FPSLREB Decisions

I. Application before the Chairperson

1  On November 16, 2009, the Public Service Alliance of Canada (“the bargaining agent”) applied to the Chairperson of the Public Service Labour Relations Board (“the Board”), on behalf of André Lagacé (“the applicant”), for an extension of the time set out in the collective agreement to file a grievance. The applicable collective agreement is between the Treasury Board and the bargaining agent for the Program and Administrative Services Group; expiry date June 20, 2007 (“the collective agreement”).

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. Section 61 and paragraph 61(b) of the Regulations read as follows:

61. Despite anything in this Part, the time prescribed by this Part or provided for in a grievance procedure contained in a collective agreement for the doing of any act, the presentation of a grievance at any level of the grievance process, the referral of a grievance to adjudication or the providing or filing of any notice, reply or document may be extended, either before or after the expiry of that time,

(a) by agreement between the parties; or

(b) in the interest of fairness, on the application of a party, by the Chairperson.

3 Given the nature of the information in this decision, and in an effort to respect the reputation of the applicant’s family, I have provided only minimal details about the respondent’s position. The name of his spouse and her employment details will not be mentioned.

4 The applicant worked for the federal government for 26 years. He held a position in the administrative services group with the Immigration and Refugee Board (IRB, “the respondent” or “the employer”). On January 21, 2008, the employer informed the applicant in writing that his position had been declared surplus and that he had 120 days to exercise one of the following three options:

[Translation]

Option A: Twelve-month surplus priority period in which to secure a reasonable job offer.

Option B: Transition support measure (TSM): a cash payment based on your years of service in the public service.

Option C: Education allowance: a cash payment equal to the TSM plus an amount of not more than $8000 for reimbursement of receipted expenses for tuition, costs of books and mandatory equipment.

5 On March 18, 2008, the applicant informed the employer in writing that he chose Option C and that he would resign his position on March 31, 2008. Then, on October 31, 2008, seven months after his departure, the applicant filed a grievance, alleging that the employer had taken advantage of his mental illness to force him to make decisions to his disadvantage, had refused to accommodate him when he was an employee, had discriminated against him, and had contravened several Treasury Board policies or directives. Among the remedies sought, the applicant requested that the employer reinstate him in the position that he held on March 31, 2008 and that it pay him lost pay and benefits since that date. He also asked that the employer pay him $20 000 for moral damages suffered and $20 000 for the deliberate discrimination that he experienced. The applicant informed the Canadian Human Rights Commission (CHRC) that he was raising a matter in his grievance related to the application or interpretation of the Canadian Human Rights Act.

6 At each level of the grievance process, the employer responded that the grievance was untimely and that the applicant was no longer an employee of the employer when it was filed. Following the grievance’s denial at the final level of the grievance process, the bargaining agent referred it to adjudication on August 31, 2009. On October 13, 2009, the employer objected to an adjudicator’s jurisdiction to hear the grievance because it had not been filed within the prescribed period and because the employer had denied it on that ground at each level of the grievance process. In response to the employer’s objection, the bargaining agent submitted this application for an extension of the prescribed time.

II. Summary of the evidence

7 The applicant adduced 19 documents in evidence. He called his spouse, Sylvain Archambault, Angela Albert, Dr. Marie Quintal and Dr. Claude Archambault as witnesses. The applicant also testified. Mr. Archambault is a union representative working for one of the bargaining agent’s components. He has been involved with the applicant’s grievance since April 2009. Ms. Albert is an IRB employee. In 2008, she was the president of the union local to which the applicant belonged. Dr. Quintal is a psychiatrist. In May 2009, she wrote an expert report on the applicant’s mental health. Dr. Archambault is a general practitioner. The applicant has been his patient since 1987.

8 The employer adduced 16 documents in evidence. It called Valérie Daigle and Suzanne Marcil as witnesses. Ms. Daigle was a labour relations advisor for the IRB between January 2007 and May 2009. In that capacity, she was involved in managing the applicant’s file. Ms. Marcil has been a labour relations manager at the IRB since 2004. She was also involved in managing the applicant’s file.

9 When he left the IRB at the end of March 2008, the applicant had worked there for about 15 years in an administrative position. He worked for close to 27 years in total in the federal public service.

