FPSLREB Decisions

I. Application before the Chairperson

1 Jean-Claude Bertrand (“the applicant”), filed an application for an extension of time under paragraph 61(b) of the Public Service Labour Relations Board Regulations (“the Regulations”) to file a grievance alleging a breach of the Treasury Board Directive on the Performance Management Program (PMP) for Executives (“the Directive”).

2 Pursuant to section 45 of the Public Service Labour Relations Act (PSLRA), 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 Regulations to hear and decide the application for extension of time in this matter.

II. Summary of the evidence

3 The applicant was employed in the federal public service for 25 years. He joined the Executive (EX) group in December 2004 at the Department of Justice. He was subsequently employed in the Pensions and Benefits Sector of the Treasury Board Secretariat (TBS).

4 The EX group is subject to a performance management program. Under this plan, performance pay is an integral part of overall compensation. EX group employees are eligible for an annual lump-sum payment termed "at risk pay."

5 The applicant received performance pay in each fiscal year from 2004-2005 to 2007-2008. In 2004-2005, he received a pro-rated lump sum because he had worked in the EX group for just five months of that fiscal year. In 2008, the applicant advised his supervisor that he was planning to retire in August of that year. In April 2008, the applicant signed his performance agreement and established performance objectives for the upcoming fiscal year. His supervisor was aware that he would be retiring in August of that year.

6 The applicant retired on August 20, 2008. His performance for the 2008-2009 fiscal year was evaluated by his supervisor in June 2009 (Exhibit A-1, tab 3). His supervisor indicated that he had met all the objectives set out in the performance agreement.

7 Performance pay for 2008-2009 would normally have been paid out in June 2009. The applicant did not receive notification of the results of his performance evaluation or that he would be receiving performance pay.

8 The applicant called the TBS in the summer of 2009 after realizing that he had not received any notice. He spoke to the person responsible for human resource issues in his former section, Kate Beauchamp. She called him back a few days later to advise him that he was not on the list for receiving performance pay because he had worked less than six months in the 2008-2009 fiscal year. After the telephone conversation, she spoke to a number of people at the TBS about the Directive. She called him back and told him that there were no exceptions to the six-month rule. She testified that she did not suggest to him that the decision to deny him performance pay was not final. She testified that she told him that she would make further enquiries and that someone would get back to him. She then left the TBS in August 2009 and does not know if anyone got back to him.

9 Ms. Beauchamp testified that she was not an expert in labour relations and that she likely would not have told the applicant he did not have a right to file a grievance. However, in cross-examination, she stated that she did not recall if she said anything about the right to grieve.

10 The applicant also had a telephone conversation with a human resources specialist at the TBS, Lyne Trépanier, at some point in the summer of 2009. She informed him that internal guidelines had been issued that required employees to have worked for at least six months to be eligible for performance pay. He testified that he asked her about possible avenues of recourse. He testified that they discussed the grievance process but that she told him that he could not file a grievance because he was no longer an employee. He testified that the possibility of recourse to the Federal Court was also mentioned in the conversation. He testified that she told him that the matter could be raised for reconsideration. He agreed with that approach. She told him that she would get back to him. He did not hear back from her. Ms. Trépanier did not testify. The applicant testified that he tried to contact her but that she had retired from the public service and that the TBS would not give him her contact information.

11 Isabelle Grenier had responsibility for managing the terms and conditions of employment for the EX group at the TBS. She testified that she had a conversation with the applicant in the summer of 2009. She explained to him that he was not eligible for performance pay. She testified that she did not suggest to him that the decision to deny him performance pay was not final.

12 The applicant testified that he contacted the Association of Professional Executives of the Public Service of Canada (APEX). He also spoke to a number of individuals within the TBS. No one got back to him on his requests for clarification. On December 27, 2009, he received an email from Line Morin-Smith, advising him that someone in the office of the Assistant Deputy Minister, Pension and Benefits Sector at the TBS (W. Davern Jones) would call to schedule a meeting (Exhibit A-1, tab 7). In her email, Ms. Morin-Smith referred to the grievance process. She clarified in an email sent on January 4, 2010 that she was not implying that the applicant had filed a grievance but that she was simply advising him that Mr. Jones was the first level of the grievance process if the applicant were to file a grievance.

