FPSLREB Decisions

Individual grievance referred to adjudication

1 On February 11, 2013, the grievor, Jöelle Barbot, referred a grievance to adjudication under paragraph 209(1)(a) of the Public Service Labour Relations Act (“the Act”). In her grievance, dated September 18, 2012, she contested the Canadian International Development Agency’s (“the employer”) decision to have her reimburse a sum of over $50 000. According to the employer, that sum of over $50 000, which involved the grievor’s pension and insurance benefits, was an overpayment due to an administrative error. The employer tried to recover the sum, but the grievor objected.

2 It should be noted that on June 26, 2013, the Canadian International Development Agency merged with the Department of Foreign Affairs and International Trade to form the new Department of Foreign Affairs, Trade and Development.

Summary of the arguments

3 In a letter dated February 26, 2013, the employer raised a preliminary objection in which it argued that I had no authority to hear this grievance since it was filed after the time limit provided in clause 40.12 of the collective agreement between the Treasury Board and the Canadian Association of Professional Employees for the Economics and Social Science Services Group (“the collective agreement"). Clause 40.12 reads as follows:

40.12 An employee may present a grievance to the first (1^st) level of the procedure in the manner prescribed in clause 40.07, not later than the twenty-fifth (25^th) day after the date on which the employee is notified orally or in writing or on which the employee first becomes aware of the action or circumstances giving rise to the grievance.

4 The employer submitted that the grievor had been informed in writing of the overpayment on May 15, 2012, and that she filed her grievance on September 18, 2012, thus, after the 25 days provided in the collective agreement had passed. Consequently, her grievance is late and must be dismissed.

5 In a letter dated March 4, 2013, the grievor’s representative contested the employer’s position and submitted that subsection 95(2) of the Public Service Labour Relations Board Regulations (“the Regulations”) specifies that an objection about not respecting a time limit prescribed in a collective agreement can be raised only if the grievance was rejected for lateness throughout the grievance process. However, according to the grievor’s representative that did not occur in this case.

6 The grievor’s representative indicated that, after the grievance was filed on September 18, 2012, the employer asked that, given the sum at issue, the grievance be heard on November 30, 2012, directly at the final level of the grievance process. Then, on December 20, 2012, the employer asked for an extension of the time limit in order to produce its response to the grievance. An extension to January 30, 2013, was granted. On January 31, 2013, the employer asked for another extension of the time limit to February 22, 2013, to prepare its response to the grievance. The bargaining agent agreed to an extension to February 8, 2013; if it did not meet that deadline, the employer was to be deemed to have dismissed the grievance, allowing the bargaining agent to refer it to adjudication, which it did, on February 11, 2013. The employer responded to the grievance on March 15, 2013. The grievor’s representative argued that, until March 15, 2013, the employer never raised that the grievance had not been filed within the 25 days prescribed in the collective agreement.

7 Section 95 of the Regulations reads as follows:

95. (1) A party may, no later than 30 days after being provided with a copy of the notice of the reference to adjudication,

(a) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the presentation of a grievance at a level of the grievance process has not been met; or

(b) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the reference to adjudication has not been met.

(2) The objection referred to in paragraph (1)(a) may be raised only if the grievance was rejected at the level at which the time limit was not met and at all subsequent levels of the grievance process for that reason.

…

8 In addition, the grievor’s representative submitted that, while the grievor received an email on May 15, 2012, its contents clearly demonstrate that the case had not been settled; that some questions were outstanding, thus indicating that it was a continuing grievance; and that, consequently, it was premature to file a grievance at that time. The grievor’s representative referred me to the decision in McWilliams et al. v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 58.

9 On March 20, 2013, the employer replied that it should not be penalized for failing to file a response to a grievance, that it met the conditions of section 95 of the Regulations and that it had the right to produce a response to a grievance at any time before the grievance hearing. In support of its claims, the employer referred me to the decision in Deputy Head (Public Health Agency of Canada) v. Angelis, 2010 PSLRB 5. The employer’s representative argued that the employer’s final-level response was issued on March 15, 2013, and that that response indicated clearly that the grievor’s grievance was late.

10 As for the grievor’s argument that this is a continuing grievance, the employer’s representative submitted that the grievance is about a specific and one-time action and that even though reimbursements are spread over time, it does not qualify the grievance as “continuing.”

11 On April 9, June 7 and November 14, 2013, the Public Service Labour Relations Board (“the Board”) asked the parties to submit all additional submissions before it rendered a decision on the employer’s preliminary objection.