A. The applicant’s departure from the IRB and the preceding months

10 The applicant went on an extended work stoppage beginning in September 2005 and received disability insurance benefits during that time. In late fall 2007, the applicant was to return to work. If not, he risked losing his disability benefits. Following discussions with his spouse and a consultation with Dr. Archambault, the applicant proposed a gradual return to work to the employer beginning in January 2008. On December 10, 2007, Dr. Archambault signed a return-to-work plan prepared by the applicant and his spouse. The plan included a series of restrictions at work. Among other things, they included the applicant not assuming any supervisory work or writing policies or procedures. He was not to remain sitting at a desk for long periods and was to perform only a minimum of administrative tasks. The plan also recommended that the applicant instead be assigned to tasks requiring physical work or to special projects. He was to avoid elevators as much as possible or to work from home. The plan provided for a gradual part-time return to work. The plan was to gradually increase his scheduled workdays, with a projected return to full-time work in July 2008. The applicant sent the return-to-work plan to the employer on December 17, 2007.

11 On December 20, 2007, the applicant met with his supervisor, Christiane Bouvier, and with Ms. Daigle and Ms. Marcil. The applicant told them that he had taken two tranquilizers that morning. He testified that he had also smoked marijuana but did not so inform the employer’s representatives. At the meeting, the applicant learned that his position had been declared surplus but that he had not been informed because he had been on sick leave. The employer’s representatives also informed him that they could not offer him anything because of his limitations.

12 The applicant stated that he contacted Ms. Albert, the bargaining agent’s local representative at that time (around December 2007), to seek assistance for the problem with his position, which had been declared surplus. Ms. Albert allegedly told him that she could not help him because he had been suspended from the union for crossing a picket line during the last strike of the bargaining unit to which he belonged and that he had not paid the fine imposed on him. However, Mr. Archambault testified that Ms. Albert’s information had been incorrect and that the bargaining agent had a duty to represent the applicant. Ms. Albert testified that she did not recall having that conversation with the applicant around December 2007 or at any other time, but she did recall that the applicant’s membership had been suspended.

13 Instead of accepting the applicant’s return–to-work plan, the employer suggested granting him paid leave for his proposed work hours. The applicant accepted the employer’s proposal and signed leave forms for those hours.

14 On January 21, 2008, the applicant called Ms. Daigle to inform her that he wished to take advantage of the options offered under the workforce adjustment program. That same day, the employer officially informed him in writing that the position that he held had been declared surplus because of the elimination of its functions. The following extract of that letter, part of which is cited in paragraph 4 of this decision, accurately reflects its content:

[Translation]

…

Given the significant restrictions on your reintegration to work, it is unlikely that we will be able to find you a reasonable job meeting all those restrictions at the same or equivalent group and level at the Immigration and Refugee Board (IRB) and/or in the public service. Consequently, the IRB is unable to give you a guarantee of a reasonable job offer. However, I would like to inform you that you are declared an opting employee as of the date of this letter. As an opting employee, you are eligible for the following three (3) options:

Option A: Twelve-month surplus priority period in which to secure a reasonable job offer.

Option B: Transition support measure (TSM): a cash payment based on your years of service in the public service.

Option C: Education allowance: a cash payment equal to the TSM plus an amount of not more than $8000 for reimbursement of receipted expenses for tuition, costs of books and mandatory equipment.

…

15 The applicant testified that he had read parts of the January 21, 2008 letter. In it, the employer also informed him that he had to inform it of his choice of option by July 11, 2008. The employer also invited the applicant to discuss the options with a person of trust and to consult Part VI of Appendix E of the collective agreement, which provided more information about the three options. On January 29, 2008, the applicant wrote to Ms. Bouvier to inform her that he felt lost and that he needed to make informed choices. He asked if his employer could help him obtain professional rehabilitation and detoxification services. Then, on February 4, the applicant wrote to Ms. Daigle to ask her for the contact information for the union and the employee assistance program. Ms. Daigle emailed him the information that same day.

16 On February 5, 2008, the applicant asked the employer to provide him with an estimate of the amounts that he could be paid to contribute to a registered retirement savings plan. On February 6, 2008, the employer replied to the applicant and provided him with the specific financial impacts of each of the three options. That letter contained the following statement in bold lettering: “[Translation] Regardless of which option you choose, your decision will be irrevocable.” The February 6, 2008 letter also included information about retirement and supplementary death benefits.

