FPSLREB Decisions

I. Application before the Chairperson

1 Lyne Brassard (“the applicant”) worked as an executive assistant for the Department of Public Works and Government Services (“the respondent” or “the employer” or PWGSC) in Gatineau, Quebec. The respondent terminated her employment on June 28, 2011, before the end of her 12-month probation. On July 5, 2011, Ms. Brassard filed a grievance against the employer’s decision to terminate her employment. That grievance was denied by the employer at each level of the grievance procedure. Ms. Brassard received the final-level grievance reply on December 21, 2011.

2 Ms. Brassard should have referred her grievance to adjudication within 40 days of receiving the final-level reply pursuant to subsection 90(1) of the Public Service Labour Relations Board Regulations (“the Regulations”). That means that the grievance should have been referred to adjudication on January 30, 2012 at the latest. However, that was first done on September 25, 2012 on the wrong form alleging a violation of the collective agreement. Ms. Brassard is not represented by her bargaining agent. The Public Service Labour Relations Board (“the Board” or “the PSLRB”) advised her on September 27, 2012 that she could not refer a grievance related to the interpretation of the collective agreement without the support of the bargaining agent. On October 11, 2012, Ms. Brassard referred her grievance to adjudication again as a termination grievance. She also applied for an extension of time.

3 Pursuant to section 45 of the Public Service Labour Relations Act (“the Act”), the Chairperson of the PSLRB 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 any matter relating to an extension of time in this case.

II. Summary of the evidence

4 Ms. Brassard wanted to pursue her grievance to adjudication after it was rejected at the final level of the grievance procedure. However, on January 16, 2012, an analyst of her bargaining agent, the Public Service Alliance of Canada (PSAC), informed her by letter that the PSAC was not supporting the referral of her grievance to adjudication and that it would not represent her at that level. The PSAC analyst also stated that Ms. Brassard could refer the grievance to adjudication herself and that she must do so by January 30, 2012. She also provided the Board’s mailing address as well as the website address where the form to refer the grievance to adjudication could be found. Lastly, she stated that the PSAC could contact the employer to try to obtain an extension of time to refer the grievance to adjudication.

5 After receiving that letter from the PSAC, Ms. Brassard testified that she was very upset and felt alone in defending herself against her employer. She did not understand some of the legal jargon contained in the PSAC letter, and she did not have the necessary financial resources to consult a lawyer at the time. Her health was also severely affected by what had happened with her employer and the termination of employment. She was seen on a regular basis by a physician. She felt depressed, had suicidal thoughts and suffered from eczema and impetigo.

6 Ms. Brassard stated that she began feeling better in June 2012. At that time, she found a job and her financial situation started to improve.

7 On January 27, 2012, Ms. Brassard filed a complaint to the Canadian Human Rights Commission (CHRC) against two of her former managers at PWGSC. On July 4, 2012, the CHRC wrote to Ms. Brassard asking her to make a detailed submission by August 6, 2012 on some aspects of her complaint. Ms. Brassard decided to seek legal advice in order to properly answer the CHRC request. In her answer, which she submitted on August 6, 2012, she stated among other things that she planned to pursue recourse with the PSLRB. She also asked that the CHRC’s decision on her complaint be postponed until the PSLRB rendered its decision on the matter. Ms. Brassard testified that she got help from Yavar Hameed in writing the August 6, 2012 letter to the CHRC.

8 In late fall 2011, Ms. Brassard filed an application to the Quebec Court against her former managers at PWGSC for defamation. Ms. Brassard appeared before the Court on January 24, 2012. That Court decided to refer the matter to the Quebec Superior Court. The Superior Court heard the case on April 23, 2012, and dismissed Ms. Brassard’s application for lack of jurisdiction.

9 On March 28, 2012, Ms. Brassard filed an unfair labour practice complaint against her bargaining agent for refusing to refer her grievance to adjudication. She filed her complaint to Quebec’s commission des relations du travail, which stated that it did not have jurisdiction to rule on a federal government employee’s complaint.

10 On August 24, 2012, Ms. Brassard applied to the Commission de la santé et de la sécurité au travail for workers’ compensation benefits for the period following her employment with PWGSC. Her claim was denied.

11 Ms. Brassard decided in August 2012 that she would pursue her July 5, 2011 grievance with the PSLRB, meaning that she would ask that it be referred to adjudication. She testified that, before talking to her counsel, it never crossed her mind that she could refer that grievance to adjudication. Instead, at that time, she believed that her CHRC complaint was the best way to get the matter resolved. She also testified that, if she had received legal advice before, she might have proceeded differently.

12 Ms. Brassard admitted that she had some knowledge of the PSLRB and of its procedures. In 2009, she had filed a grievance from previous employment to another federal government department. The employer in that case argued that the grievance was late. Ms. Brassard applied for an extension of time. Her case was heard on November 21, 2011 and her application was denied on January 26, 2012 (Brassard v. Deputy Head (Department of Foreign Affairs and International Trade), 2012 PSLRB 11).

III. Summary of the arguments

A. For Ms. Brassard

13 Ms. Brassard argued that she had a clear, cogent and compelling reason for the delay in filing her grievance.

14 Ms. Brassard stated that she had always intended to pursue her grievance. When she was informed by her bargaining agent that it would not pursue her grievance, she had no financial resources to seek legal advice. She was also severely ill and did not have the energy to pursue her grievance on her own. She was in distress and was left with one week to act and meet the deadline to refer her grievance to adjudication. Further, between January and June 2012, she had no financial resources to seek legal advice.

