written submissions on the issue of timeliness, and   Mr. Salain provided a written summary of his arguments at the hearing. I have included a summary of those submissions as well as of the oral submissions made at the hearing.

A. For the respondent

26 The respondent submitted that the grievance was clearly untimely. The event being grieved was the extension of the term at Fort Erie, which was on either September 5 or 8, 2008. The “hope” that the applicant had of a renewed offer from the respondent after September 8 does not change the date on which he was aware of the respondent’s intention. There was no evidence of further discussions after September 9, 2008.

27 The respondent submitted that the relevant criteria for granting an extension of time are as follows (as set out in Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92, at para 44):

…

(a) clear, cogent and compelling reasons for the delay;

(b) the length of the delay;

(c) the due diligence of the applicant;

(d) balancing the injustice to the applicant against the prejudice to the respondent in granting an extension; and

(e) the chances of success of the grievance.

Each criterion is weighed on the basis of the factual context of each case. In some instances, one criterion or more may not be relevant or weight may be given to only one or two of them. The respondent submitted that, in this case, the most weight should be applied to the last criterion — the chances of success of the grievance.

28 The respondent also submitted that extending a time limit should be the exception and not the rule and that it should be done only after a “… cautious and rigorous assessment of the circumstance …” (Grouchy, at paragraph 46).

29 The respondent stated that the grievance was not within the jurisdiction of an adjudicator because it did not fall under paragraph 209(1)(b) of the PSLRA. The respondent’s decision not to renew a term contract was not disciplinary and did not result in a termination or financial penalty. I was referred to Savic v. Canadian Food Inspection Agency, 2001 PSSRB 104; Zhou v. National Research Council of Canada,2008 PSLRB 51; Pieters v. Treasury Board (Federal Court of Canada), 2001 PSSRB 100 (upheld in 2004 FC 342); and Wong v. Deputy Head (Canadian Security Intelligence Service), 2010 PSLRB 18. The grievance must be properly referred before an adjudicator can take jurisdiction over it: Brown v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 127. The Canada Revenue Agency Act, S.C. 1999, c. 17, also gives the respondent sole authority over staffing. Mr. Salain is seeking, as one remedy, reinstatement in a position at the CRA. The respondent believes that this is clearly not within the jurisdiction of an adjudicator, as it relates to staffing.

30 The respondent submitted that this grievance was not about discipline. There was no allegation of misconduct evident in the testimony that would have attracted a disciplinary response. The respondent did not contemplate any disciplinary response. The concern expressed about absences was a performance issue and not a disciplinary issue. Even if there was some evidence of discipline, there was no termination, demotion or financial penalty suffered by the applicant as required by paragraph 209(1)(b) of the PSLRA. The applicant’s term of employment ended; he was not terminated.

31 In addition, according to the respondent, Mr. Salain’s allegations at the hearing are not supported by the wording of his grievance, and accepting his changes would amount to an amendment of his grievance, contrary to Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.).

B. For the applicant

32 The applicant submitted that there were clear and compelling reasons for the delay. Negotiations took place after September 9, 2008 between the respondent and his bargaining agent. At the end of his term employment, he had “no more hope.” It was realistic for him to expect to hear back from the respondent after its discussions with his bargaining agent. As long as there was hope for a resolution, filing a grievance did not seem appropriate.

33 The applicant submitted that the length of the delay was not excessive. The delay had occurred in good faith. He had relied on the expertise of his bargaining agent. He had made diligent efforts to determine his rights. He had always intended to grieve his termination on the basis of bad faith and disguised discipline.

34 The applicant stated that the injustice to him outweighed the prejudice to the respondent. He had limited income as a result of the actions of the respondent, and the prejudice to the respondent was minimal.

35 The applicant submitted that the respondent had been very careful to avoid the perception of discipline but that its actions had still been disciplinary. The applicant submitted that he would have more evidence were the extension of time granted.

36 The applicant stated that he had been an employee at the CRA for four years and that the CRA had an operational need for employees. He had expected a renewal of his term. Making the renewal of his term impossible rendered the end of his employment an unnatural termination.

37 The applicant submitted that his grievance had a good chance of success, which he would be able to prove at a later date, once he was better prepared for a hearing.

38 The applicant submitted that any statutory limits to jurisdiction should be superseded by the “law of the land.”

39 I was referred to Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 59; and Palmer v. Canadian Security Intelligence Service, 2006 PSLRB 9.

C. Respondent’s rebuttal

40 The respondent submitted that the two cases relied on by the applicant did not deal with term employees. In Thompson, the Chairperson explicitly stated that he would not deal with the chance of success of the grievance.

41 The respondent submitted that the onus was on the applicant to demonstrate that he meets the criteria for an extension. He had to meet that onus at this hearing and not at one held later.

V. Reasons

42 Mr. Salain is grieving the failure of the respondent to renew his term employment. The evidence shows that he became aware that his term employment would not be renewed on or about September 5, 2008, when he was offered a three-month extension of his term by way of a temporary lateral move to Fort Erie. At that point, the time limit for filing a grievance started. He filed his grievance just over 6 days after the 25-day limit. Accordingly, the grievance is untimely.

43 The following five criteria have been recognized by the Chairperson as appropriate for determining whether to exercise his or her discretion to extend time limits:

• 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 respondent in granting an extension; and

• the chance of success of the grievance.