17 On March 12, 2008, Ms. Daigle and the applicant spoke by telephone about the possibility of him obtaining a new unrestricted medical certificate from his physician, which would allow him to return to work. Ms. Daigle explained to him that, were he able to return to work, his available options would change. Since he did not seem to fully understand the situation, Ms. Daigle offered to meet with him. On Thursday, March 13, 2008, Ms. Daigle emailed the applicant, informing him that she had left him two phone messages about meeting with him, along with Ms. Bouvier and Ms. Marcil, to discuss new aspects of the situation. She asked him to contact her as soon as possible to confirm his availability. Later that same day, he emailed a reply to Ms. Daigle, stating that he preferred to meet with them at a location other than the office. He also wrote that, if the employer agreed to pay him for January, February and March, he would sign his letter of resignation at the meeting.

18 Ms. Daigle’s proposed meeting took place the morning of March 18 in the food court of an office building in downtown Ottawa. The meeting apparently lasted about 30 minutes. At some point, the applicant told those at the meeting that he wanted to select Option C and that, to that end, he wanted to resign from the public service. He asked them to tell him what to write in his letter. Ms. Marcil dictated to him. The letter written at that time, signed by the applicant and given to Ms. Bouvier, reads as follows:

[Translation]

March 18, 2008

Christiane Bouvier

Further to the letter of January 21, 2008, this is to inform you that I have chosen Option C as an opting employee. I am resigning from the public service as of March 31, 2008.

André Lagacé

19 According to the applicant, the three options were not discussed at the March 18, 2008 meeting. He testified that circumstances were urgent, that he had had enough and that he needed money. Option A no longer applied to him because of his restrictions. He said that he chose Option C and resigned on an impulse. He testified that he thought that the employer knew that he would take the money. He did not feel threatened, but he felt some pressure since three people were present. He wondered why three people were present to accept a letter of resignation. As soon as the letter was signed, all three left “[translation] like thieves,” according to the applicant. He did not explain his foundation for that statement.

20 According to Ms. Daigle and Ms. Marcil, the three options were discussed at the March 18, 2008 meeting. Ms. Daigle testified that the applicant wanted to make a decision at that meeting, and Ms. Marcil suggested that he wait and discuss it with those close to him. Ms. Marcil confirmed Ms. Daigle’s testimony. She added that the applicant said that he had given his decision some thought and that he needed money. Ms. Daigle stated that the applicant appeared calm and to fully understand the three options and what he was told at the March 18, 2008 meeting. Ms. Marcil confirmed Ms. Daigle’s testimony and added that the applicant appeared coherent but nervous. She had no indication that the applicant might have been intoxicated.

21 The applicant informed his spouse of his resignation that same day. She was very upset to learn the news. Even though she did not actually see him, she is certain that the applicant was intoxicated on the morning of March 18, 2008 when he went to meet with the employer’s representatives.

22 At the March 18, 2008 meeting, the applicant mentioned to the employer that he was entitled to the gift for employees with 25 years of service and that he wanted information about how to claim it. Later that same day, Ms. Daigle sent him the relevant information. She also sent him an end-of-work report form, which he was required to complete. The applicant emailed Ms. Daigle the next day, informing her that he had completed the requested document.

B. The applicant’s claims after he left the IRB

23 On March 27, 2008, the employer wrote to the applicant to explain the impact of his work stoppage on his benefits, such as the Public Service Superannuation Plan, the Supplementary Death Benefits Plan, the health care plan, the severance pay and the education allowance. The applicant testified that he did not follow up on that letter as he should have. It was too much for him. He realized later that he should have informed the employer during the appropriate period of his intentions with respect to death benefits and the health care plan. His spouse testified they incurred significant financial losses because the family was unable to claim several hundred dollars in drug costs.

24 The applicant also testified that he did not follow up on the $8000 education allowance that he could have claimed as of April 2008. It was too much for him, and he was not looking after his affairs at that time. In contrast, Ms. Marcil testified that the applicant called her on August 11, 2008 to obtain funds from that education allowance to pay for his stay at a detox centre. Ms. Marcil denied the request. The applicant then became agitated on the phone. He did not agree with Ms. Marcil. He told her that he would file a complaint with the CHRC. He also said that the employer had steered him toward Option C to get rid of him. Ms. Marcil asked the applicant to calm down. When he refused, she hung up. The applicant admitted that the conversation took place and generally agreed with Ms. Marcil’s handwritten notes.

25 On May 8, 2008, the applicant emailed Ms. Marcil, asking her for access to all files about him in the employer’s possession. Ms. Daigle agreed to a meeting with him at 09:00 on May 15, 2008. The applicant did not show up. On May 15 at 09:25, Ms. Daigle left him a telephone message. Then, at 09:46, in an email, she invited him to contact her again if he still wanted to consult his files.