13 The applicant testified that he was becoming frustrated about not being able to sit down with someone to discuss the substantive issues that he had raised. He called the Registry of the Public Service Labour Relations Board (PSLRB) on January 5, 2010 and was advised that he could grieve. He testified that this was the first time he realized that he could grieve the decision to deny him performance pay.

14 On January 7, 2010, the applicant filed a grievance. As corrective action, he requested the payment of performance pay for the period from April 1, 2008, until the date of his retirement.

15 The Regulations state that a grievance must be filed within 35 days of the date on which the grievor had knowledge of the occurrence or matter affecting his or her terms and conditions of employment (section 68).

16 The applicant received the first-level decision on February 3, 2010 (Exhibit A-1, tab 4), the second-level decision (undated, Exhibit A-1, tab-5) and the final-level decision on April 22, 2010 (Exhibit A-1, tab 6). At each level, the grievance was denied on the basis that it was untimely. The decisions stated that he knew by August 2009 at the latest that he would not be entitled to performance pay. Each decision included comments on the merits of his grievance. The most fulsome comments were in the final-level decision:

…

… the Directive on the Performance Management Program for Executives gives the Deputy Head of any department the authority to determine the period for a performance award. The Treasury Board Secretariat has for many years consistently applied a minimum of six (6) month qualifying period for a performance award. There has been no deviation from that policy. Since you had not completed the necessary six (6) month qualifying period in accordance with the Secretary's direction, you are not entitled to a performance award for the fiscal year 2008-09.

…

17 The applicant wrote to the Secretary of the Treasury Board on April 29, 2010, to advise of his intention to file this application and to advise that he would be filing an application for judicial review of the decision to deny him performance pay (Exhibit A-1, tab 10). In his letter, he alleged that there was no authority under the Directive to establish a minimum qualification period of six months. He also alleged that minimum periods were applied inconsistently across departments, which was both unfair and inequitable.

18 On May 4, 2010, the applicant filed this application with the PSLRB. He has not filed a judicial review application.

19 On May 19, 2010, the applicant received a reply from the Secretary of the Treasury Board to his letter of April 29, 2010 (Exhibit A-1, tab 10). In the letter, the Secretary elaborated on the grievance process decisions on the merits of the grievance as follows:

…

… section 2 of Appendix D of the Directive on the Performance Management Program for Executives gives the Deputy Head of any department the authority and the discretion to determine the period for a performance award:

To be eligible for a performance award, executives must:

• have a valid performance agreement and an assessment of performance against it,
• have worked in a position subject to the Performance Management Program (PMP) for a period of time that the executive's immediate manager has determined is sufficient to establish a valid performance agreement and to evaluate the results achieved against it. A minimum of three (3) months is recommended, and
• be on strength as of April 1st of the fiscal year following the year for which performance awards are being considered (except in certain circumstances described in the table below).

The Secretariat has, for many years, consistently applied a minimum of six (6) months qualifying period for a performance award. There has been no deviation from that policy.

Since you have not completed the necessary six (6) months qualifying period, in accordance with the TBS's direction, you are not eligible to a performance award for the fiscal year 2008-09.

…

20 The applicant testified that the denial of a performance pay bonus was a financial hardship for him and his spouse, since performance pay is pensionable.

III. Summary of the arguments

A. For the applicant

21 The applicant submitted that the respondent has not provided any reasonable response to the concerns he has raised. In particular, the respondent has not provided any evidence of its authority to set the eligibility for performance pay at six months of employment in a fiscal year. The respondent is denying the applicant access to judicial review because it has not dealt with the grievance on its merits. The applicant submitted that the only matter that he could bring to judicial review is the respondent's decision on timeliness. If this application for an extension of time is not granted, the respondent will be allowed to escape the recourse mechanism. The failure to consider the grievance on the merits was an abuse of authority.

22 The reason for the delay in filing a grievance was the erroneous information provided by the respondent. The applicant submitted that he had exercised diligence in pursuing options to resolve the matter. He did not grieve only because of the information he had received from the respondent. There was never a suggestion that he did not intend to pursue the matter.

23 The applicant submitted that the delay in filing his grievance was short and that it did not prejudice the employer.

24 The applicant submitted that, since his grievance was not adjudicable under the PSLRA, a lesser standard is applicable in determining whether to grant an extension of time (Rabah v. Treasury Board (Department of National Defence), 2006 PSLRB 101).

