FPSLREB Decisions

I. Application before the Chairperson

1 Americo Comparelli (“the applicant”) worked at the Montreal Tax Services Office of the Canada Revenue Agency (“the respondent” or CRA). The applicant was suspended from his position without pay on July 29, 2010, and was then dismissed for disciplinary reasons on December 8, 2010. The applicant challenged those two CRA decisions in grievances filed in August and December 2010. The respondent stated that it received the two grievances at the final level of the grievance process on December 22, 2010. It dismissed them both at the final level on July 12, 2012, but did not mail its reply to the applicant until July 23, 2012. The applicant stated that he received that mail on July 27, 2012. Neither of the parties disputes those dates. According to the respondent, a copy of the July 12, 2012, reply was sent to the Professional Institute of the Public Service of Canada (PIPSC), the applicant’s bargaining agent, on July 13, 2012.

2 The PIPSC referred the two grievances to adjudication on September 10, 2012. When it made the referral to adjudication, the PIPSC asked the Chairperson of the Public Service Labour Relations Board (“the Board”) to extend the time for referring the grievances to adjudication, given that the referral was made after the 40-day deadline expired that is prescribed in subsection 90(1) of the Public Service Labour Relations Board Regulations (“the Regulations”), which reads as follows:

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

3 The respondent submits that the grievances were referred to adjudication “[translation] four to eight days” after the prescribed deadline. Given that the applicant received the CRA’s reply on July 27, 2012, he should have referred the grievances to adjudication by September 5, 2012, at the latest. He did so five days later, on September 10, 2012.

4 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 Regulations to hear and decide any matter relating to extensions of time in this case.

5 The respondent objected to the applicant’s application for an extension of time. Following a brief review of the application and of the respondent’s initial reply, I noted that the facts involved in the application did not seem disputed. For reasons of efficiency, I decided to proceed with written submissions from the parties.

II. Summary of the arguments

A. For the applicant

6 The applicant acknowledged that he was late referring his grievances to adjudication but that he did not act negligently. He relied on the PIPSC to represent him throughout the grievance process, including at the adjudication stage. In addition, the PIPSC told him that it would refer his grievances to adjudication if the CRA dismissed them.

7 On September 10, 2012, the PIPSC realized that it had inadvertently neglected to refer the grievances to adjudication because of an administrative error. It referred the grievances to adjudication as soon as the administrative error was noted. It acted diligently.

8 The delay in question was less than a week. In the past, the Board’s chairperson has regularly agreed to extend the deadline when the delays were due to administrative errors beyond the applicants’ control. In addition, the applicant did not act negligently by relying on his bargaining agent, especially given that the length of the delay was less than a week.

9 According to the applicant, agreeing to a one-week extension of time would not impact the respondent in light of the facts of these grievances. Doing so would not prejudice it. However, refusing the application would significantly prejudice him because his grievances are about the loss of his employment and of his pay.

10 The grievances in question refer to serious matters. Despite the applicant’s assertions that he was not involved in the fraudulent activities for which he was terminated, it is difficult to estimate their chances of success. The Board should consider the importance and the serious nature of these grievances when evaluating whether it should grant the application for an extension of time.

11 The applicant referred me to the following decisions: Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSLRB 1; Riche v. Deputy Head (Department of National Defence), 2010 PSLRB 107; Hendessi v. Treasury Board (Canada Border Services Agency) and Deputy Head (Canada Border Services Agency), 2012 PSLRB 29; Perry v. Canadian Institutes of Health Research, 2010 PSLRB 8; and Rabah v. Treasury Board (Department of National Defence), 2008 PSLRB 83.

B. For the respondent

12 The respondent asserted that the PIPSC had all the information it needed to refer the two grievances to adjudication within the deadline set out in the Regulations, but neither it nor the applicant did so. The jurisprudence shows that the parties are supposed to respect deadlines and that they should be extended only in exceptional circumstances. A bargaining agent’s administrative error cannot qualify as an exceptional circumstance.

13 The applicant noted that the Board does not always agree to extend the time and that, in general, it requires that a delay be justified on the basis of clear, cogent and compelling reasons. An administrative error is not a clear, cogent and compelling reason. The fact that the applicant relied on his bargaining agent does not absolve him of all responsibility for processing his grievances.

14 Under paragraph 61(b) of the Regulations, the Board is able to exercise its discretion to extend the time if not doing so would create an injustice. Fundamentally, deadlines are mandatory, not flexible, and the parties must respect them. Labour relations disputes should be resolved quickly, and the parties should be able to rely on deadlines to know whether a dispute is over.

15 Based on the most recent Board jurisprudence, the applicant first has to establish that he had clear, cogent and compelling reasons for failing to file his grievances on time; otherwise, the application for an extension of time should be dismissed. According to that same jurisprudence, a bargaining agent’s administrative error is not such a reason.

16 The respondent maintains that its decision to dismiss the applicant was based on concrete facts. It asserts that the applicant was dismissed based on a comprehensive investigation that, according to it, established that he was guilty of serious misconduct.

