FPSLREB Decisions

I. Application before the Chairperson

1 On October 26, 2011, the applicant, Mr. Tevin Apenteng, applied to the Public Service Labour Relations Board (“the Board”) for an extension of time to file a grievance with respect to a 30-day suspension imposed on him on June 2, 2011. The suspension was imposed by his employer, the Canada Border Services Agency (“the CBSA”), for altering a doctor’s note relating to his spouse’s medical condition that he presented to his employer for family-related leave.

2 The applicant alleged that the employment relations officer of the Professional Institute of the Public Service of Canada (“the Institute” or “the bargaining agent”) deprived him of his right to grieve an unjust and unfair financial penalty. He alleged that he was pressured by the employment relations officer to admit to something that he did not do. He also alleged that the employment relations officer advised him that if he were to grieve the 30-day suspension, he would be fired by management. He alleged that the employment relations officer denied him his right to recourse by entering into an arrangement to refuse to support and sign any grievance he might bring forward regarding his 30-day suspension.

3 The employer stated that according to the agreement between the Treasury Board and the Professional Institute of the Public Service of Canada, Computer Systems Group (expiry date December 21, 2010; “the collective agreement”), a grievor may present a grievance to the first step of the procedure not later than the 25th day after the date on which the grievor is notified or on which the grievor first becomes aware of the action or circumstances giving rise to the grievance.

4 The employer also stated that Mr. Apenteng was provided with a disciplinary letter in which he was advised of his right to file a grievance. It referred to Mr. Apenteng’s allegation that on August 9, 2010, he became aware of a decision of the Board that did not support his 30-day suspension. However, Mr. Apenteng did not request an extension of time to submit a grievance; nor were there any clear, cogent or compelling reasons provided by Mr. Apenteng that would warrant granting an extension.

5 The employer asserted that time limits are meant to be respected by the parties and should be extended only in exceptional circumstances. It also argued that the supporting documentation in which Mr. Apenteng detailed the situation that occurred between himself and his bargaining agent representative indicated that he had an issue with the bargaining agent, over which the CBSA had no control and responsibility. Therefore, the employer is opposed to providing an extension of time to file a grievance.

6 On August 16, 2013, the Institute applied to the Board under section 14 of thePublic Service Labour Relations Board Regulations,SOR/2005-79 (“theBoard Regulations”)to obtain intervener status. The Institute submitted that it had a substantial interest in the matter and should be allowed to intervene in order to present evidence and arguments if necessary. The employer took no position with respect to the request to be granted intervener status, and the applicant did not oppose it. On August 26, 2013, the Board granted the Institute’s request for intervener status.

7 A hearing on the application for an extension of time was held on September 24, 2013.

II. Summary of the evidence

A. Testimony of Mr. Apenteng

8 Mr. Apenteng testified that he was employed by the CBSA as an employee of the Computer Systems Group at the CS-02 level. He had been so employed since April of 2002. He stated that in April 2011, he took family-related leave. He sent an e-mail to his project leader stating that he would not be able to come to work because of the family-related illness. He received an e-mail from his director saying that upon his return to work, he was required to bring in a doctor's note under the provisions of the collective agreement. When he returned to work, he brought in a doctor's note with respect to his wife's treatment.

9 He later received information from his director general stating that the doctor's note was fraudulent. He was called to a meeting to answer questions about this, accompanied by Mr. Robert Manny, an employment relations officer with the Institute.

10 After the meeting, there was a week or two gap before he learned whether he would be disciplined. Mr. Manny told him that he would not be fired; however, he would be suspended for what was at that time an unknown period of time. Mr. Apenteng testified that Mr. Manny said that if he was suspended, he should not grieve.

11 Mr. Apenteng was given a 30-day suspension for submitting a fraudulent doctor’s note. He testified that prior to that incident, there was no record on his file. He was told that because he had a clean record, he was only given a 30-day suspension.

12 After the meeting where he learned that he was being suspended for 30 days, Mr. Apenteng advised Mr. Manny that the discipline was harsh and unfair. He testified that Mr. Manny asked him to wait while he went to speak with Mr. Pierre Ferland, the director general, to see if he could get the penalty reduced. He waited for approximately 15 minutes, at which time Mr. Manny returned. He testified that Mr. Manny then advised him that Mr. Ferland said that he was unwilling to reduce the 30-day suspension and that if he grieved the suspension, he would be fired. He also testified that Mr. Manny advised him to just take the suspension and not grieve.

13 Mr. Apenteng stated that this advice did not sit well with him. He argued with Mr. Manny about filing a grievance. He felt threatened, as he was between a rock and a hard place. He served his 30-day suspension. When he came back to the workplace, he started speaking with other stewards, who advised him that he had a right to grieve.

14 Mr. Apenteng stated that on June 9, 2011, he received an e-mail from Robert Manny that stated:

As per our agreement yesterday with Marc St. Amour present, you agreed to take the suspension and not grieve the matter. I think that this is the best we can do and encourage you to accept. Please send your acceptance by return e-mail. Thanks and good luck.

