FPSLREB Decisions

I. Application before the Chairperson

1 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.

II. Summary of the evidence

2 On December 14, 2010, the Public Service Alliance of Canada (“the bargaining agent”) referred Mojdeh Hendessi’s (the applicant’s) grievance to the Public Service Labour Relations Board (“the Board”). The grievance dealt with the termination of the applicant’s employment and the alleged denial by the Canada Border Services Agency (CBSA) to allow for union representation at the applicant’s disciplinary hearing. That denial of union representation was alleged to be in violation of clause 17.02 of the collective agreement between the Treasury Board (“the respondent”) and the Public Service Alliance of Canada for the Program and Administrative Services Group (expiry date: June 20, 2011; “the collective agreement”). The grievance reads as follows:

I grieve that the employer has terminated my employment and that I was denied union representation when it was requested in violation of 17.02 of the collective agreement.

Corrective action requested

I request that I be reinstated, that the discipline be rescinded, that I be repaid all lost pay and benefits with interest and any other corrective action appropriate in the circumstances.

3 In a letter to the Board of January 13, 2011, the respondent objected to the Board’s jurisdiction to hear the part of the grievance about the alleged violation of the collective agreement because that part was referred to adjudication outside the prescribed time limits. The respondent argued that it replied at the final level of the grievance process on October 5, 2010 and that, pursuant to subsection 90(1) of the Regulations, the applicant then had 40 days to refer the matter to adjudication. The respondent contended that the grievance was referred to adjudication only on December 14, 2010; 30 days after the time limit set out in the Regulations expired.

4 On January 31, 2011, the applicant replied that the CBSA had agreed to extend the time limit to December 14, 2010 and that, therefore, the grievance is timely. In support of its argument, the bargaining agent submitted a form signed on November 9, 2010 by Pierre Fréchette of the CBSA entitled “Extension of Time Limits from CBSA”. Below the title of the form are several one-line pieces of information, such as the grievor’s name, classification and work location, the grievance number, the nature of the grievance, the current deadline, the date requested for extension and the reason for the extension. At the bottom of the page there is a line for the date and the signature of the individual granting the extension. The form indicates that it applies to a single grievance (the departmental grievance number is indicated) and in the line which requires that the “Nature of the Grievance” be indicated, the bargaining agent had written “Termination” and “Revocation of Reliability status”.

5 On February 10, 2011, the respondent replied that the applicant had filed three grievances, one about her termination, one about the revocation of her reliability status and one about the denial of representation. On behalf of the Treasury Board, the respondent took the position that, although CBSA’s deputy head has the authority to grant an extension of time for the first two grievances and that it might have done so, granting an extension for the third one, which is about a collective agreement interpretation, was the respondent’s prerogative. As such, it never was granted.

6 In support of its position on behalf of the Treasury Board, counsel attached a copy of the form referred to above in paragraph 4, and signed by Mr. Fréchette on November 9, 2010. This form also contains handwritten additions to the typed portions of the form, some of them additions by the employer but most were added by the bargaining agent. The bargaining agent had, on the line requesting information regarding the nature of the grievance, added in the handwritten phrase, “as well as art.17-Union Representation at Discipline Hearing”. At the bottom of the page, underneath the signature of Mr. Fréchette, the bargaining agent had also added the handwritten phrase “as well as extension granted by TB (per CBSA agreement)”. Next to that line, Mr. Jeff Laviolette, on behalf of the Treasury Board, had signed “not granted” on December 14, 2010.

7 On March 7, 2011, the bargaining agent replied that only a single grievance was filed, not three, and explained that some requests for extensions are sent to both the relevant department and the Treasury Board, while some are sent only to the department, in this case the CBSA.

8 On December 14, 2010, the last day to which the CBSA agreed for the extension, the bargaining agent realized that it needed the Treasury Board’s agreement for the collective agreement violation part of the grievance. Despite the CBSA’s agreement to extend the time for the termination part of the grievance, the Treasury Board refused to grant the extension request for the collective agreement portion of the grievance.