26 On June 24, 2008, the applicant wrote to Ms. Daigle and asked for the date on which his position had been declared surplus. He had discussed that issue with his spouse, and they wanted an answer. On June 27, 2008, Ms. Daigle replied that a reorganization had taken place in August 2005 through which the functions of his position had been reassigned. On June 28, 2008, he asked why he had not been informed in August 2005. On July 2, 2008, Ms. Daigle replied by email that he had been on sick leave then and that the policy had been to communicate as little as possible with employees on sick leave. She added that his manager had had informal discussions with him during his sick leave and that she had informed him of the changes under way and to come.

C. Applicant’s health and dependency problems

27 The testimonies of the applicant, his spouse, Dr. Quintal and Dr. Archambault were consistent with respect to the applicant’s health problems. For her part, his spouse was able to provide direct testimony because she has lived with the applicant for the past 25 years. The same is true of Dr. Archambault, who has treated him since 1987. Dr. Quintal’s comments are based on a two-hour meeting she had with him in early 2009 and on a detailed review of his medical file.

28 The applicant has suffered from depression and anxiety issues for many years. Despite his state of health, he was able to keep his job by taking sick days from time to time. He has also suffered from alcoholism. In December 2004, his father died. His situation then significantly deteriorated. A short time later, he began regularly smoking marijuana. He gradually began smoking it several times per day. He admitted that, at a certain point, he began smoking marijuana as soon as he rose in the morning. He also has a gambling addiction. Between 1996 and 2009, he stated that he lost over $200 000 at casinos and on video poker machines.

29 The applicant underwent several rehabilitation and detox sessions between 2005 and 2009 to overcome his many addictions. Among other treatments, he received individual outpatient follow-up from Centre Jellinek between October 2005 and April 2008 and between April 2009 and July 2009. He also had six residential (hospitalized) stays between 2006 and 2009, lasting about 10 days. Centre Jellinek provides confidential services to individuals with alcohol, drug, prescription drug and gambling problems. The applicant also spent September 10 to 25, 2008 at Maison Jean Lapointe, which has a mandate similar to that of Centre Jellinek.

30 The applicant testified that he was very depressed in March and April 2008. He had suicidal thoughts at that time. He was confused and desperate as well as intoxicated from morning to night. He also testified that those conditions continued between April and October 2008. He was intoxicated every day and was unable to make decisions. He could not finish what he started. He began two renovation projects and abandoned both of them. He was impulsive and acted without thinking logically. He gave examples of purchasing 12 000 golf balls to perhaps resell for profit and wanting to purchase a house for $1.3 million to set up a treatment centre. He also failed to maintain his insurance with the employer and to claim his education allowance. The applicant’s spouse confirmed his testimony and added that, in 2008, he did nothing. She had to look after everything and make all the decisions. She also testified that his health and spirit worsened after his resignation in March 2008. He took drugs and drank everyday.

31 The applicant testified that, in September 2008, he was about to lose his family. Thus, he decided to act by seeking care at Maison Jean Lapointe. At that point, his thoughts cleared. Speaking with a therapist about the loss of his job and his departure from the IRB, he was asked why he did not file a grievance. Shortly after leaving Maison Jean Lapointe, he contacted the bargaining agent. This grievance was then filed. The applicant testified that he never thought of filing a grievance or contacting the bargaining agent between March and September 2008.

32 In March 2008, Dr. Archambault wrote a summary of the applicant’s medical file. It states that the applicant has been burned out and depressed since the late 1980s, that he has taken medication for depression since 1993, and that he has had a serious drinking problem since 1996. In 2001, he began developing phobias. Between 2002 and 2004, he had instances of aggression at work. In March 2008, Dr. Archambault determined that the applicant was suffering from chronic anxiety. Dr. Archambault saw him in April 2008 for a checkup. At that time, his health was no better or worse than it had been to that date. Dr. Archambault did not see him between April and October 2008.

33 Dr. Quintal only saw the applicant in February 2009. Therefore, she cannot testify directly about his state of health in 2008. Instead, she based her opinion on what he told her, on Dr. Archibald’s medical reports and on several documents provided by the bargaining agent. Dr. Quintal explained that it is possible for someone to think more clearly when he or she ceases drinking, as the applicant did in September 2008. Dr. Quintal does not believe that, between March and September 2008, the applicant was able to think about everything happening to him and to take the steps required to get himself out of the situation. He was not capable of understanding everything and the consequences for his life. He was acting without thinking, and the alcohol and drugs reduced his analytical abilities.