15 Mr. Apenteng stated that he did not respond. On June 15, 2011, he received an e-mail from Mr. Manny that stated: “I need an answer ASAP or I’ll respond to the employer that we have no deal.”

16 On the same day, shortly thereafter, Mr. Apenteng responded to Mr. Manny by e-mail, stating as follows:

I went through the decision letter from Pierre Ferland and it does not state anywhere or there is no condition that I need to waive my right to appeal his decision in order for my suspension to be effective. As a matter of fact it actually states that I have a right to appeal his decision. Therefore, I am not waiving my rights to appeal as he has stated in his letter that he is suspending me for 30 business days.

…

17 Mr. Apenteng stated that he received an e-mail from Mr. Manny not too long after that, stating: “We need to talk.”

18 It appears they spoke subsequently. Mr. Apenteng stated that the discussion was a reiteration of what Mr. Manny put in the e-mail that he should not grieve the suspension or he would be fired.

19 Mr. Apenteng served his suspension from June 27 until August 1, 2011. On October 26, 2011, he wrote to the Board seeking an extension of time in which to file a grievance.

20 On November 22, 2011, Mr. Apenteng was advised that he was under investigation for misconduct and was suspended without pay until July 2012, at which time his employment was terminated.

21 Mr. Apenteng concluded that the employer’s statement that he would be fired if he sought an extension of time to file a grievance against his suspension was made in earnest.

22 During cross-examination, the applicant was asked whether he had demonstrated any remorse during the disciplinary hearing with Pierre Ferland. Mr. Apenteng stated that in fact his wife had attended the physician described in the note, during which time he had taken care of the family's children. He did not lie about her going to the physician. However, the dates that she had attended the physician had been changed. His wife had provided him with a doctor's note for family-related leave. He stated that on account of his supervisor's pressure, he presented the doctor’s note with the changed dates, even though it was his understanding that such a note was not required under the collective agreement. He stated that he showed Mr. Ferland the original copy of the doctor’s note at the meeting.

23 Mr. Apenteng acknowledged that Mr. Ferland showed him a letter from his wife's physician, which asked that the letter that was presented to the employer be disregarded. It stated as follows:

In regards to the April 29, 2011 letter presented to you by Mrs. Apenteng, our records do not show that this letter was created by our office. Dr. David Lindsay did not treat this patient during the period of April 17, 2011 to April 29, 2011.

Please disregard the letter as our office is not responsible for this document.

24 He received a letter dated June 2, 2011, from Mr. Pierre Ferland that stated he was being disciplined for the submission of a fraudulent medical certificate and as a consequence was being suspended without pay for 30 days, to be served from June 27 to August 5. He acknowledged that the letter stated he may present a grievance against the decision within 25 days following receipt of the letter.

25 He stated that Mr. Manny was telling him not to grieve, whereas he was telling Mr. Manny that he wanted to grieve. It was suggested to Mr. Apenteng that Mr. Manny had advised him that he was lucky he was only given a 30-day suspension, as he could have been fired. Mr. Apenteng did not agree with the suggestion and repeated that Mr. Manny told him that if he grieved he would be fired. Mr. Apenteng asserted that he had never stated that Mr. Ferland told him that if he grieved, he would be fired. He clarified that it was Mr. Manny who stated this.

26 Mr. Apenteng acknowledged that he received an e-mail from Mr. Manny on June 17, 2011, stating: “A reminder that you have until July 7, 2011 should you grieve your suspension dated June 2, 2011.”

27 He did not file a grievance. He explained that Mr. Manny said he would not file a grievance for him. Mr. Manny said he could do it on his own. Mr. Apenteng testified that he was not sure how to go about filing a grievance, that he was on suspension at that time and that Mr. Manny left him on his own.

28 Mr. Apenteng acknowledged that Mr. Peter Taticek, a union steward at CBSA, had assisted him before. It was suggested that Mr. Taticek could have assisted him. Mr. Apenteng replied that he was dealing with Mr. Manny and that Mr. Taticek was not in the picture. He stated that he did not seek help for filing a grievance on his own as he did not have access to other labour relations officers.

29  He stated that it was only after he had served his suspension and had additional information and the courage to file a grievance that he brought an application to the Board in October 2011 to extend the time limits. He stated that he did not file within the timeline of July 7 as he felt threatened. He did not think he could file a grievance on his own. However, after doing his own investigation, he acquired sufficient knowledge to bring the application.

B. Testimony of Mr. Robert Manny

30 Mr. Manny was employed as an employment relations officer by the Institute from December 2009 until June 2012. He had worked for another union from 1984 to 2009 and had been a national representative during the last 10 years that he worked there.

31 His duties as an employment relations officer with the Institute required that he meet members, attend meetings and file grievances. His portfolio included Atomic Energy of Canada Ltd., Environment Canada, CBSA and, for a while, the Department of Finance. He was the sole union representative for these portfolios. Part of his role was to provide representation to employees facing disciplinary action or the grievance process.

32 He first became involved with the applicant concerning an incident in which an individual had spoken harshly to Mr. Apenteng. Either Mr. Apenteng or his steward had called him.