12 On November 28, 2013, the employer informed the Board that the grievor had been notified on May 15, 2012 that she owed a sum of approximately $60 000 in arrears and that on July 4, 2012, deductions from the grievor’s pay began, with her knowledge. Thus, the grievor’s grievance was filed on September 18, 2012, not within the 25 days provided in the collective agreement. The employer also maintained that the grievor’s grievance was not of a continuing nature.

13 The grievor’s representative reiterated the fact that, according to subsection 95(2) of the Regulations, the employer should have raised its objection at the first level of the grievance process, “[translation] i.e., the first level for which the 25-day time limit for filing the grievance had not allegedly been met." According to the grievor’s representative, the employer waited six months before raising its objection. That was too late, so the objection should be dismissed.

Reasons

14 This decision is solely about the employer’s preliminary objection that the grievor’s grievance must be dismissed because it was not filed within the 25 days stipulated in the collective agreement.

15 In this case, it appears that the facts are not in dispute. The grievor was allegedly notified on May 15, 2012 that, as the result of an administrative error, the employer intended to recover a sum. The grievor filed a grievance against that decision on September 18, 2012, clearly after the 25 days prescribed in the collective agreement.

16 However, it appears that, given the sum at stake, the employer decided to refer the grievance directly to the third level of the grievance process. After several unsuccessful attempts at obtaining a response to the grievance, the bargaining agent notified the employer that, unless it obtained a decision no later than February 8, 2013, the response to the grievance would be deemed negative, thus allowing the bargaining agent to refer the grievance to adjudication, which it did on February 11, 2013.

17 First, I must point out that, while referral to adjudication under subsection 209(1) of the Act is part of the “grievance process,” the fact remains that the referral to adjudication step does not constitute an internal grievance level as specified in section 95 of the Regulations. They are two separate proceedings. Therefore, a grievor may refer a grievance to adjudication, subject to the terms and conditions of section 209 of the Act, when the employer fails to respond within the time limit.

18 In addition, it is also important to note that, in this case, at no point during the period between the grievance filing and its referral to adjudication did the employer raise that the grievance was late when it was filed on September 18, 2012. Only on March 15, 2013, after it had been referred to adjudication, did the employer object that it was late.

19 In my opinion, the employer’s preliminary objection must be dismissed. It was not permissible or reasonable, given the facts in this case, to wait until the grievor’s grievance was sent to adjudication to raise that it was late. The emails on file produced by the grievor’s representative show that between the grievance being filed and it being referred to adjudication, the parties shared their views on the grievance’s merits. However, I stress that at no time did the employer raise the lateness issue.

20 While I agree with the Angelis decision, which maintains that an employer can file its response at any time before adjudication that, in my opinion, is not the issue in this case. Instead, in this case it is a question of knowing whether the employer had the right to object to my authority on the basis that this grievance was filed late after it was referred to adjudication, even though the lateness issue was never raised throughout the internal grievance process.

21 It was not disputed that the employer failed to respond at the different levels of the grievance process and that it raised the lateness issue only after the grievance was referred to adjudication. As decided in McWilliams et al., a lack of response from an employer during the grievance process therefore amounts to a dismissal of the grievance without cause by the employer. Consequently, I maintain that, by failing to respond, the employer is deemed to have dismissed the grievor’s grievance without providing any reason or raising an objection of any kind. Subsection 95(2) of the Regulations clearly states as follows that an objection to the late filing of a grievance can be raised during adjudication only if the grievance was dismissed on that ground at the different levels of the grievance process:

(2) The objection referred in paragraph (1)(a) may be raised only if the grievance was rejected at the level at which the time limit was not met and at all subsequent levels of the grievance process for that reason.

22 However, as I just mentioned, since the employer did not respond at the different levels of the process, in this case it is deemed to have dismissed the grievance without cause and without raising any objections. The employer could not then claim that, as required in subsection 95(2) of the Regulations, it raised the lateness issue during the internal process, which would have then allowed it, under the terms of subsection 95(1) of the Regulations, to raise it at adjudication. Since the employer failed to meet the conditions mentioned in subsection 95(2) of the Regulations, therefore, it could not raise the lateness issue at adjudication.

23 I would also like to add that, while the grievor was obligated to file her grievance within the time limit prescribed in the collective agreement, the employer was also responsible for responding promptly. The facts of this case lead me to conclude that the employer did not really consider the grievance’s lateness since it never raised that issue, even though it had ample time, i.e., five months between the grievance being filed and it being referred to adjudication.

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

Order

25 The employer’s preliminary objection is dismissed.

April 8, 2014.

PSLRB Translation

Linda Gobeil,
adjudicator