III. Summary of the arguments

A. For the applicant

34 The applicant asked that the time extension be granted on the basis of fairness and because his application meets the criteria set out in Schenkman.

35 The applicant’s failure to file his grievance in the time set out in the collective agreement was justified by clear, compelling and cogent reasons. He was not capable of filing a grievance between March and September 2008 or of informing the union of his situation. He was depressed, confused, desperate and taking drugs, and he had suicidal thoughts. He was always drunk. He found facing reality too difficult. His concurrent illness and drinking habit meant that he was unable to fully understand his situation and that he was prevented from doing anything about it.

36 The applicant’s grievance was filed six months after the time specified in the collective agreement expired. That delay is reasonable. In the past, the Board or its Chairperson has extended time limits for delays of more than six months. Moreover, the applicant acted with diligence. Only after his stay at Maison Jean Lapointe did he realize that he could file a grievance. He was thinking clearly at that time. He did not waste time. He contacted the bargaining agent and filed a grievance in the weeks that followed.

37 The evidence adduced did not address the merits of the grievance. Therefore, the Chairperson cannot deny the extension of time on the basis that the grievance has no chance of success. Finally, if the Chairperson grants the time extension, the prejudice to the employer is minimal. However, if the Chairperson denies it, the injustice to the applicant is serious because he would lose his only recourse against his employer. He would be unable to challenge his forced resignation and the discrimination that he experienced from the employer.

38 The applicant referred me to the following decisions: Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSLRB 1; Trenholm v. Staff of the Non-Public Funds, Canadian Forces, 2005 PSLRB 65; Richard v. Canada Revenue Agency, 2005 PSLRB 180; Gill v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 81; and Vancouver Island Health Authority v. Hospital Employees’ Union, 2008 CLB 14728.

B. For the respondent

39 The most important criteria to consider when deciding an extension of time to file a grievance is to establish whether the applicant had clear, cogent and compelling reasons for not filing the grievance in the time set out in the collective agreement. He did not provide evidence that he had such reasons. He could have filed a grievance much earlier, contacted the bargaining agent or asked for advice. He waited six months before doing so. The real reason for the delay is that he did not think that he could file a grievance until he was informed otherwise in September 2008. He decided to act based on that information. Consequently, his state of health did not keep him from acting sooner.

40 In December 2007, Dr. Archambault established that the applicant was fit to begin a gradual return to work. According to Dr. Archambault, the applicant’s state of health was no different in April 2008 than in December 2007. If the applicant was fit for a gradual return to work, he was certainly fit to inform himself about his rights and to file a grievance. Furthermore, he communicated with the employer on several occasions after March 2008 about specific things. Since he was able to do that, he was also able to communicate with the bargaining agent to file a grievance.

41 Under the circumstances, the delay of six months before filing a grievance is considerable. The applicant would definitely suffer serious harm from not being able to refer his grievance to adjudication. However, the employer has a right to expect that, once the time for filing a grievance expires, the specific issues of a case can be considered resolved. It is a question of stability in labour relations.

42 Given that the applicant did not adduce evidence that he had clear and compelling reasons for not complying with the prescribed time limit for filing a grievance and that he exceeded that limit by more than six months before filing his grievance, the application should be denied.

43 The respondent referred me to the following decisions: Schenkman; Rouleau v. Staff of the Non-Public Funds, Canadian Forces, 2002 PSSRB 51; Featherston v. Deputy Head (Canada School of Public Service) and Deputy Head (Public Service Commission), 2010 PSLRB 72; and Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92.

IV. Reasons

44 The bargaining agent, on behalf of the applicant, asked the Board’s Chairperson to extend the time limit set out in the collective agreement to allow it to file a grievance. In fact, the grievance had been filed on October 31, 2008, but the employer objected to an adjudicator’s jurisdiction on the basis that the grievance had not been filed within the time limit.

45 On March 18, 2008, the applicant informed the employer in writing that he chose Option C under the IRB’s workforce adjustment program and that he would resign as of March 31, 2008. Then, on October 31, 2008, seven months later, he filed a grievance alleging that the employer had forced him to make decisions to his disadvantage, that it had discriminated against him and that it had contravened Treasury Board policies. Even were it possible to argue that some of the alleged facts date from before March 18, 2008, I will assume that March 18, 2008 is the date on which the applicant became aware of the action or circumstances giving rise to his grievance. Under the collective agreement, the grievance should have been filed within 25 days, or no later than April 13, 2008. In fact, excluding statutory holidays, the grievance was filed 198 days after the prescribed time expired.