9 As a result, the bargaining agent requested an extension of time from the Board under paragraph 61(b) of the Regulations to refer to adjudication the part of the grievance that deals with the alleged collective agreement violation.

10 The bargaining agent called one witness and submitted five exhibits. The respondent called one witness and filed three exhibits. Both parties made opening statements.

A. For the bargaining agent

11 Jerry Kovacs testified for the applicant. Mr. Kovacs works as a grievance and adjudication analyst for the bargaining agent. Part of his function is to review files sent by the components and to decide whether to send them to adjudication before the Board. Mr. Kovacs indicated that the workload is very heavy. Currently, he is dealing with approximately 150 files. He also indicated that almost every file needs an extension of time to be referred to adjudication.

12 With respect to this grievance, Mr. Kovacs recalled that, when he received it, he knew that he would need time to analyze it. Therefore, he and his assistant, Chems Oka, asked for an extension of time from the CBSA for the termination part of the grievance. Mr. Kovacs indicated that, although they covered only part of the grievance with their request, he always intended to refer the entire grievance to adjudication, including its collective agreement violation part.

13 Mr. Kovacs testified that, although the deadline for filing the grievance was November 14, 2010, Ms. Oka sent the request for an extension of time form (Exhibit G‑1) to the CBSA for approval on November 9, 2010, a few days before the deadline. The request referred only to the applicant’s termination and to the revocation of her reliability status and requested an extension of time to December 14, 2010.

14 On November 9, 2010, Mr. Fréchette, on behalf of the CBSA, approved the extension of time request until December 14, 2010 and sent it back to Mr. Kovacs (Exhibit G-2).

15 Mr. Kovacs testified that, once he received Mr. Fréchette’s agreement, and as the deadline of December 14, 2010 approached, he reviewed the file further and decided that a Form 20, for the alleged collective agreement violation, and a Form 21, for the termination, should be sent to the Board. Mr. Kovacs explained that, even though one grievance covered both allegations, the Board requires filing two different forms. In coming to this realization, Mr. Kovacs also realized that he would need to obtain the agreement of the respondent to the extension of time. In such a situation, Mr. Kovacs explained that the convention between the bargaining agent and the respondent is that requests for extensions of time are sent both to the Treasury Board and to the department, the CBSA in this case, for agreement. The extension request for the collective agreement violation part of the grievance was sent on December 14, 2010 to the Treasury Board for its agreement. The extension request for the termination part of the grievance had already been made to the CBSA. The request sent to the Treasury Board asked for December 14, 2010 as the new deadline, similar to the one agreed to by the CBSA. The same day, and despite the fact that the CBSA had already agreed, the Treasury Board replied that it refused to extend the time to December 14, 2010 for the collective agreement violation part of the grievance (Exhibit G-4).

16 Mr. Kovacs indicated that at no point was the applicant involved in the discussion about the extension request. He recalled that, once in the past, a department’s agreement had been required after the Treasury Board had already agreed to a request for extension. The department did not object and had granted the request.

B. For the Respondents

17 Jan Brock testified on behalf of the respondents. Ms. Brock is Chief, Commercial Operations, Pacific Highway District, CBSA. She has been in that position for 21 years.

18 Ms. Brock indicated that she knows the applicant and that the applicant reported to her indirectly. Ms. Brock testified about a meeting with the applicant involving her bargaining agent representative that took place on June 3, 2009.

19 Although Ms. Brock’s testimony dealt with the substance of the meeting of June 3, 2009, in which it is alleged that the collective agreement violation occurred, her testimony did not cover the specific issue of the timeliness of the grievance, which led to the request for an extension of time. In fact, Ms. Brock confirmed in cross-examination that she has not been involved with the issue of the timeliness of the grievance’s referral to adjudication and that she is not aware of it.