33 He first became involved with respect to the subject matter of this application when the steward, Mr. St. Amour, or management called him about an event that took place involving Mr. Apenteng and a medical note. He attended a meeting with Mr. St. Amour, Mr. Apenteng, Mr. Pierre Ferland and Diane Tierney, a labour relations officer. At the meeting, they were informed of serious concerns with respect to one of Mr. Apenteng’s doctor’s notes.

34 Mr. Manny advised management that he had not, at that time, spoken with Mr. Apenteng, as he had not had time to consult with him. He had another meeting with Mr. St. Amour to discuss whether the doctor’s note was fraudulent. He advised that management would have to prove that the note was false. He called management and asked them to provide proof that the note was fraudulent before proceeding with the disciplinary interview.

35 Mr. Manny was shown a letter by the labour relations officer from the office of Dr. Lindsay that stated that the physician did not treat the patient during the period April 17, 2011, to April 29, 2011, and to disregard the April 29, 2011 letter, as the office was not responsible for the document.

36 Mr. Manny called a meeting with Mr. Apenteng and Mr. St Amour. Mr. Manny showed the doctor’s note to Mr. Apenteng. Mr. Apenteng said that he did not write the note but he acknowledged that his wife had written it and that he had handed it in to management. Mr. Manny advised Mr. Apenteng to tell the truth.

37 They attended a fact-finding meeting with Mr. Ferland. Mr. Apenteng told Mr. Ferland what had happened. Thereafter, they waited for the discipline to be handed down. Mr. Manny advised Mr. Apenteng that the situation could be serious and that he could be fired for this. He had been doing this type of work for a long time, and misuse of sick leave in a hospital setting could result in getting prosecuted for theft. Altering or producing a fake doctor's note was, to the best of his knowledge, grounds for dismissal.

38 Messrs. Manny, St. Amour and Apenteng subsequently attended a meeting with Mr. Ferland, at which time Mr. Ferland imposed a 30-day suspension.

39 Mr. Manny was asked whether Mr. Apenteng provided an explanation at the meeting. He stated that Mr. Apenteng explained that he did not alter the note but admitted that he submitted it to the employer. He also stated that Mr. Apenteng was asked why he submitted the note and had stated that he was under financial pressure and referred to a missed financial payment. Mr. Ferland said that he would take that into account.

40 He was asked whether Mr. Apenteng expressed remorse. Mr. Manny stated that he could not say whether Mr. Apenteng was remorseful that he engaged in the misconduct or that he was caught engaging in misconduct. He was asked whether Mr. Apenteng made any admissions. He stated that he handed in the original unaltered doctor’s note. The discipline notice was handed to Mr. Manny and Mr. Apenteng. Mr. Manny thanked Mr. Ferland for his compassion. He explained that he says words to that effect after all meetings with management involving grievances as there is no sense angering the decision-maker because they are doing their job.

41 Mr. Manny spoke with Mr. Apenteng after the meeting. Mr. Apenteng was not happy. Mr. Manny told him he should be relieved that he was not fired. They discussed filing a grievance. Mr. Apenteng asked about the next step. Mr. Manny said he could file a grievance. If he did file a grievance, it would be reviewed by the union’s legal office about whether or not it would go to adjudication.

42 Mr. Manny clarified the wording of the June 9, 2011, e-mail that he sent the applicant, noting that the reference to an agreement between Mr. Apenteng and him indicated simply that the applicant did not want to go forward with a grievance, and that was all. In Mr. Manny's view, the 30-day suspension was the best the union could do, even if it filed a grievance and the union decided to go to adjudication.

43 Mr. Manny was asked whether, after the notice of discipline was issued and he spoke with Mr. Apenteng, he went back to management to discuss the quantum of the discipline. He stated that he did not remember going back for such a discussion and on re-examination clarified that he did not remember because he did not go back.

44 He was asked whether Mr. Apenteng had gotten back to him after he advised him that he had until July 7, 2011, to grieve his suspension. He answered, “No.”

45 He identified his e-mail, dated June 15, 2011, to Mr. Apenteng that stated: “I need an answer ASAP or I'll respond to the employer that we have no deal.” He testified that he had no idea what this was. He stated that the employer never talked about changing the suspension and said that the employer could not increase the penalty, as the employer had already meted out the discipline. He stated that there were no threats by the employer to impose higher discipline.

46 He stated that Mr. Apenteng never made clear to him that he wanted to grieve the suspension. He recalled that when Mr. Apenteng returned to work after serving his suspension, he was irate that he was not on the payroll. That was the last time that Mr. Manny had spoken with him until December 19, 2011, when he was called by Mr. Apenteng’s supervisor concerning attending a disciplinary meeting. Mr. Apenteng advised him that he did not want to go to the meeting and that he certainly did not want to be accompanied by Mr. Manny.

47 Mr. Manny stated that he advised Mr. Apenteng to attend the meeting and that Mr. Pierre Ouellette had offered to represent him.

