FPSLREB Decisions

I. Application before the Chairperson

1 Maria Copp (“the applicant”) was a passport officer working at the Mississauga, Ontario, office of Passport Canada, which is part of the Department of Foreign Affairs and International Trade (“the respondent”). The applicant was terminated from her position on February 3, 2012 for disciplinary reasons. Later, on March 23, 2012, the respondent decided to revoke the applicant’s reliability status. On February 7, 2012, the applicant grieved the respondent’s decision to terminate her employment and, on April 10, 2012, the decision to revoke her reliability status.

2 Pursuant to section 45 of the Public Service Labour Relations Act (the “Act”), 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 in this case.

3 The applicant is represented by her bargaining agent, the Public Service Alliance of Canada (“the union”).

4 The respondent rejected both grievances at the final-level of the grievance procedure on May 23, 2012. The applicant admitted receiving the final level grievance replies on May 23, 2012. She referred her termination grievance to adjudication on September 21, 2012, and her reliability status grievance on September 24, 2012. The union signed both forms referring these grievances to adjudication.

5 On September 27, 2012, the registry of the Public Service Labour Relations Board (“the Board”) wrote to the applicant and the respondent acknowledging receipt of the referral to adjudication of these two grievances. On October 25, 2012, the respondent objected to the grievances being heard at adjudication as it alleged that they were referred 80 days after the expiry of the deadline to refer them to adjudication.

6 On November 7, 2012, the applicant wrote to the Board and asked that its chairperson grant an extension of time for both grievances pursuant to section 61 of the Regulations. The respondent opposed that request.

II. Summary of the arguments

A. Applicant’s submissions

7 The applicant admitted that she was late transmitting her grievances to adjudication. However, she argued that she was in no way negligent and that she should not be penalized for an administrative error on the part of the union. She believes that granting an extension of time would not prejudice the respondent, which would not suffer any particular hardship.

8  The applicant explained that, on June 4, 2012, the grievance files were received in the union’s representation section and were entered into the software used by the union to manage its files. The files were inadvertently entered as a single grievance. They were assigned to an analyst for a determination as to whether they should be referred to adjudication. On June 14, 2012, the analyst instructed an administrative assistant to refer the termination grievance to adjudication and to inform the applicant’s representative that the revocation of reliability status grievance would not be referred to adjudication. For reasons that are not clear to the union, only the instructions concerning the non-referral of the revocation of reliability status were carried out on June 20, 2012. Because only one entry was made in the software for the applicant’s case, the administrative assistant did not recognize that a second grievance required action.

9 In early September 2012, the applicant’s union representative contacted the union’s representation section enquiring on the status of the applicant’s termination grievance. This prompted a review of the file, which revealed that the termination grievance had not been referred to adjudication as intended by the union. The union then referred the grievances to adjudication and subsequently requested an extension of time as per section 61 of the Regulations.

10 Throughout this process, the applicant diligently ensured that the union had all the information it needed to process her grievances. She is clearly blameless with respect to the failure to refer the grievances to adjudication in a timely manner. The applicant promptly answered all communications from the union throughout the process. She was not informed of the deadlines for referring her grievance to adjudication and would have had no reasonable cause to question whether her termination grievance had not been referred in a timely manner. The applicant is blameless with respect to the failure to refer her grievance to adjudication in a timely manner. The failure to refer the grievances to adjudication is solely the result of the union’s negligence.

11 The reason for the delay referring the grievances to adjudication was the union’s negligence. The applicant committed no error or oversight and is blameless with respect to the late referral of her grievances. The applicant submits that the 80-day delay is entirely attributable to the union and that she had no cause to inquire as to the status of her grievance during that time. She relied on the union to transmit the grievance to each step in the grievance procedure. She diligently cooperated with the union throughout the process. She had no cause to be concerned about the union’s handling of her file.

12 The applicant submits that not granting an extension of time would be a significant injustice to her because she would lose her only recourse to challenge her termination after more than a decade of service with the respondent. Conversely, were the application allowed, there would be little prejudice to the respondent. The 80-day delay is relatively short with respect to the risk of witnesses forgetting important facts. Further, in the circumstances of this case, the investigations leading to the applicant’s termination were extensively documented.

13 The applicant referred me to the following decisions: Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1; and Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 59.

B. Respondent’s submissions

14 The respondent submitted that the applicant and her union had 40 days to assess and determine whether to refer these grievances to adjudication. The main argument put forward by the applicant is that the union committed an error, more precisely an inaccurate entry into its software. Error or negligence by the union is not a clear, cogent and compelling reason for the delay, and there are no other reasons to explain the delay referring the grievances to adjudication.

15 The respondent also submitted that the Board should not give much weight to balancing the injustice to the applicant against the prejudice to the respondent in granting the extension of time. The respondent should be entitled to some certainty in knowing what disputes will be addressed in a timely manner. The seriousness of the consequences for the applicant is no reason to grant the extension of time.