III. Summary of the arguments

A. For the applicant

20 The applicant’s representative argued that the grievance was timely in that the events of the June 3, 2009 meeting were fundamental for the disposition of the termination part of the applicant’s grievance. It contended that those events were integral to the termination part of the grievance and could not be separated from it. The CBSA extended the deadline to refer that part of the grievance to adjudication.

21 The applicant’s representative argued that, alternatively, if the bargaining agent missed the deadline to submit the collective agreement violation part of the grievance to adjudication, the applicant is blameless and should not be punished for the oversight.

22 Furthermore, the applicant’s representative argued that the respondent has suffered no prejudice and that, were the applicant prevented from referring to the events of the June 3, 2009 meeting, it would remove part of her defence.

23 Reviewing the criteria elaborated in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, the applicant’s representative contended that there is a clear, cogent and compelling reason for the delay; it was a simple administrative error by the bargaining agent. He also contended that the length of the delay is not onerous, that the bargaining agent acted with due diligence and that the applicant would suffer much prejudice were she prevented from referring to what happened at the June 3, 2009 meeting.

24 The applicant’s representative referred me to Rabah v. Treasury Board (Department of National Defence), 2006 PSLRB 101; Perry v. Canadian Institutes of Health Research, 2010 PSLRB 8; and Riche v. Deputy Head (Department of National Defence), 2010 PSLRB 107.

B. For the respondents

25 The respondents’ representative argued that the request for an extension of time be dismissed since no clear, cogent and compelling reason for it was established. The introduction of the Public Service Modernization Act, S.C. 2005, c. 22, ss. 12, 13, in 2005, clarified the distinct authorities of the deputy head of a department and the Treasury Board. For instance, for a collective agreement interpretation, the Treasury Board as the employer clearly has authority. Moreover, in this case, the parties had agreed to a convention in which, in the case of a need for an extension of time for a grievance about a collective agreement interpretation, the Treasury Board grants or denies the request as the employer, not the CBSA. The CBSA’s agreement to extend the time for the termination part of the grievance is irrelevant.

26 The respondents’ representative also argued that, for the sake of harmonious labour relations, time limits ought to be respected, which should trump any injustice to the applicant.

27 The respondents’ representative contended that the only reason for the late referral is the bargaining agent’s administrative error. It is not clear and cogent. It is not enough to justify the Board’s intervention. Moreover, the error was discovered on the very last day of the extension agreed to by the CBSA, i.e., December 14, 2010. Never before that date did the bargaining agent consider that the collective agreement had been violated.

28 The respondents’ representative argued that clause 18.22 of the collective agreement, which deals with agreements between the parties to extend time limits, ought to be given some meaning. It would be wrong if a mere administrative error overrode what the parties agreed to.

29 The respondents’ representative maintained that, although the Treasury Board may suffer only slight prejudice were the extension of time granted, it is important to remember that the prejudice still exists in the sense that the ongoing relationship between the parties will be affected if negotiated time limits are not respected.

30 The respondents’ representative argued that, contrary to Jarry and Antonopoulos v. Treasury Board (Department of Justice), 2009 PSLRB 11, refusing the extension request would not extinguish the applicant’s case. She referred me to Schenkman; Mark v. Canadian Food Inspection Agency, 2007 PSLRB 34; De Franco v. House of Commons, 2010 PSLRB 69; Featherston v. Deputy Head (Canada School of Public Service) and Deputy Head (Public Service Commission), 2010 PSLRB 72; Salain v. Canada Revenue Agency, 2010 PSLRB 117; Brady v. Staff of the Non-Public Funds (Canadian Forces), 2011 PSLRB 23; Lagacé v. Treasury Board (Immigration and Refugee Board), 2011 PSLRB 68.

B. Bargaining agent’s rebuttal

31 In its response, the bargaining agent contended that the CBSA’s agreement to the time extension should be considered. In addition, no evidence was adduced that the relationship between the parties would be adversely affected were the extension granted and that, contrary to the respondents’ argument, the relationship between the parties would be adversely affected were the time extension not granted.