48 He was asked whether Mr. Apenteng could have filed a grievance on his own. He replied that he could have asked a steward for assistance and that he could not have prevented that. He denied that he deprived Mr. Apenteng of his right to grieve or that he pressured him to admit to something he did not do. He denied advising Mr. Apenteng that if he grieved the 30-day suspension, he would be fired. He believed Mr. Apenteng was mixed up. Mr. Manny did tell him that submitting a fraudulent medical certificate was a firing offense.

49 In response to a question as to whether he pressured Mr. Apenteng not to grieve, he answered that he was not enthusiastic about filing a grievance. If Mr. Apenteng had asked him to file a grievance, he would have.

50 He denied telling Mr. Apenteng that Mr. Ferland would look bad if he grieved. He confirmed that no threats were made to him concerning Mr. Apenteng and his continued employment if Mr. Apenteng grieved. He denied entering into any arrangement to refuse to support any grievance that might be brought forward with regard to the 30-day suspension, stating that he had been a union man all of his career.

51 In response to questions from Mr. Apenteng, he recalled that immediately after the meeting when the discipline was meted out, Mr. Apenteng protested to him that the discipline was excessive. He stated that he did not remember returning to see Mr. Ferland about getting the suspension reduced, subsequent to which he allegedly advised Mr. Apenteng that if he was to grieve a 30-day suspension, he would be fired.In re-examination, he stated that the reason he did not remember it happening is because it did not happen. Mr. Manny acknowledged that he did not advise Mr. Apenteng that he could file a grievance on his own. He stated that Mr. Apenteng did not ask for advice on how to file a grievance.

52 In response to a question from Mr. Apenteng concerning the collective agreement and whether an employee requires a doctor's note for an absence due to a family-related sickness, he responded that the majority of contracts provide for this. He acknowledged that he was not aware of the provisions of the collective agreement at the time of the incident.

C. Testimony of Pierre Ferland

53 Mr. Ferland is the Director General, Solutions, Information, Science and Technology Branch for the CBSA, and has held that position since February 2010. His group is responsible for software development for the agency and has the responsibility for managing some 400 employees, who are all computer scientists and engineers.

54 He stated that he signed the discipline letter dated June 2, 2011, to Mr. Apenteng, in which he imposed a suspension without pay of 30 days for the submission of a fraudulent medical certificate.

55 He was asked whether he took into account any mitigating factors in determining an appropriate disciplinary measure. He advised that he took into account Mr. Apenteng’s remorse for the misconduct and the absence of a prior disciplinary record. He also considered aggravating factors, namely, the seriousness of the incident, the nature of the misconduct and the fact that the production of a false document is a serious offence in government. At the meeting during which he issued a 30-day suspension, Mr. Apenteng did not say anything, and Mr. Manny thanked him for his compassion. Mr. Manny did not go back to him subsequent to the meeting to discuss the quantum of discipline. His only discussion with respect to quantum was with the labour relations advisor. He did not speak with Mr. Apenteng or Mr. St. Amour.  

56 He acknowledged that when Mr. Apenteng came back to work after serving his suspension, the agency forgot to put him back on payroll. He did not recall whether he intervened himself directly. However, the situation was rectified as quickly as possible. He did not have any conversations with Mr. Manny, Mr. St. Amour or Mr. Apenteng about a grievance.

57 He was asked about the allegation made by Mr. Apenteng that Mr. Manny advised him that if he were to grieve, he would be fired, and asked whether he ever made any threats of that nature. He answered that the employer does not fire people because they grieve.

58 He acknowledged that during a disciplinary interview, he does not discuss the right to grieve. There is written reference in the disciplinary notice setting out that right. It is also the employee’s representative who is responsible for advising of redress available.

59 Mr. Ferland did not remember Mr. Manny returning to his office after the disciplinary interview on June 2, 2011, to discuss the quantum of discipline. He was asked whether he had any idea what the “deal” was with the employer, referred to in the e-mail from Mr. Manny to Mr. Apenteng. He stated that he had no idea and that he did not have any further discussions with Mr. Manny about the 30-day suspension after June 2, 2011.

60  He recalled that he had discussions with Mr. Manny in the fall concerning other issues involving Mr. Apenteng. Upon reflection, he agreed the discussions may have been with another employment relations officer from the Institute.

61 He stated that he had no knowledge of the allegation that Mr. Manny had advised Mr. Apenteng that if he grieved the 30-day suspension, he would be fired.

62 He acknowledged that he thought the 30-day suspension that he imposed on Mr. Apenteng was harsh. However, human resources staff advised him that it was appropriate, based on the jurisprudence. He did not consider whether the collective agreement required a doctor's note for an absence or family-related illness, as he did not consider that such a provision would make a difference where someone had submitted a fraudulent sick leave form.