46 The criteria for deciding applications for extensions of time have been reiterated numerous times in the Board’s jurisprudence. They are the following: whether the delay is justified by clear, cogent and compelling reasons; the length of the delay; the due diligence of the applicant; balancing the injustice to the applicant against the prejudice to the respondent in granting an extension; and the chance of success of the grievance. Each criterion is not necessarily equally important. The facts adduced must be examined to decide each criterion’s weight. Some criteria might not apply, or only one or two might weigh in the balance.

47 Despite that, I believe that, in general, the delay must be justified by clear, cogent and compelling reasons; otherwise, the other criteria become irrelevant. What purpose would the time limits agreed to by the parties to a collective agreement serve if the Board’s Chairperson could extend them based on an application not strongly justified? Granting an extension not based on a strong justification of the delay would amount to not respecting the agreement entered into by the parties to the collective agreement. Clearly, paragraph 61(b) of the Regulations was not drafted in that spirit.

48 Although it has been established that each case must be decided on its own circumstances, I carefully examined the decisions adduced by the parties before deciding, in light of the evidence adduced, whether the reasons given by the applicant were clear, cogent and compelling. The reasons in Rouleau, Grouchy and Richard are closest to those adduced by the applicant.

49 In Rouleau, Vice-Chairperson Potter denied extending the time for the grievances. The applicant had been ill and under psychiatric care, but the evidence showed that she had been able to handle a number of her affairs, for example, writing letters. In Grouchy, Vice-Chairperson Bédard refused to extend the time to file a grievance. The applicant suffered from extreme anxiety, which affected his ability to concentrate and to carry out his normal activities. However, Vice-Chairperson Bédard found that the evidence did not establish that the applicant’s state of health had made him unable to understand that there was a time limit to respect in the grievance process or unable to read and understand the provisions of the Regulations. In Richard, Vice-Chairperson Matteau granted the extension of time to file a grievance. The applicant had suffered from post-traumatic stress disorder, and only after time had passed had she been able to objectively assess the usefulness of filing a grievance. Based on the evidence adduced by the parties, I have difficulty concluding that the applicant was unable to assess the usefulness of filing a grievance. Furthermore, I am not certain that that criterion should be applied. On that point, I instead prefer the criterion set out in Grouchy, which consists of examining the applicant’s ability to understand that a time limit exists that is to be respected.

50 The evidence adduced by the parties shows that the applicant was sick from March to October 2008. The evidence also revealed that daily, at that time, he drank and consumed drugs. Dr. Quintal testified that the applicant was unable to think about what was happening to him or to grasp the consequences to his life. However, Dr. Quintal did not examine the applicant until several months later and based her opinion in part on Dr. Archambault’s report, in which he stated that the applicant’s state of health was no better or worse in April 2008 than it was in December 2007, when he recommended the gradual return to work.

51 There is no doubt that the applicant was unwell in 2008 and that he had difficulty functioning. But that did not stop him from asking for help if he believed that the employer had aggrieved him. A phone call or an email to his bargaining agent’s central office did not require significant cognitive ability. The medical evidence adduced and the testimonies of the applicant and his spouse did not convincingly prove that his state of health prevented him from making that effort or from taking the minimal action of contacting the office of his bargaining agent or someone else to ask for help. Nothing required an exhaustive analysis of his situation or the preparation of a relatively complex grievance. Rather, it involved taking steps to have someone do it with him and for him. Even given his state at that time, the evidence does not convince me that he could not have done it.

52 After signing his letter of resignation on March 18, 2008, the applicant communicated with the employer on several occasions. On May 8, 2008, he wrote to Ms. Marcil to gain access to all files about him. On June 24, 2008, he wrote to Ms. Daigle to find out when his position had been declared surplus. On August 11, he called Ms. Marcil to obtain funds to pay for his stay at Maison Jean Lapointe from the funds he could have received for schooling. Thus, the applicant was able to function, if minimally. No evidence was adduced to explain why he was able to take those steps, all with his employer, but was unable to contact his bargaining agent for help.

53 Therefore, the applicant did not adduce evidence showing that he had clear, cogent and compelling reasons to file his grievance 198 days after the expiration of the time set out in the collective agreement. Therefore, the other criteria become secondary, and I need not address them.

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

V. Order

55 The application for an extension of time is denied.

56 The grievance in PSLRB File No. 566-02-3093 is dismissed.

May 9, 2011.

PSLRB Translation

Renaud Paquet,
Vice-Chairperson