FPSLREB Decisions

I. Application before the Chairperson

1 On February 9, 2009, Kevin Kunkel (“the applicant”) filed two grievances against the Treasury Board (Correctional Service of Canada) (“the respondent”). One of the grievances dealt with the applicant’s suspension for three shifts and the other one alleged the violation of natural justice principles and also alleged that the respondent had failed in its duty to act fairly when it suspended him for those three shifts.

2 On May 26, 2011, the respondent objected to the referral to adjudication of the grievances on the basis that they were not timely. The respondent contended that the applicant transmitted his grievances to the final level of the grievance process on May 6, 2010 but that he referred them to adjudication only on May 9, 2011. Although the respondent issued its final level response on March 14, 2011, it argued that, as per subsection 90(2) of the Public Service Labour Relations Board Regulations (“the Regulations”), the applicant had 40 days, from the day that the respondent could have replied at the final level as per the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN (expiry date: May 31, 2010 “the collective agreement”).

3 More specifically, the respondent stated that, under clause 20.13 of the collective agreement, the respondent normally has to reply within 30 days after the grievance is presented at the final level of the grievance process. In this case, the grievances were presented on May 6, 2010 at the final level. Therefore, the respondent maintained that, even if it did not respond within the 30 days, the deadline at the final level was nevertheless June 18, 2010, from which the applicant had 40 days to refer the grievances to adjudication. Their referral to adjudication on May 9, 2011 was therefore untimely by almost 11 months. Alternatively, the respondent argued that the referrals were untimely even if the starting point is taken as March 14, 2011, the date on which it effectively responded, since the grievance was referred only on May 9, 2011, which is beyond the 40 days. In that scenario, the delay is 2 days.

4 In a letter to the Public Service Labour Relations Board (“the Board”) dated June 9, 2011, the applicant’s representative acknowledged that the grievances were untimely. However, she submitted that this was due to an oversight by the applicant’s bargaining agent and that the applicant “…should not be negatively affected by the bargaining agent’s error.” She requested an extension of time for both grievances pursuant to section 61 of the Regulations.

II. Summary of the evidence

5 On August 26, 2011, the Board informed the parties that the two requests for extensions of time would be dealt with through written submissions and that the parties were invited to submit additional representations on the issue.

III. Summary of the arguments

A. Applicant’s submissions

6 On September 16, 2011, the applicant’s representative submitted that the grievances dealt with a serious matter that could affect his future. She also stated that the respondent would suffer no prejudice if these grievances were heard on their merits. In support of this argument on the issue of prejudice, it was submitted that as per the collective agreement, any disciplinary document on the respondent’s file should be destroyed two years after the disciplinary action was taken. In this case, since the discipline was imposed on him on January 30, 2009, it should have been removed from the respondent’s file, barring any subsequent disciplinary action.

7 Although the applicant’s representative agreed with the respondent that the delay referring the grievances to adjudication was lengthy, she submitted that it resulted from a misunderstanding of the collective agreement. The applicant thought that, to be referred to adjudication, a grievance had first to be answered at the final level of the grievance process. In this case, he filed his grievances at the third level on May 6, 2010. He received the respondent’s reply only on March 14, 2011, which is when he thought that he ought to refer his grievances to adjudication. Moreover, the applicant also thought that, since he was on an assignment in another bargaining unit, his grievances where held in abeyance during that period.

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

B. Respondent’s submissions

9 Further to its letter of May 26, 2011, the respondent, in submissions dated October 6, 2011, referred me to Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, which elaborated the factors to consider when deciding whether to grant an extension of time.

10 The respondent disagreed with the applicant’s position that he misunderstood the language of the collective agreement about the time limit to refer a grievance to adjudication. The respondent submitted that the applicant is a long–standing member of the Warkworth Institution Executive Committee for the bargaining agent and that he once held the position of President of the local. Therefore, he should have known of the applicable time limits. Moreover, the respondent submitted that, in 2002, the bargaining agent distributed the Shop Stewards Handbook, which refers to the importance of respecting time limits when dealing with grievances. The respondent included a copy of the handbook in its submissions.

11 As for the applicant’s argument that, if the discipline grievance cannot be heard on the merits, it could prejudice his future career opportunities, the respondent contended that, since the discipline was imposed, the applicant has been given two acting opportunities at a higher level. Finally, the respondent concluded that the applicant did not provide clear and cogent reasons for the delay.

C. Applicant’s rebuttal

12 On October 13, 2011, the applicant’s representative replied by reiterating that the events of this case occurred when many changes were happening in the leadership of the bargaining agent local and at a time when the applicant was on assignment outside the bargaining unit and under the mistaken impression that timelines were suspended. It also stated that the respondent’s submissions are accurate and that their validity is not in dispute. However, it concluded by noting that no evidence had been adduced about the prejudice to the respondent if the applicant’s requests for extension were granted.

IV. Reasons

13 As the applications for extension of time have been grouped and addressed by the parties as one submission, I have decided to issue one decision for both.

14 It has been well established by the Board’s jurisprudence that the following criteria ought to be considered when deciding whether an extension of time should be granted. The criteria 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 and;
• the chances of success of the grievance.

15 Those criteria were first applied in Schenkman. They have recently been applied in decisions such as Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92, and Prévost v. Office of the Superintendent of Financial Institutions, 2011 PSLRB 119. In Lagacé v. Treasury Board (Immigration and Refugee Board) 2011 PSLRB 68, while considering those criteria, the Vice-Chairperson stated that “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.” I agree with these comments.