III. Summary of the arguments

A. Argument of the applicant

63 The applicant referred to three decisions in support of his grievance. In Guittard v. Staff of the Non-Public Funds, Canadian Forces, 2002 PSSRB 18, the applicant’s employment had been terminated, and he consulted a lawyer to challenge the termination. The lawyer advised him to file an action for wrongful dismissal in the civil courts. Subsequently, another lawyer advised him that his recourse was to file a grievance under the Public Service Staff Relations Act. Two weeks later, and some five months after his termination, he applied for an extension of time to file a grievance, submitting that the prejudice he would suffer should the time limit not be extended would be greater than the prejudice to the employer. The employer submitted that its witnesses were on extended leaves of absence, working in other regions or no longer working for the employer, and in any event, the applicant’s position had been filled in the interim. The Board found that, from the outset, the applicant had intended to challenge the termination of his employment and that the employer should have informed the applicant of his right to file a grievance. Any prejudice suffered by the employer was not as severe as what the applicant would suffer should the application not succeed. The Board also found that the time elapsed before the filing of the application was not unduly excessive.

64 In Riche v. Treasury Board (Department of National Defence), 2009 PSLRB 157, the applicant requested an extension of time to transmit a grievance disputing a three-day suspension as well as an extension of time to file two grievances concerning one- and two-day suspensions, alleging that his medical condition had prevented him from acting within the specified time limits. The Board concluded that the applicant’s medical condition established at least a prima facie case for his failure to file the grievances and that the factual situation provided a clear, cogent and compelling reason to explain his failure to grieve in a timely way. He was sufficiently diligent in pursuing his rights, there was no element of surprise to the employer and the delay of some four months was not excessive.

65 Finally, the applicant referred to the case of Richard v. Canada Revenue Agency, 2005 PSLRB 180, where the Board granted an application for an extension of time to permit the grievor to file grievances against her indefinite suspension and termination of employment arising from an internal investigation that indicated the grievor had paid herself over $40,000 in fictitious rebate claims. The Board determined that it had broad discretion to grant such applications in the interest of fairness. It relied upon the presentation of clear, cogent and compelling reasons to explain the delay of some six to eight months, the grievor’s fragile state of mind and the lack of prejudice to the employer in its ability to present its case.

66 Mr. Apenteng submitted that these three cases make clear that the Board has the authority to grant extensions of time in the interest of fairness, that the facts in his case are no different and that the application should be granted.

B. Argument of the employer

67 The employer submitted that the applicant did not respect the time limits set out in the collective agreement for grieving the 30-day suspension. It also argued that extensions of time should be granted by exception only, and not by rule.

68 In Salain v. Canada Revenue Agency, 2010 PSLRB 117, the Board allowed a preliminary objection on the basis of timeliness and dismissed a grievance. In that case, the grievance was filed six days after the expiry of the time limits set out in the collective agreement. The Board noted that the length of the delay was not excessive, the employer would not suffer prejudice if an extension of time were granted and the prejudice to the grievor in dismissing the grievance would outweigh any prejudice to the employer. Nevertheless, the Board found that the grievor did not demonstrate due diligence in pursuing his grievance and thus declined the application. The employer referred to paragraph 24 of the decision, which stated that the grievor’s explanation for failing to file his grievance in a timely way was that his union did not properly advise him on what was the obvious thing to do. As a consequence, he was turning to the Board to seek an extension of time.

69 Counsel referred to Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, at para 75, where the Board summarized the basic criteria for determining whether to exercise its discretion to extend time limits. The criteria read as follows:

• clear, cogent and compelling reasons for the delay;
• the length of the delay;
• the due diligence of the grievor;
• balancing the injustice to the employee against the prejudice to the employer in granting an extension; and
• the chance of success of the grievance.

70 The timelines set out in the collective agreement state that a grievance must be presented no later than 25 days after the date on which the grievor is notified or on which the grievor first becomes aware of the action or circumstances giving rise to the grievance.

71 The discipline letter imposing a 30-day suspension is dated June 2, 2011, and is explicit that under the Public Service Labour Relations Act and the collective agreement, a grievor may present a grievance against the decision within 25 days following receipt of the letter. Mr. Manny sent an e-mail to Mr. Apenteng on June 17, 2011, reminding him that he had until July 7, 2011, to grieve his suspension dated June 2, 2011. Mr. Apenteng applied to the Board on October 26, 2011, for an extension of time to present a grievance, some 3 1/2 months after the circumstances giving rise to the grievance. Counsel referred to Cloutier v. Treasury Board (Department of Citizenship and Immigration), 2008 PSLRB 31, where the Board stated at paragraph 13:“Although paragraph 61(b) of the Regulations allows that time limit to be extended, such applications are allowed sparingly so as not to destabilize the labour relations scheme created by the Act and the agreement between the parties.”

72 Counsel referred to Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92, where the Board, at paragraph 45, referred to an excerpt from Gill v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 81, about the weight to be given to each of the criteria in Schenkman as follows:

These criteria are not always given equal importance. The facts of a given case will dictate how they are applied and how they are weighted relative to each other. Each criterion is examined and weighed based on the factual context of the case under review. In some instances, some criteria may not be relevant or the weight may go to only one or two of them.

73 Counsel also referred to paragraph 46 of Grouchy, where the Board stated in part:

… In principle, time limits set by the Act and the Regulations are mandatory and should be respected by all parties. Having relatively short time limits is consistent with the principles that labour relations disputes should be resolved in a timely manner and that parties should be entitled to expect that an issue has come to an end when a prescribed time limit has elapsed. Time limits are not elastic, and extending them should remain the exception and should occur only after the decision maker has made a cautious and rigorous assessment of the circumstances.

