FPSLREB Decisions

Applications before the Chairperson

1 The four applicants, John Seale, Ed Turner, John Maas and Stephen McCullough, correctional officers at the Regional Treatment Centre in Kingston, Ontario, were disciplined in May 2009. After they were disciplined, they grieved the failure of the Deputy Head to observe the disciplinary process. After filing the grievances (and after the expiry of the time limit for filing a grievance), they realized that their grievances did not specifically challenge the discipline that had been imposed on them. Their bargaining agent sought an extension of time from the respondent to file such grievances, but the respondent did not accept the request. The applicants now seek an extension of time to file grievances against the discipline imposed. The respondent submits that it is redundant, because the initial grievances did encompass the disciplinary action.

2 Pursuant to section 45 of the Public Service Labour Relations 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.

Background

3 On May 29, 2009, the applicants filed grievances relating to the imposition of discipline. The discipline was in the form of a financial penalty equivalent to a number of days of pay (which varied from one grievor to another). All the grievances had the following wording: “I grieve the employer’s violation of the rules of natural justice and of its duty to act fairly when it disciplined me … ” The corrective action requested by each grievor was as follows:

I request that the discipline be declared void ab initio. I request immediate retraction of the disciplinary measure, reimbursement of all sums due, and all other rights that I have under the Collective Agreement. As well as all real, moral or exemplary damages, to be applied retroactively with legal interest without prejudice to other acquired rights.   

4 The parties agreed to skip the first level of the grievance process. In the second-level reply to the grievances, management’s representative stated that the reply was in response to the grievance “… in which [each applicant] grieved the disciplinary action …” against him. The reply also stated that the discipline imposed was warranted. In the final-level reply (November 24, 2009), the acting assistant commissioner of Human Resources Management stated that “… after taking into consideration any mitigating and aggravating factors, I concur that due to the severity of your misconduct, the financial penalty … was warranted.”

5 The grievances were referred to adjudication on September 4, 2009. The PSLRB file numbers are 566-02-3099, 566-02-3100, 566-02-3101 and 566-02-3102.

6 On September 14, 2009, the bargaining agent concluded that the grievances did not include the disciplinary actions that were imposed on the grievors. The bargaining agent requested an extension of time to file further grievances. The respondent refused. The four applicants filed new grievances with the employer on different dates between October 5 and 8, 2009. The grievances used the following identical language: “I grieve the discipline imposed on me … ” As corrective action, the applicants requested that the discipline “be quashed” and requested reimbursement for all money and benefits lost, as well as “… all other rights that I have under the collective agreement.”  

Summary of the arguments

7 I determined that the application could be addressed through written submissions. The full submissions are on file with the Public Service Labour Relations Board (PSLRB).

8 The applicants submitted that their representative realized after the expiry of the relevant time limits that their initial grievances related to the disciplinary process and not to the disciplinary actions. The applicants stated that they filed additional grievances because they “… felt very strongly about contesting the discipline.” They requested that the Chairperson of the PSLRB exercise his discretion under the Regulations and grant an extension of time to submit the grievance.

9 The respondent submitted as follows that the extension of time application related to matters that had already been referred to adjudication:

…

… These present applications for extension of time to submit a second and therefore redundant grievance on the same issue should therefore be denied.

Although the grievors apparently believe that their initial grievances would not encompass the issue of the disciplinary measure that was imposed, the Employer can confirm that this is not the case. It is clear from the grievance responses issued at the second and final levels of the grievance procedure … that the issue of the disciplinary measure was properly raised during the grievance hearing, and was addressed by management in its responses.

… the Employer acknowledges that the grievors did raise the issue of discipline during the grievance process.

…

10 The applicants submitted that the respondent’s position rested on its contention that the first and the second sets of grievances were identical. In the applicants’ view, the grievances are not identical, since the initial grievances are related to the process leading to discipline and the second grievances are related to the discipline imposed. The applicants also noted that the respondent confirmed that the disciplinary measures were raised during the grievance process. The applicants stated the following:

…

… Since the Employer also considers the original processgrievances to have encompassed the scope of the second disciplinary grievances, it follows that granting the grievors an extension of timeframes to submit these grievances would cause no prejudice to the Employer. Granting such an extension would, however, serve the interest of fairness to the grievors by allowing them access to unfettered third party review of the appropriateness of the disciplinary measures imposed by the Employer…

11 The applicants submitted that, since the two sets of grievances are “intimately related,” any concerns about redundancies could be best addressed by consolidating all the grievances and scheduling them for one hearing.    

Reasons

12 The applicants and the respondent cannot agree on whether the disciplinary actions against the applicants are included in the original grievances. The respondent insists that the disciplinary actions are included and has responded to the grievances on that basis. The applicants insist that the initial grievances do not include the disciplinary actions but are only about the disciplinary process.

13 As noted as follows by the Federal Court of Appeal in Shneidman v. Canada (Attorney General), 2007 FCA 192, to refer a grievance to adjudication, a grievor must have given his or her employer notice of the specific nature of the grievance throughout the internal grievance process:

…

[27]    Where the grievance on its face is sufficiently detailed, the employer will have notice of the nature of the employee’s grievance at all levels. However, where, as here, it is not clear on the face of the grievance what grounds of unlawfulness will be relied upon by the employee, the employee must provide further specification at each stage of the internal grievance process as to the exact nature of her complaint if she intends to refer the matter to adjudication.

…

14 It is clear that from the grievance replies by the respondent as well as its submissions in this application, the Deputy Head has had sufficient notice of the “exact nature” of the original grievances filed. It would not be open to the Deputy Head at the adjudication of these grievances to contend that it did not have notice that the disciplinary actions were being grieved as well as the disciplinary process.    

15 In my view, the parties have been approaching the issue from the wrong perspective. This is, in essence, a request to amend the original grievances to include — perhaps for greater certainty — the disciplinary actions imposed on the grievors. The grievors want to grieve the disciplinary actions, which the respondent maintains has already been done through the original grievances. In fact, the respondent replied to the grievances as if the disciplinary actions were part of the original grievances. The response is an implicit recognition that the original grievances were amended through the grievance process. It appears from the submissions that the grievors and their bargaining agent are not convinced. Instead of framing their concerns as a request to amend the original grievances, the applicants have decided to submit additional grievances relating to the same subject matter.

16 Amending the original grievances is more efficient than extending the time limit for filing four additional grievances. In light of the Deputy Head’s position that the disciplinary actions are included in the original grievances, there can be no dispute about amending the grievances. Accordingly, I will dismiss the applications for an extension of time and order the amendment of the initial grievances to include the disciplinary actions. I should note that the order amending the grievances is only for greater certainty. Absent an amendment, the disciplinary actions would still be properly before an adjudicator at a hearing of the original grievances.

17 The details of the grievance are amended to include “the discipline imposed” on each grievor. The corrective action requested in the original grievance encompasses the corrective action requested in the subsequent grievances and does not require amendment.

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

Order

19 The applications for extensions of time are dismissed.

20 The grievances in PSLRB files 566-02-3099, 566-02-3100, 566-02-3101 and 566-02-3102 are amended to include “the discipline imposed” on each grievor. 

February 5, 2010.

Ian R. Mackenzie,
Vice-Chairperson