The respondent made submissions only on the final criterion: the chance of success of the grievance. However, I must still assess the other criteria.

44 Time limits are meant to be respected by the parties and should be extended in exceptional only circumstances. Those circumstances always depend on the facts of each case.

45 Mr. Salain maintains that he had a clear and compelling reason for the delay. The respondent made no submissions on the reason or reasons for the delay. Mr. Salain’s reason is that he was not aware of his right to grieve until he contacted the PSLRB. However, Mr. Salain was in contact with his bargaining agent before September 5, 2008 and again afterward. At that time, Mr. Salain was exploring what his bargaining agent could do for him. There was little evidence of any discussions that Mr. Salain had with his bargaining agent. However, it is clear that he had access to representation and that he should have asked about his right to grieve. Unlike in Palmer, there was no evidence that Mr. Salain had received erroneous advice from his bargaining agent. Another of Mr. Salain’s reasons was that he was hoping that his situation would be resolved before the end of his term. This is not a compelling reason for the delay. Discussions to resolve issues do not justify the untimely filing of grievances. Once filed, a grievance can always be held in abeyance pending the outcome of discussions between the parties. I find Mr. Salain’s reasons for his failure to file a timely grievance neither cogent nor compelling.

46 I agree that the length of the delay is not excessive.

47 The due diligence of the applicant has not been demonstrated. On one hand, he did provide evidence that he followed up with a number of government agencies, including, eventually, the PSLRB. On the other hand, he was clearly aware that he was a unionized employee and that he had a bargaining agent. In fact, he had used the representational services of his bargaining agent. Had he acted diligently and raised his concerns with his bargaining agent, it could have advised him of his rights under the collective agreement. I do not find that the applicant acted diligently.

48  The respondent would suffer no prejudice were an extension granted. Therefore, I conclude that any injustice to the applicant would outweigh any prejudice to the respondent.

49 The chance of success of the grievance has traditionally not been a significant factor in the assessment of applications for extensions of time. That is usually because a significant amount of evidence on the merits is required to assess success. In this case, the issue of the success of the grievance rests on the scope of the jurisdiction of an adjudicator. There is a danger that relying on the criterion of success of the grievance will be just another way of dismissing the grievance on the basis of the jurisdictional objection of the respondent. As noted, this hearing relates solely to the extension of time and not to the other jurisdictional objection raised in the grievance file.

50 The jurisdiction of an adjudicator over grievances relating to an end of a term is limited. In Zhou, the adjudicator noted that the jurisprudence of the PSLRB and the Federal Court has established “… quite clearly that the non-renewal of a term appointment does not constitute a termination of employment” (at paragraph 108). In Pieters, the adjudicator stated that the employer’s motivation for not renewing a term contract was irrelevant to the determination of the adjudicator’s jurisdiction (at paragraph 46). In Zhou, the adjudicator explicitly did not decide whether he had jurisdiction if a decision not to appoint a person is made in bad faith. In Zhou, there was no evidence to support a finding of bad faith. It is important to note that in Zhou the issue of the jurisdiction over the non-renewal of a term employment was fully before the adjudicator, unlike this application.

51 I find the criterion of chance of success of the grievance to be a problematic one. How is it possible for the Chairperson to determine the likelihood of success without clear evidence and full submissions? The criterion of chance of success arises from a decision of the Federal Court of Appeal (Frève v. Canada (Attorney General), 2001 FCA 98). In the case, the court concluded as follows without any elaboration:

…

[4] There is nothing in the record to indicate that the deputy chairperson took irrelevant facts into account. On the contrary, she considered applicable factors, namely whether the grievance had a serious chance of succeeding and the reasons given by the plaintiff to justify his delay.

[5] It is clear from the reasons for the decision that she was not persuaded either by the chances of success of the grievance or the reasons given by the plaintiff to justify his delay.

…

52 In the decision of the deputy chairperson reviewed by the court (Frève v. Treasury Board (Agriculture and Agri-Food Canada), Board files Nos. 149-02-217 and 166-02-28643 (19991006)), it is clear that the matter being grieved related to a grievance that had already been decided at adjudication. The deputy chairperson concluded that the matter being grieved should have been argued before the adjudicator that heard the other grievance: “[t]he parties, the issues in dispute and the redress sought were the same …” (at page 6). As I wrote in Schenkman v. Treasury Board (Public works and Government Services Canada), 2004 PSSRB 1, on the chance of success criterion (at paragraph 83):

[83] … There is some risk in accepting this statement as a broad principle. It is difficult to assess whether a grievance has a “serious” chance of succeeding without hearing all the evidence. A better characterization of this factor would be that the grievance has “no chance” of succeeding. If, on its face, the grievance is totally without merit, then this may be a factor to consider…

53 In Frève the matter being grieved had already been addressed or could have been addressed by an adjudicator at an earlier hearing. This is an example of a grievance with “no chance” of succeeding. In the application before me, I cannot say that the grievance is totally without merit. Accordingly, I give no weight to this criterion.

54 In assessing the criteria for granting an extension of time, I conclude that the applicant has not shown clear, cogent or compelling reasons for the delay and has not demonstrated due diligence. An extension of time is therefore not warranted.

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

VI. Order

56 I declare that the grievance is untimely.

57 The application for an extension of time is dismissed.

58 PSLRB File No. 566-34-3218 is ordered closed.

November 4, 2010

Ian R. Mackenzie,
Vice-Chairperson