74 Counsel also referred to Cowie v. Deputy Head (Correctional Service of Canada), 2012 PSLRB 14, where the Board stated the delay must be justified by clear, cogent and compelling reasons above all else. At paragraph 35, the Board stated, in part, as follows:

… I believe that, in general, the delay must be justified by clear, cogent and compelling reasons; otherwise, the other criteria might not be relevant. What 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 that was not strongly justified? Granting an extension not based on a strong justification of the delay could amount to not respecting the collective agreement entered into by the parties. Clearly, paragraph 61(b) of the Regulations was not drafted in that spirit.

75 Counsel submitted that the burden is on the applicant to demonstrate that the most important factor in the Schenkman test was that there were clear, cogent and compelling reasons for the delay. These must be supported by evidence. There were no reasons given for the delay. In fact, the employer stated that no threats ever took place. Mr. Manny testified that he never went to speak with Mr. Ferland about reducing the 30-day suspension, and there was no discussion of reprisals.

76 It was also argued that ignorance was not a saving factor which would enable the Board to grant an extension of time; nor could a mistake by the union's employment relations officer save Mr. Apenteng.

77 The decisions in Riche and Richard,recited by the applicant, can be distinguished on the basis that both of the applicants had medical reasons to explain the delay in filing in a timely manner.

78 In this case, the applicant did not exercise due diligence. He knew he had 25 days in which to file a grievance. He could have consulted other union representatives and colleagues. He did consult other union representatives after serving his suspension, but that does not explain the delay from July until October, when he filed his application with the Board.

79 In Grouchy, the Board stated that an employee engaging in proceedings is responsible for inquiring and finding out about the rules that govern the proceedings, such that ignorance of the law is not an excuse. The Board stated, at paragraph 51, in part:

… I understand that the grievor was no longer represented by his bargaining agent in his grievance proceedings, but in my view, that did not prevent him from contacting his bargaining agent to inquire about time limits. I consider that an employee engaging in proceedings is responsible for inquiring and finding out about the rules that govern those proceedings and that one cannot put forward his or her ignorance of the applicable rules or his or her decision not to seek professional advice to justify an extension of time.

80 The respondent also submitted that there is prejudice to the employer if the application is granted, as the employer relied upon this discipline when it ultimately terminated the employee. It also argued that allowing an extension of time will destabilize labour relations and that the employer should not be prejudiced should the Board find that the bargaining agent made an error in representing the employee.

81 With respect to the chances of success of the grievance concerning the 30-day suspension, the employer argued that the probability is very low, as forging a medical note is serious misconduct. In McKenzie v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 26, the Board stated at paragraphs 75 and 80 in part:“Forging her doctor’s signature on the medical certificates is a criminal offence, and that alone would be grounds for termination of employment... It is trite law that … honesty [is] the cornerstone… of a viable employment relationship.”

C. Argument of the intervener

82 The intervener submitted that it has a substantial interest in defending itself against the allegations of gross misconduct on the part of the employment relations office. It also argued that Mr. Manny testified in a very credible manner. He denied that he conspired with the employer to deny Mr. Apenteng recourse to the grievance procedure to contest the disciplinary suspension. Both Mr. Manny and Mr. Ferland testified that there was no discussion of modifying the penalty of 30 days, and there was no evidence to support the allegation that Mr. Apenteng would be fired by management if he grieved the 30-day suspension. It also stated that Mr. Manny did tell Mr. Apenteng that submitting a fraudulent medical certificate could lead to his termination.

83 It also submitted that Mr. Manny advised the applicant on July 7, 2011, to grieve his suspension and that Mr. Apenteng nevercontacted him to pursue a grievance. The Institute has made no mistake in the advice provided. Mr. Apenteng may not have been happy with the advice. However, on a balance of probabilities, there is no evidence of bad faith on the part of the Institute.

D. Reply argument of the applicant

84 In reply, the applicant stated that the facts in this case met all of the Schenkman factors. The reasons for the delay of the applicant pertain to his fear of losing his job if he grieved. The length of the delay was less than four months and was not an excessive period of time when reviewing the case law where extensions of time have been granted. Once the applicant returned from his suspension, he pursued his grievance with due diligence. Initially, he did not know that he could file a grievance on his own.

IV. Reasons

85 Applications to extend timelines should be allowed sparingly (Cloutier,at para 13). At the time of the events leading to this case, the collective agreement for the Computer Services (CS) Group required the presentation of a grievance to the first step of the procedure no later than the twenty-fifth (25^th) day after the date on which the grievor is notified or on which the grievor first becomes aware of the action or circumstances giving rise to the grievance.

86 Subsection 61 of the Board Regulations provides some leeway to the Board to extend the time either before or after the expiry of the time if it is in the interests of fairness to do so, notwithstanding the collective agreement provisions. That provision reads:

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,

(a) by agreement between the parties; or

(b) in the interest of fairness, on the application of a party, by the Chairperson.

