FPSLREB Decisions

I. Applications before the Chairperson

1 Carla Callegaro (“the applicant”) is a correctional officer working at the Fraser Valley Institution in Abbotsford, British Columbia. In March and April 2010, she filed two grievances against the Correctional Service of Canada (“the employer”) for imposing on her a 1-day suspension and a 10-day suspension. For both grievances, the applicant was represented by her bargaining agent, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the union”).

2 The employer rejected both grievances at the final level of the grievance procedure on the basis that the applicant was late transmitting the grievances to that level. Furthermore, following their referral to adjudication, the employer objected to the grievances being heard at adjudication as it alleged that they were referred 14 months after the normal deadline.

3 On February 6 and 10, 2012, the applicant wrote to the Public Service Labour Relations Board (“the Board”) and asked that the Board’s Chairperson grant an extension of time for both grievances pursuant to section 61 of the Public Service Labour Relations Board Regulations (“the Regulations”).

4 In her February 2012 submissions, the applicant admits that there was a delay transmitting the grievances to the final level of the grievance procedure. The delay was due to issues arising from the recall of the elected union local executive by the union local members. According to the union, nobody at that time could help the applicant with her grievances. Later on, a new grievance coordinator was elected. That grievance coordinator failed to transmit the documents and the grievances to the regional union office, and as a result, the grievances were referred to adjudication late. In January 2012, the union contacted a labour relations officer of the employer, explained the situation and requested an extension of time. The employer refused to grant the extension.

5  According to the respondent, the applicant’s union representative received and read the second-level reply for the first grievance on May 9, 2010 and for the second grievance on May 20, 2010. Both grievances were transmitted to the final level on July 5, 2010. At the final level, the employer did not provide a reply within 30 days. The grievances were referred to adjudication on December 1 and 14, 2011, about 14 months after the referral deadline had expired. The applicant does not agree with the respondent’s method of calculating time limits at the final level of the grievance procedure, but she admits that the referrals to the final level and to adjudication were late.

6  The applicable collective agreement is the one between Treasury Board and the union for the Correctional Services Group bargaining unit (expiry date: May 31, 2010; “the collective agreement”).

II. Summary of the arguments

A. Applicant’s submissions

7 The applicant argued that nothing in the employer’s submissions proves that she or a union representative received the second-level reply as stated by the respondent. She also submitted that the respondent erred in facts and in law in its calculation of the time limits to transmit the grievances to the final level of the grievance procedure.

8  The union was responsible for missing the deadlines, not the applicant. She should not be penalized for it. Furthermore, in the past, the employer has never replied to grievances on time. Sometimes, it does not reply at all. In addition, the prejudice caused by the late transmittal to adjudication is minimal for the employer while the subject matter of the grievances are important to the applicant, considering the lengths of her suspensions.

9 The applicant’s representative submitted that, at the time in question, the union local was going through some changes in its key positions, which contributed to the lack of due diligence in referring the grievances to adjudication.

10 The applicant argued that there were clear, cogent and compelling reasons for the delay, and on that basis, the applications for extensions of time should be granted.

11 The applicant referred me to Riche v. Treasury Board (Department of National Defence), 2009 PSLRB 157. She also referred me to the following extracts from Callegaro v. Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, 2012 PSLRB 85:

…

17. This case is about omissions or errors made by local union officers in doing what needed to be done to refer two grievances to the final level of the grievance procedure and to adjudication. The parties agreed that the omissions or errors were caused by the recall of the elected local union executive and by the newly elected grievance coordinator who did not provide the respondent with the required paper work [sic]. … this factual background does not totally excuse the respondent who, in my opinion, failed to exercise the standard of care that it should have in making sure that deadlines of the grievance procedure were respected…

…

B. Respondent’s submissions

12 The applicant’s requests for extensions of time do not meet the factors identified in the jurisprudence. There were no clear and cogent reasons that the applicant did not respect the deadlines for transmitting her grievances to the final level of the grievance procedure and to adjudication.

13 The respondent argued that the 14-month delay to transmit the grievances to adjudication was due to the union’s negligent actions or inactions. The onus was on the applicant to justify her request to extend the time limits, and she did not meet it. The applicant did not exercise due diligence. She could have inquired into the status of her grievances, but she did not.

14 The respondent referred me to Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1.

III. Reasons

15 The applicant admits that she was late transmitting her grievances to the final level of the grievance procedure and to adjudication. The parties do not agree on the method of calculating the time limits for transmitting the grievances to the final level of the grievance procedure. However, considering that the parties agreed that there was a 14-month delay in referring the grievances to adjudication, my analysis will focus on that delay in deciding whether I allow the applications for extensions of time.

16 The criteria to be considered when deciding whether an extension of time should be granted are outlined in Schenkman. They are the following:

• clear, cogent and compelling reasons for the delay;
• 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 the extensions; and
• the chances of success of the grievances.

17 Those criteria have been applied recently in decisions such as Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92, Salain v. Canada Revenue Agency, 2010 PSLRB 117, Prévost v. Office of the Superintendent of Financial Institutions, 2011 PSLRB 119, and Lagacé v. Treasury Board (Immigration and Refugee Board), 2011 PSLRB 68. However, those criteria are 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.

18 The applicant stated that the 14-month delay transmitting the grievances to adjudication was due to the newly elected grievance coordinator, who did not provide the union office with the required paperwork on time. No other reasons were raised by the applicant to explain the delay. In addition, the respondent did not question or challenge the veracity of that reason.

19 The applicant did not convince me that she had a clear, cogent and compelling reason to explain the 14-month delay referring her grievances to adjudication. In fact, the delay is entirely attributable to the union and to the fact that the applicant did not inquire into what was happening with her grievances. Had she been more diligent, she would have realized at some point that the grievances had not been referred to adjudication. The union’s omission, negligence or mistake is not a cogent and compelling reason for extending the time. No jurisprudence was submitted to support such proposition. The applicant or her union were not prevented from referring the grievances to adjudication. They were simply negligent, and they did not do it within the legal time frame. In that respect, the applicant and her union cannot be considered as two separate entities as implied by the applicant’s argument that she should not “pay” for her union’s omissions.

20 If the delay is not justified by clear, cogent and compelling reasons, the other factors are of little relevance. Otherwise, as I wrote in Lagacé, “[w]hat 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 the extensions of time, then, would amount to not respecting the agreement entered into by the parties to the collective agreement. That is certainly not what paragraph 61(b) of the Regulations was drafted for.

21 According to the collective agreement, the employer normally has to reply to an employee’s grievance at the final level within 30 days. According to the applicant it does not usually respect that deadline. That issue is for another hearing or forum. If the employer does not respect the intent of the collective agreement in one instance, it does not automatically give new rights or extend the rights given to employees under the collective agreement or the Regulations. An employee, in the absence of a timely response on the employer’s part, has the right to process his or her grievance to the next level and pursue their rights.

22 There was no clear, cogent and compelling reason to support the applications. Furthermore, the delay was 14 months, and the applicant lacked diligence by not inquiring into the situation. I tend to agree with the applicant that she will suffer more prejudice than the employer by having her applications dismissed. However, that point cannot supersede the fact that she had no clear, cogent and compelling reasons to justify the delay, has allowed a lengthy period to elapse and not proven due diligence on her part. As far as the chances of these grievances succeeding, it is almost impossible to assess without hearing them and this criterion played no role in my determination.  

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

IV. Order

24 The applications for extensions of time are denied.

25 The grievances in PSLRB File Nos. 566-02-6342 and 6374 are closed.

October 15, 2012.

Renaud Paquet,
Vice-Chairperson