15 Ms. Brassard argued that allowing the application for an extension of time does not prejudice the employer. The matter is still before the CHRC. The only thing the employer is doing is trying to block Ms. Brassard from exercising any recourse against it in raising technical issues.

16  Ms. Brassard argued that, after she consulted a lawyer in late July 2012, she acted diligently. She first took care of the response that she had to submit to the CHRC by August 6, 2012. Shortly after, she referred her grievance to adjudication and applied for an extension of time. She needed legal advice to refer her grievance to adjudication and to apply for an extension of time. She did it shortly after receiving such advice.

17 Ms. Brassard referred me to Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1.

B. For the respondent

18 Counsel for the respondent argued that Ms. Brassard does not have a cogent, clear and compelling reason for being late in referring her grievance to adjudication. Consequently, her application should be denied.

19 Counsel for the respondent argued that Ms. Brassard did not produce any medical evidence that she was incapable of acting and of going to the PSLRB website to find the information that she needed to refer her grievance to adjudication. There was no cost involved and she did not require legal counsel to do so.

20 Counsel for the respondent argued that Ms. Brassard was capable of acting between January and October 2012. She pursued her complaint to the CHRC and made a detailed submission to it in August 2012. She also filed an unfair labour practice complaint against her bargaining agent in March 2012, and pursued a defamation legal action against her former managers to as late as April 2012. Further, in August 2012, she applied for workers’ compensation benefits.

21 Counsel for the respondent also argued that Ms. Brassard was more than eight months late in referring her grievance to adjudication. She did not act diligently.

22  Counsel for the respondent referred me to Schenkman; Lagacé v. Treasury Board (Immigration and Refugee Board), 2011 PSLRB 68; Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92; and Rouleau v. Staff of the Non-Public Funds, Canadian Forces, 2002 PSSRB 51.

IV. Reasons

23 There is no dispute between the parties on the facts of this case. Ms. Brassard should have referred her grievance to adjudication on January 30, 2013 at the latest. She did this more than eight months after that deadline. She requested an extension of time so that her grievance could be considered as being properly referred to adjudication.

24 Applications for extensions of time are made under section 61 of the Regulations, which reads 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,

1. by agreement between the parties; or
2. in the interest of fairness, on the application of a party, by the Chairperson.

25 The criteria to consider 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 extension; and
• the chances of success of the grievance.

26 Those criteria are not always of equal importance. If there are no clear, cogent and compelling reasons for the delay, then the length of the delay, the diligence of the applicant, the balancing of the injustice to the applicant against the prejudice to the respondent and the chances of success of the grievance would not matter that much in most cases. A solid reason is needed for the delay. The Board has consistently taken that approach in the past two years (see, for example, Lagacé or Callegaro v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 110). Furthermore, as I wrote in Copp v. Treasury Board (Department of Foreign Affairs and International Trade), 2013 PSLRB 33, in the past, the Board rarely agreed to grant extensions of time without clear, cogent and compelling reasons justifying the delay.

27 In her evidence, Ms. Brassard did not raise anything to convince me that she had a clear, cogent and compelling reason for justifying why she was late by more than eight months in referring her grievance to adjudication. She testified that she was sick in early 2012 and that her health improved in June when she went back to work. On this point, I believe her testimony even though she did not produce medical evidence. However, I do not believe that her health situation prevented her from referring her grievance to adjudication. First, her bargaining agent gave her clear and simple instructions as to how to do this. She simply had to follow those instructions. Second, she knew the adjudication process since she was exposed to that process in the past. Third, in March 2012, her health was good enough to file an unfair labour practice complaint against her bargaining agent. I also note that, in late January 2012, she filed a complaint to the CHRC and appeared in court in relation to her defamation legal action. These activities occurred in the same general time frame, and that being the case, she could also have referred her grievance to adjudication.

28 Ms. Brassard’s other reason given to justify her tardiness in referring her grievance to adjudication was that she needed legal advice and that she could not afford to pay for it. That it is not a cogent and compelling reason for the delay. First, Ms. Brassard did not necessarily need legal advice to complete a form to refer her grievance to adjudication. Second, the time cannot be automatically extended on the basis that people do not have money to pay for lawyers.

29 Ms. Brassard argued that she referred her grievance to adjudication only a few weeks after she asked for legal advice. That is not how the time should be calculated. Instead, the clock started to run the day after the day on which Ms. Brassard received the decision at the final level of the grievance process, not when she first met with Mr. Hameed in late July or early August 2012. The delay was significant. Even after she first met with Mr. Hameed, Ms. Brassard did not act diligently since she waited several more weeks to refer her grievance to adjudication. Her own evidence is that she had already decided in early August 2012 that she wanted to refer her grievance to adjudication but she did so in October 2012.

30 I cannot comment on the merits of Ms. Brassard’s grievance because I have not heard the evidence on it. However, it does not matter that much. Without clear, cogent and compelling reasons justifying the delay, I would not grant an extension of time on the basis that the grievance might have some merit. That would supersede the Regulations, which state that grievances must be referred to adjudication 40 days after the day on which the grievor received a decision at the final level of the applicable grievance process. The same logic applies to balancing the prejudice to the parties. Even if I believed, in this case, that the prejudice to Ms. Brassard is greater in denying her application than it would be to the employer if I accepted it, I would still deny the application since there is no clear, cogent and compelling reason to explain the delay.

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

V. Order

32 The application for an extension of time is denied.

33 The grievance in PSLRB File No. 566-02-7701 is closed.

September 9, 2013.

Renaud Paquet,
Vice-Chairperson