87 Schenkman, at para 75, devised a five-factor test for the extension of time, under the Public Service Staff Relations Board Regulations and Rules of Procedure, 1993. This test is also applied under the current legislation and its Board Regulations.Those five factors follow:

• clear, cogent and compelling reasons for the delay;
• the length of the delay;
• the due diligence of the grievor;
• balancing the injustice to the employee against the prejudice to the employer;
• the chance of success of the grievance.

88 The inquiry is fact driven and based on the underlying principle of section 61 of the Board Regulations: what is “in the interests of fairness.” Flowing from this, there are no presumptive calculations or thresholds in the Schenkman criteria that pre-empt a decision maker from considering whether, in the interests of fairness, an extension of time ought to be granted.

89 Thefactors are not always afforded equal importance. The circumstances of each case determine how they are weighed relative to each other (Grouchy, at para 45. See also Vidlak v. Treasury Board (Canadian International Development Agency), 2006 PSLRB 96, at para 11, 12 and 15). In this case, a key factor is the balance of injustice to the employee against the prejudice to the employer.

90 In his e-mail to the Board dated October 26, 2011, Mr. Apenteng made several allegations. All of the allegations relate to the conduct of the applicant’s representative at the time. None of the allegations involves management. Mr. Apenteng alleged that Mr. Manny pressured him to admit to something he did not do. There is not sufficient evidence before me to come to that conclusion, and in any event, that allegation relates to the merits of the grievance itself.

91 Mr. Apenteng also alleged that there was a “deal” made between Mr. Manny and the employer. Mr. Manny and Mr. Ferland both denied the existence of an agreement. I do not accept that the evidence shows the existence of a deal between the employer and the union or the union representative at the time.  

92 The applicant also alleged that Mr. Manny told him that if he decided to grieve, he would be fired. I cannot find that Mr. Manny actually stated this. Mr. Manny denied that he ever said this and testified that he thought the applicant was, in his words, “mixed up.” Mr. Manny acknowledged that the applicant was not happy with his advice not to grieve the suspension. He also stated that he told Mr. Apenteng he should be relieved that he was not fired; and that Mr. Apenteng asked about the grievance process after the suspension was imposed by the employer.

93 It is nevertheless important to consider the applicant’s state of mind and whether or not he had a fear that he would be fired should he grieve and the steps that were taken by Mr. Manny to help the applicant in the grievance process itself. The evidence shows that Mr. Apenteng thought the discipline was harsh and that he was concerned about recourse for the suspension. He testified that he asked Mr. Manny to negotiate a reduction of the suspension, that he believed that he could not grieve and, specifically, that he believed that he would be fired if he grieved. In addition, the e-mails sent by Mr. Manny can be interpreted in a manner that supports the applicant’s testimony that he believed that he would be fired if he grieved. The e-mails from Mr. Manny suggest that some kind of agreement had been struck, although the applicant’s interpretation of the nature of that agreement appears to have been incorrect. On June 9, 2011, Mr. Manny wrote the applicant and stated, “[a]s per our agreement … you agreed to take the suspension and not grieve the matter [emphasis added],” concluding that this was the best that could be done. When Mr. Apenteng did not respond to this e-mail, Mr. Manny’s response may again have been perceived as supporting some sort of agreement when he wrote that he needed an answer as soon as possible or he would “… respond to the employer that we have no deal [emphasis added].” Following this communication, Mr. Apenteng’s June 15 e-mail reflects his faulty understanding as to his right to grieve. Referring to previous correspondence from the employer, Mr. Apenteng essentially asks his union representative why he would not be able to grieve. Based on the testimony at the hearing and the documentary evidence, I accept the evidence of the applicant as to his fear of presenting a grievance, based on a genuine belief that he would be fired if he did so.

94 It is also important to consider the manner in which Mr. Apenteng’s concerns about the grievance process were addressed by his representative. Mr. Manny testified that Mr. Apenteng never made it clear that he wanted to grieve. It is very difficult to understand how he came to this conclusion, at the very least at the point that the applicant sent him the June 15, 2011 e-mail. Although Mr. Manny wrote the applicant by e-mail two days after the June 15, 2011 e-mail and stated that he had a limited amount of time within which to grieve, there is no evidence that he took the opportunity to clarify the applicant’s misunderstanding of the grievance process or offered him any assistance as to how to bring a grievance. This is a striking omission given that at virtually every step, the applicant had questions and concerns about the direction he was being asked to take in not proceeding with a grievance. Mr. Manny acknowledged that he was not enthusiastic about the applicant filing a grievance. He testified that Mr. Apenteng could have asked a steward for assistance and that he could “not have prevented that.” He may have held strong views about the direction that the applicant ought to have taken, but he was still obligated to provide him with the information he required. The applicant had no disciplinary record at the time, and no evidence was submitted that indicated that he understood when or how to file a grievance on his own. In addition, Mr. Apenteng was afraid of the consequences of bringing a grievance. The advice provided by Mr. Manny did nothing to assist Mr. Apenteng in examining his options or assuaging his concerns about his right to present a grievance.