16 The applicant’s request for an extension of time does not meet the factors identified in the jurisprudence.

17 The respondent referred me to Schenkman; Kunkel v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 28; St-Laurent et al. v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 4; Callegaro v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 110; Lagacé v. Treasury board (Immigration and Refugee Board), 2011 PSLRB 68; and Fontaine v. Treasury Board (Canada Border Services Agency), 2012 PSLRB 39.

III. Reasons

18 The applicant admitted that she was late transmitting her grievances to adjudication by some 80 days. She submitted that the delay referring her grievances to adjudication was caused by the union’s negligence. On the delay to refer a grievance to adjudication, subsection 90(1) of the Regulations 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.

19 The applicant argued that she committed no error or oversight and that she is blameless with respect to the late referral of her grievances. She submitted that she had no cause to inquire as to the status of her grievance during that period because, in the past, she had relied on the union to transmit her grievances throughout the grievance procedure. She had no cause to be concerned about the union’s handling of her grievances. She also argued that not granting an extension of time would mean that she would lose her only recourse to challenge her termination.

20 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.

21 Obviously, the parties did not agree to extend the time limit for the applicant to refer her grievance to adjudication. Otherwise, this application would not be in front of me. However, according to paragraph 61(b) of the Regulations, applications to extend time limits can be allowed by the Chairperson of the Board in the interest of fairness. 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.

22 Those criteria are not necessarily equally important. If there are no clear, cogent and compelling reasons for the delay, in most cases, it would not matter that much whether the delay was 40 days or 80 days or whether the applicant was diligent or that refusing to extend the time would create an injustice to the applicant greater than the prejudice to the respondent by allowing the extension. That approach has been consistently taken by the Board in the past two years (see, for example, Lagacé, Kunkel, Callegaro, St-Laurent et al., and Sonmor and Slater v. Treasury Board (Correctional Service of Canada, 2013 PSLRB 20). Prior to the afore-mentioned cases, the Board rarely agreed to grant an extension of time without clear, cogent and compelling reasons.

23 Considering that comment, I will now determine, before going further in my analysis, whether administrative errors by a union representing an employee constitute a clear, cogent and compelling reason to explain the delay in the context of a request for granting an extension of time. That question was examined recently in Kunkel, Callegaro, St-Laurent et al., and Sonmor and Slater.

24 In Kunkel, the late referral to adjudication was the result of an oversight by a new union representative and a misunderstanding of the timeline to refer a grievance to adjudication. The grievance dealt with a three-day suspension. The grievor was 11 months late referring his grievance to adjudication. The Vice-Chairperson concluded that mistaken assumptions cannot be the basis for extending timelines.

25 The Callegaro, St-Laurent et al., and Sonmor and Slater cases also dealt with errors or omissions by the union to refer grievances to adjudication. In each case, the Vice-Chairperson concluded that errors or omissions from the union are not clear, cogent and compelling reasons for justifying not respecting the timelines. In Callegaro, the grievor was 14 months late in referring a 1-day and a 10-day suspension to adjudication because of an omission from the union, in that case, due to changes in union officers. In St-Laurent et al., and in Sonmor and Slater, the grievors were late by a few weeks to refer their grievances to adjudication. Those grievances dealt with alleged violations of the discipline clause or the acting pay clause of their collective agreements. They argued that they were late referring their grievances to adjudication because of an oversight or a clerical error by a union representative.

26 Unfortunately, the consequences of the union’s error in this case are much greater for the applicant than in the cases that I referred to since her grievance involves the termination of her employment. That would certainly have differentiated her case from the other cases had I first concluded that she had clear, cogent and compelling reasons for not referring her grievance to adjudication on time. However, I have concluded that she had none.

27 The applicant did not convince me that she had a clear, cogent and compelling reason to explain the 80-day delay referring her grievance to adjudication. In fact, the delay is entirely attributable to an administrative error of the union. Neither the applicant nor her union were prevented from referring the grievances to adjudication. They simply did not do it within the legal timeframe.

28 The applicant referred me to Thompson. Ms. Thompson grieved her termination of employment more than three months after the time to file a grievance had expired. She stated that the union had filed the grievance on time but that it had stayed on the desk of the respondent’s representative for four months before being processed. The Chairperson did not believe the applicant on that point and found the grievance untimely. He granted the application for an extension of time on the basis that, even if the union were negligent, Ms. Thompson could not be faulted. He stated that the injustice to her of refusing the application outweighed any prejudice that the respondent might suffer for allowing the grievance to be heard. Finally, he stated that fairness dictated that the applicant not be penalized for the union’s inaction of not filing the grievance on time.

29 I disagree with the decision in Thompson. That decision was written more than five years ago in a jurisprudential context that might not have been as clear as it is now. Since then, it has been decided often that a union’s omissions, negligence or mistakes are not cogent and compelling reasons for extending time. In my opinion, as I stated in Callegaro, “… the applicant and her union cannot be considered as two separate entities…” In that context, the errors of the union are the errors of the applicant.

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

IV. Order

31 The application for an extension of time is denied.

32 The grievances in PSLRB File Nos. 566-02-7603 and 7669 are closed.

March 28, 2013.

Renaud Paquet,
Vice-Chairperson