32 The applicant’s representative submitted that the original grievance was filed in June 2009, well before the request for an extension of time was filed for the collective agreement violation part of the grievance. The respondent was not taken by surprise when the application for an extension of time was made on December 14, 2010.

33 Finally, the applicant’s representative submitted that, if the request for an extension of time is denied, the applicant’s right to representation will be extinguished.

IV. Reasons

34 Although I agree with respondent’s representative that negotiated time limits ought to be respected, in my view, the Board should exercise its discretion under paragraph 61(b) of the Regulations in this case.

35 On balance, my assessment of the Schenkman criteria leads me to determine that the application for an extension of time should be granted.

A. Clear, cogent and compelling reason

36 In my view, from the very beginning, the applicant was very clear in her grievance about the fact that she was grieving, in addition to her termination, the denial of representation at the disciplinary hearing. It is not disputed that the disciplinary hearing referred to in the applicant’s grievance is related to the events of her termination.

37 As argued by the applicant’s representative, the Treasury Board, as the employer, was never taken by surprise by the applicant’s allegation of a collective agreement violation.

38 In his testimony, Mr. Kovacs indicated that he always intended to refer both allegations to adjudication. He indicated that only when he realized that he had to send two different forms to the Board did he and his assistant also realize that they needed the Treasury Board’s agreement to extend the time for part of the grievance. While normally, I do not believe that a bargaining agent’s oversight is a valid justification to grant an extension of time, I must say that in this case the circumstances are unique.

39 This is a case where, from the very beginning the applicant made it clear that she was grieving her termination and the alleged violation of the collective agreement. Not only this was done from the outset of the grievance process but it was also done with the express knowledge of the Treasury Board. In addition, the applicant is totally blameless for the oversight and the Treasury Board did not demonstrate any prejudice if the request for extension was granted. In my view, the facts of this case are distinguishable from those set out in other jurisprudence. In this case, the applicant has established a compelling explanation for the delay.

40 Turning to the length of the delay, the evidence demonstrated that Mr. Kovacs’ assistant asked for the Treasury Board’s agreement on December 14, 2010, which was 30 days after the time limit in the Regulations expired but was the day to which the CBSA had agreed to extend the time limit for the termination part of the grievance.

41 Although I do not find that the 30-day delay was onerous, I note that the extension requested of the Treasury Board was for the same amount of time to which the CBSA had already agreed. On that point, although I recognize that the Treasury Board, as the employer, and the CBSA, a department, are two distinct entities, I must point out that no evidence was adduced to explain why the Treasury Board objected to the extension of time on a corollary issue while the CBSA agreed to extend the time on the broader and more fundamental issue for the applicant of the termination of her employment.

42 On the specific point of the prejudice that granting the extension request would cause, I would add that, despite the able efforts of the respondent’s representative, no evidence was adduced of the prejudice that the Treasury Board would suffer were the request granted.

43 Despite having heard the evidence of Ms. Brock in the context of this application for extension of time, I do not pronounce myself on the relevance or the admissibility of the evidence of the events leading to and including the meeting of June 3, 2009 in any hearing on the merits. It will be addressed in subsequent proceedings.

44 Finally, considering the chances of success of the grievance, I agree with the Vice-Chairperson in Featherston that that criterion might be relevant for a grievance that appears trivial or vexatious.

[Featherston]

The parties agreed that that criterion is difficult to measure in this case. I agree that it is weak and that it matters more when a grievance can be characterized as trivial or vexatious, which is not so in this case. Therefore, I did not rely on that criterion to assess the application.

No such argument was made in these proceedings. Therefore, I will not consider that criterion.

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

V. Order

46 The application for an extension of time is granted.

March 06, 2012.

Linda Gobeil,
Vice-Chairperson