16 I would also like to point out, as did the Vice-Chairperson in Salain v. Canada Revenue Agency, 2010 PSLRB 117, at paragraph 46, that “time limits are meant to be respected by the parties and should be extended in exceptional only circumstances. Those circumstances always depend on the facts of each case”. In Lagacé, it was pointed out that the time limits negotiated by the parties need to be respected and extended only for exceptional reasons.

A. Clear, cogent and compelling reasons for the delay

17 There is no dispute between the parties that both referrals to adjudication were untimely since they were not referred within the 40 days specified in section 90 of the Regulations, which reads as follows:

90.(1) Subject to subsection (2), a grievance may be referred to adjudication no later than 40 days after the day on which the person who presented the grievance received a decision at the final level of the applicable grievance process.

(2) If no decision at the final level of the applicable grievance process was received, a grievance may be referred to adjudication no later than 40 days after the expiry of the period within which the decision was required under this Part or, if there is another period set out in a collective agreement, under the collective agreement.

18 On the issue of calculating the delay, I have concluded that it is immaterial, for the purpose of this decision, whether the grievance was referred to adjudication 11 months late or only 2 days late. Therefore, I will not decide the issue of when the time limits for referral begin to run.

19 The applicant’s explanation for the delay in referring the grievances to adjudication is essentially that it was due to an oversight on the part of the bargaining agent and that the applicant thought that his grievances were held in abeyance while he was on assignment outside the bargaining unit. The applicant, the bargaining agent submitted, also thought that he had to wait for the respondent’s final level response before seizing the Board with his grievances and stated that key leadership positions within the bargaining agent were being reviewed.

20 Finally, it was submitted that the applicant’s future would be impacted if the merits of his grievances were not dealt with, but that the respondent would suffer no prejudice even if the requests for extensions were granted.

21 Turning to the evidence, I find that even if, as argued by the applicant’s representative the late referral was an oversight by the bargaining agent and that the applicant misunderstood the timeline to refer a grievance , these are, considering the facts of this case, unsatisfactory explanations for the delay that do not justify an extension of time. In the present case, mistaken assumptions cannot be the basis for extending timelines.

22 In my opinion, the fact that the Act speaks clearly to situations where the employer does not respond to a grievance makes the explanations of the bargaining agent and the applicant, when taken together, such that they do not, in this case, provide a cogent and compelling reason to extend the time limits. While it might do so in other cases where the bargaining agent’s reason for inaction was reasonable and where the grievor involved was completely blameless for the error, this is not such a case. The applicant’s bargaining agent is a sophisticated union which possesses years of experience in the representation of members of the CX bargaining unit, both under this Act and under its predecessor. Combined with the clear wording of the Act with respect to time limits and referring grievances to the next level in the event of a failure of the employer to respond within the time limits, the explanation offered by the bargaining agent is not cogent and compelling.

23 As for Mr. Kunkel’s explanation that he misunderstood the timelines applicable, I do not find it convincing. As a grievor, he should have informed himself of the rules applicable to the grievance process. Moreover, the Shop Stewards Handbook, filed by the respondent on October 6, 2011 is quite clear, at page 20 and 22, about the importance of time limits when filing a grievance and about the consequences of not filing on time. Although there is no direct evidence that the applicant, as a former President of local, knew of the Shop Stewards Handbook, I must point out that it was not in dispute that he knew of it. As a matter of fact, in its submission dated October 13, 2011, the bargaining agent did not challenge that allegation when it stated “… to the best of my knowledge the employer’s submissions are accurate and I am not disputing their validity.”

24 As for the argument that the applicant thought that he needed to wait for the respondent’s final response before referring the grievances to adjudication, I am not convinced that this argument works in his favour since, as stated earlier, his referrals would still be late if the date on which the respondent issued its decision was the date from which the 40–day time limit were calculated.

25 In conclusion I find that the applicant has not demonstrated a clear, cogent and compelling reasons for granting an extension of time.

B. The length of the delay

26 With respect to that criterion, since I have already decided not to pronounce myself on how long the delay is, I do not take this factor into consideration.

C. The due diligence of the applicant

27 The due diligence of the applicant has not been demonstrated in this case. As stated above, Mr. Kunkel and his bargaining agent should have informed themselves of the rules applicable to the grievance process.

D. Balancing the injustice to the applicant against the prejudice to the respondent

28 While the respondent has not indicated to what extend allowing the extension of time would prejudice its interest, I note the reference to the fact that the suspension should now have been removed from the applicant’s personal file and the absence of any submission to the contrary. Moreover as stated in the respondent’s submission dated October 6, 2011, the applicant, since being disciplined for three shifts, has been given acting assignments in higher positions. In the circumstances, I cannot conclude that by not granting the extension of time, the applicant would be unfairly prejudiced.

E. Chance of success of the grievance

29 Finally, concerning the last criteria which involves and analysis of the chances of success of the grievance, I agree with the Vice-Chairperson in Featherston v. Deputy Head (Canada School of Public Service ) and Deputy Head (Public Service Commission), 2010 PSLRB 72, that that criterion might be relevant for a grievance that appears trivial or vexatious. No such argument was made in these proceedings.

[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.

Therefore I will not consider that criterion.

30 Of the five criteria enumerated in Schenkman, two predominated in the analysis of this request for extension: clear, cogent and compelling reasons for the delay and the due diligence of the applicant. On these two criteria, the applicant has not persuaded me that this is a case in which I should exercise my discretion to extend the time limits for referral. Two other criteria I have found to be inapplicable and on the last criteria of prejudice, I again conclude that the circumstances are not such that they permit or compel me to exercise my discretion in favour of granting an extension.

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

V. Order

32 The applications for extensions of time are denied.

33 The grievances files PSLRB Nos. 566-02-5330 and 5331 are closed.

March 5, 2012.

Linda Gobeil,
Vice-Chairperson