FPSLREB Decisions

[1]   The Board was seized on January 31, 2003, with a referral to adjudication of a grievance filed by Marcel Ouellet, the grievor, dated May 19, 2001. Based on the statement of grievance, the grievor works as a correctional officer (CX-01) at the La Macaza Institution.

[2]   The grievance reads as follows:

[Translation]

Between January 1997 and September 1999, I worked a 40-hour shift per week in CX positions such as P.E.C. and a clerk in Socio. Other employees in the CX group on a slow rotation worked a 5/2, 5/2, 4/3 schedule.

[3]   Corrective action requested:

[Translation]

I request that I be paid for all extra days worked during this time.

[4]   On March 7, 2003, the employer, by a letter signed by Georges Hupé, Senior Labour Relations Advisor, Treasury Board, objected to the referral to adjudication on the ground that the grievance was not filed within the prescribed time limit at the first level of the applicable grievance process. On April 17, the Board wrote to the representatives of the parties asking them to submit written arguments on the employer's objection.

[5]   The employer's written arguments were received at the Board on May 15, 2003. After referring to articles 20.10 of the applicable collective agreement and 71(3) of the P.S.S.R.B. Regulations and Rules of Procedure (1993), the employer's representative reiterated the stated objection because the complainant failed to file his grievance within the established time limit. Board decisions Anthony (169-2-167) and Lusted (166-2-21370) were cited in support of the application to dismiss the grievance for lack of jurisdiction.

[6]   On May 16, 2003, the Board forwarded these arguments to the bargaining agent representing the grievor, requesting that it submit its written arguments by June 6, 2003.

[7]   On June 19, 2003, the Board informed the parties that since it had not received any arguments from the bargaining agent, it would deal with the preliminary objection to its jurisdiction on the basis of the file as constituted.

Reasons for Decision

[8]   Subsection 96(1) of the Public Service Staff Relations Act (Act) states the following:

96.(1) Subject to any regulation made by the Board under paragraph 100(1)(d), no grievance shall be referred to adjudication and no adjudicator shall hear or render a decision on a grievance until all procedures established for the presenting of the grievance up to and including the final level in the grievance process have been complied with.

[9]   Subsection 71(3) of the P.S.S.R.B. Regulations and Rules of Procedure (1993) sets out the following rule:

71(3) An employee shall present a grievance no later than on the twenty-fifth day after the day on which the employee first had knowledge of any act, omission or other matter giving rise to the grievance or the employee was notified of the act, omission or other matter, whichever is the earlier.

[10]   To the same effect, clause 20.10 of the collective agreement between the Union of Canadian Correctional Officers - CSN and the Treasury Board states that:

20.10 An employee may present a grievance to the First (1^st) Level of the procedure in the manner prescribed in clause 20.05 not later than the twenty-fifth (25^th) day after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of the action or circumstances giving rise to the grievance.

[11]   On the surface, the grievance as worded by the grievor was not filed at the first level of the grievance process within the time limits set out in the collective agreement to do so. Indeed, the grievance filed on May 19, 2001, refers to events that occurred between the months of January 1997 and September 1999, which, under the best of scenarios, was some 20 months earlier. There is nothing to indicate that this is a grievance alleging ongoing violation of the collective agreement, which might have allowed receipt of the grievance, at least with respect to circumstances that occurred during the 25 days preceding its filing.

[12]   Moreover, the employer raised the question of the failure to comply with the time limits from the outset in the wording of its responses at the various levels of the grievance process. At the referral to adjudication stage, the employer again raised the failure with respect to the filing of the grievance and argued that it could not, therefore, be referred to adjudication. The employer clearly did not acquiesce to the late filing of the grievance.

[13]   The bargaining agent did not submit any arguments on the matter, although it was invited to do so by the Board, nor did it ask that the time limits for filing the grievance be set aside, as is allowed under section 63 of the P.S.S.R.B. Regulations and Rules of Procedure (1993).

[14]   In light of the elements in the file and described above, it is my opinion that the conditions set out in subsection 96(1) of the Act have not been met, since the grievance, at least on the surface, was not filed within t

[15]   For these reasons, the grievance may not be referred to adjudication and is, therefore, dismissed.

Yvon Tarte
Chairperson

OTTAWA, July 23, 2003.

P.S.S.R.B. Translation