95 I find that the applicant did have a genuine fear of termination should he proceed with a grievance on the suspension. I also find that the union representative failed to clarify his confusion or provide the information the applicant required to make a fully informed decision on recourse and effectively prevented the applicant from exercising recourse.

96 With regard to Mr. Apenteng’s allegation that the actions of the union representative constituted “gross negligence,” in my view, the issues in this case do not amount to such a level of blatant thoughtlessness or omission. But gaps in representation and inadvertence may undermine recourse, and though these may not constitute gross negligence, they can be grounds for an extension of time. Arguments — such as those pertaining to ignorance of the law and the wording in the disciplinary letter — must be considered in the context of what happened to Mr. Apenteng in the internal disciplinary process, his genuine concern that he would be terminated should he proceed with a grievance and the lack of assistance offered by his representative in advancing a grievance.

97 A key factor in this application is the balance of injustice to the applicant against the prejudice to the employer in extending the period of time. There is no evidence of prejudice to the employer. The employer submitted that a decision to extend the time will destabilize labour relations but did not provide any evidence to support this position, except the fact that it did ultimately terminate the employee. It is precisely because of the subsequent termination, due in part to the suspension, that the applicant is in a situation of greater prejudice than the employer. This does not mean that in every case of serious discipline in which there is a request for an extension of time that the extension will be granted. Nevertheless, in examining the Schenkman factors, it is in the interests of fairness to do so here. The applicant had not had a disciplinary record until this happened and had been working for the employer since early 2002. In addition, it is noteworthy that his application for an extension of time was filed before the applicant was notified that he was under investigation for misconduct and was suspended without pay.

98  The employer also argues that it ought not to be prejudiced due to the bargaining agent’s error. However, the actions or omissions of a third party can constitute part of the rationale for granting an extension of time within which to present a grievance (Grouchy, at para 57, and Guittard). The balance of injustice is greater to the applicant in this case than to the employer. The applicant was facing serious discipline that later became one of the bases for termination. Fairness to the applicant should take precedence in this case over any prejudice to the employer in granting an extension (Riche, at para 41).

99 The length of the delay was less than four months and was not excessive when reviewing cases where extensions of time have been granted.In addition, given the circumstances, the applicant was diligent in advancing his claim. The applicant was suspended without pay until August 2011. He did not think he could bring a grievance on his own. He did not file within the timeline because he was afraid of the consequence. However, after doing his own investigation, he acquired sufficient knowledge to bring the application in October 2011. Each case should be reviewed carefully and decided according to their own special circumstances, with a view to fairness to each party (Richard, at para 61).

100 The situation here is far less obvious from that in Salain, where the applicant was negotiating an extension to term employment but failed to present a grievance during the negotiations. The present case involves an employee who was subject to the imposition of serious discipline, who believed that he had no support from his representative and who feared that he was going to be terminated should he question the discipline that was imposed. The course of action would not have been so obvious to the applicant as in Salain. I accept the applicant’s evidence that it was only after he had served his suspension and had additional information and the courage to file a grievance that he brought an application to the Board to extend the time limits. Given his assessment of the situation, however inaccurate that it may have been, he would have required courage and additional advice. Although this case does not deal with a medical condition, the underlying principles remain the same. The circumstances provide at least a prima facie case for his failure to file a grievance (Richard and Riche).

101 The employer argued that the applicant did not exercise due diligence because he did not consult other union representatives. The applicant did consult the bargaining agent and received advice. The bargaining agent representative was well aware of the applicant’s apprehensions that he could not grieve and did not take the necessary steps to give him the information necessary. Given that he had already consulted a bargaining agent representative and was working with him, there was no reason for him to speak to another. To the applicant’s credit, after serving his suspension, he sought out the assistance of another representative of the union, who provided him assistance so that he could initiate the grievance process.

102 The employer submits that the chances of success of the grievance concerning the thirty-day suspension are very low, given the alleged conduct. The evidence also showed, however, that the decision maker in the internal process for discipline thought that the length of the suspension was harsh. There is no evidence whatsoever that this is a frivolous or vexatious grievance. In addition, there is no evidence that there is a jurisdictional issue that would otherwise prevent hearing this case. The impact of termination is high, and this factor should not be used to prematurely examine the merits of the case. Given the impact on the applicant, in the interests of fairness, this is a matter that should be put to the adjudicator to determine.

103 In conclusion, there are compelling, cogent and cohesive reasons for extending the timeline in this case because the applicant had a genuine concern that he would be terminated should he proceed with a grievance on the suspension, and the union representative’s limited information and acts actively discouraged the applicant from grieving. The balance of prejudice is greater to the applicant because he was facing serious discipline that later became one of the bases for termination. In this case, fairness to the applicant should take precedence over any prejudice to the employer in granting an extension. The length of time is not significant, and the applicant showed proof of due diligence. With regard to chances of success, it is appropriate in this instance to allow this to be determined by an adjudicator.

104 The reasons that follow relate only to my exercise of discretion in extending the length of time within which to file a grievance and do not have any bearing on the merits of the grievance.

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

V. Order

106 The application for an extension of time is granted.

February 20, 2014.

David Olsen,
Acting Chairperson