25 It is not necessary to apply equal weight to all the factors outlined for an extension of time application: Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 59. In this case, there is a blatant issue of fairness, which should be given the most weight in determining whether to grant an extension of time.

B. For the respondent

26 The applicant knew as early as July 2009 that he was not going to receive a performance bonus. To formally challenge the decision not to pay it, he was required to file a grievance in a timely manner. He could have filed his grievance and continued his lobbying efforts.

27 The length of the delay was significant (at least five months). In addition, the applicant was aware that his grievance was untimely in February 2010, and he waited a further three months to file this application.

28 The applicant’s primary reason for not filing a timely grievance was the lack of knowledge of his rights and the allegedly erroneous information provided by the respondent. His rights were easily verifiable, which is not a cogent or compelling reason for delay (Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, at para 76 and 77).

29 The applicant did not establish that he was told that he could not file a grievance. In the alternative, the applicant is a sophisticated individual, and it was incumbent on him to inform himself of his rights. He had access to the relevant information through the APEX.

30 In addition, there is an extremely low chance of success of this grievance. That should be given some weight in the determination (Sturdy v. Deputy Head (Department of National Defence), 2007 PSLRB 45, at para 16). It is clear that the TBS had a six-month rule for granting performance pay. The decision in Appleby-Ostroff v. Canada (Attorney General), 2010 FC 479, states that the employer is entitled to make a decision relating to terms and conditions of employment that deviates from a written policy (at paragraph 68).

C. Applicant’s rebuttal

31 The applicant submitted that the explanation given by Ms. Trépanier as to why he could not file a grievance seemed reasonable at the time. He was not familiar with the grievance process.

32 There is no obligation to file an extension of time application immediately. The requirement to file one arises only after the completion of the grievance process.

IV. Reasons

33 The applicant and the respondent agree on one thing — the denial of performance pay of an employee in the EX group cannot be adjudicated under the PSLRA. This application is limited to an extension of time to file a grievance.

34 Although the respondent denied the grievance on the basis of timeliness, it has also addressed its merits. Therefore, it is difficult to see the point of the applicant seeking an extension of time. Although the respondent did not address all the applicant’s submissions (namely, its authority to change the recommended minimum from three to six months), it is not obligated to when responding to the merits of a grievance.

35 The applicant maintains that an extension of time is needed for him to seek judicial review of the denial of his performance pay. In my view, this is not a sufficient reason to justify exercising my discretion to grant an extension of time, for the following reasons.

36 The applicant was advised by Ms. Beauchamp sometime in July of 2009 of the reason for not receiving the performance pay. Ms. Grenier also spoke to him in the summer and informed him he was not eligible to receive performance pay. He also discussed the grievance process with Ms. Trépanier in the summer. The length of the delay in filing a grievance is therefore approximately four to five months.

37 I agree with the applicant that there is no obligation to file an extension of time application until after the completion of the grievance process. This is because the employer can waive timeliness at any level of the grievance process.

38 In Schenkman (at paragraph 75), the factors to weigh in assessing whether to grant an extension of time are as follows:

…

• 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 employer in granting an extension; and
• the chance of success of the grievance.

39 The applicant has given two reasons for the delay in filing his grievance. First, he was still waiting for an answer from the respondent about a reconsideration of his eligibility for the performance pay, and second, a representative of the respondent told him that he could not file a grievance.

40 The decision not to grant him performance pay was clearly communicated to the applicant in the summer of 2009. He was also advised of the six-month rule at that time. That was the point at which he should have grieved. Although he was told that someone would get back to him, the balance of probabilities establishes that it was never communicated to him that the denial of performance pay was not final. The decision to deny performance pay was clearly communicated and a vague promise to have the matter looked into again does not suspend the initial decision. The fact that he asked about recourse at the time of the discussion with a representative of the respondent in the summer of 2009 shows that he realized that the decision to deny the performance pay had been made.

41 The applicant stated that he relied on the statement of Ms. Trépanier that he did not have a right to grieve. Relying on a statement by the employer is not a cogent or compelling reason for a failure to file a timely grievance (Schenkman, at para 77).

42 In the absence of a cogent and compelling reason for a delay in filing a grievance, there is no need to assess the other factors.

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

V. Order

44 The application is dismissed.

July 14, 2011.

Ian R. Mackenzie,
Vice-Chairperson