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; Salain v. Canada Revenue Agency, 2010 PSLRB 117; Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92; Sonmor and Slater v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 20; and Copp v. Treasury Board (Department of Foreign Affairs and International Trade), 2013 PSLRB 33.

III. Reasons

18 The applicant relied on the bargaining agent to refer his two grievances to adjudication. Under subsection 90(1) of the Regulations, the applicant or his bargaining agent were required to do it no later than 40 days after the applicant received the CRA’s decision rendered at the final level of the grievance process. The applicant received the CRA’s replies on July 27, 2012, and therefore, he or his bargaining agent should have referred the grievances to adjudication by September 5, 2012, at the latest. The bargaining agent did so five days after that date, on September 10, 2012.

19 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,

(a) by agreement between the parties; or;

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

20 From all the evidence, the parties have not agreed that the applicant should be granted an extension of time so that he can refer his grievances to adjudication. However, under paragraph 61(b) of the Regulations, the Board’s chairperson may grant an extension of time, in the interest of fairness. The criteria to consider when deciding whether to grant an extension of time were set out in Schenkman and are the following:

• clear, cogent and compelling reasons for the delay;
• the length of the delay;
• the applicant’s due diligence;
• balancing the injustice to the applicant against the prejudice to the respondent if the extension is granted; and
• the grievance’s chances of success.

21 Those criteria are not necessarily always accorded equal weight. In the absence of clear, cogent and compelling reasons justifying the delay, in most cases the Chairperson, or a Vice-Chairperson acting on his behalf, has dismissed applications for extensions of time (see, for example, Kunkel, Callegaro, St-Laurent et al., and Sonmor and Slater).

22 In Kunkel, the delay to the referral to adjudication resulted from an oversight by a union representative. The grievance was about a three-day suspension. It was referred to adjudication 11 months after the prescribed time had expired. The Vice-Chairperson found that the union representative’s errors could not serve as a reason to extend the time. Callegaro, St-Laurent et al., and Sonmor and Slater also involved errors that led to delays referring grievances to adjudication. In each case, the Vice-Chairperson found that the errors did not constitute clear, cogent and compelling reasons that would explain why the deadlines were not respected. In Callegaro, the delay was 14 months to refer grievances to adjudication challenging 1- and 10-day suspensions. In St-Laurent et al. and Sonmor and Slater, the referrals to adjudication were made a few weeks after the 40-day deadline. Those grievances involved alleged violations of collective agreement clauses.

23 This case differs from those cited in the last paragraph with respect to the nature of the grievances or the length of the delay to refer them to adjudication. In this case, the delay was five days for the grievances about the applicant’s termination. In such a context, it seems to me that “in the interest of fairness,” the analysis of the interaction of the five Schenkman criteria should be somewhat different in that the importance to be given to the bargaining agent’s administrative error must necessarily be examined alongside the other criteria.

24 Unlike for the other cited decisions, I cannot fault the applicant for lacking diligence. If the length of the delay had been a few weeks, it would have been reasonable for him to check with the bargaining agent to find out where his grievances were, but the delay in this case was less than a week.

25 The respondent stated that it received the two grievances at the final level of the grievance process on December 22, 2010. It mailed its reply to the applicant on July 23, 2012. That was 19 months to reply, rather than the 30 days stipulated in the collective agreement between the CRA and the PIPSC for the “Audit, Financial and Scientific” group. In such a context, it would be difficult for the respondent to claim that a five-day extension would cause it prejudice with respect to the availability of evidence or witnesses, for example. In fact, the only disadvantage for the respondent were this application allowed would be having to present and defend its position at adjudication. Conversely, the prejudice to the applicant would be much greater given that if I dismissed his application, he would not be able to submit to a third party his challenge to his former employer’s decision to dismiss him.

26 I am unable to make any comment on the chances of success of these two grievances without examining the evidence relating to them.

27 In the interest of fairness, and accounting for the facts submitted to me and the jurisprudence on applications for extensions of time, I grant the applicant’s application for an extension of time.

28 The PIPSC acted diligently. It referred the applicant’s grievances to adjudication as soon as it became aware of its error. The delay caused by the error was five days, a relatively short period. Had the delay been much longer, the applicant’s reasons for it would have had to have been more convincing than an administrative error by the bargaining agent. However, in this case, the very short delay of five days, the PIPSC’s diligence to act, the severity of the prejudice that would be caused to the applicant given that one of his grievances involves his dismissal, and the virtual absence of prejudice to the respondent act significantly in the applicant’s favour. In such a context, and in the interest of fairness, the bargaining agent’s administrative error can be considered a clear, cogent and compelling reason to grant the application.

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

IV. Order

30 The application for an extension of time is granted.

31 I order the Board to schedule a hearing for the grievances 566-34-7589 and 566-34-7590.

August 11, 2014.

Renaud Paquet,
Vice-Chairperson