Date: 20210319

File: 566-34-14580

 

Citation: 2021 FPSLREB 29

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Ashley Tuplin

Grievor

 

and

 

Canada Revenue Agency

 

Respondent

Indexed as

Tuplin v. Canada Revenue Agency

In the matter of an individual grievance referred to adjudication

Before: Ian R. Mackenzie, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Michael Fisher, counsel

For the Respondent: Patrick Turcot, counsel

Heard by videoconference at Ottawa, Ontario,

September 1, 2020.

(Written submissions received on October 6 and 28 and November 3, 2020.)

REASONS FOR DECISION

I. Introduction

[1] Ashley Tuplin (“the grievor”) was hired as a term employee by the Canada Revenue Agency (CRA or “the employer”) on March 9, 2015. In November 2015, she began a maternity leave without pay. She later requested and received a maternity allowance. She also signed a “Maternity/Parental Leave Agreement and Undertaking” (“the undertaking”). While on maternity leave, her term of employment came to an end and was not renewed. She was rehired by the employer as a term employee on November 24, 2016. The employer started recovering the maternity allowance in December 2016, on the basis that the grievor had not fulfilled her return-to-work obligation in accordance with the undertaking and the collective agreement. The grievor grieved the recovery of the maternity allowance.

[2] The employer objected to the grievance on the basis that it was untimely.

[3] The hearing of this grievance was scheduled for a one-day, in-person hearing in March 2020. The hearing was adjourned due to pandemic restrictions. The employer proposed dealing with the timeliness objection by way of written submissions. The Public Service Alliance of Canada (“the bargaining agent”) opposed addressing the objection in writing, as it stated that there were material facts in dispute. I determined that the hearing would proceed by way of videoconference and that evidence would be heard on both the timeliness objection and the merits of the grievance.

[4] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act, the Public Service Labour Relations Act, and the Public Service Labour Relations Regulations to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act (“the Act”), and the Federal Public Sector Labour Relations Regulations (“the Regulations”).

II. Collective agreement provisions

[5] The grievor is in the Services and Programs (SP) Group at the CRA. The applicable collective agreement is for the Program Delivery and Administrative Services Group; it expired on October 31, 2012 (“the collective agreement”).

[6] This grievance engaged the articles in the collective agreement related to the grievance procedure, maternity leave and the maternity allowance.

[7] Article 18 sets a time limit of 25 days to file a grievance. The time limit starts on the date on which the employee is notified orally or in writing or on which she or he first becomes aware of the action or circumstances giving rise to the grievance. The time limit can be extended by mutual agreement between the employer and the bargaining agent. It may also be extended by order of the Board.

[8] Article 38 of the collective agreement provides for maternity leave and for a maternity allowance for an employee who is granted maternity leave. The relevant parts of the maternity leave provision are as follows:

(a) An employee who becomes pregnant shall, upon request, be granted maternity leave without pay for a period beginning before, on or after the termination date of pregnancy and ending not later than eighteen weeks (18) after the termination date of pregnancy.

...

(f) An employee shall inform the Employer in writing of her plans for taking leave with and without pay to cover her absence from work due to the pregnancy at least four (4) weeks in advance of the initial date of continuous leave of absence during which termination of pregnancy is expected to occur unless there is a valid reason why the notice cannot be given.

(g) Leave granted under this clause shall be counted for the calculation of “continuous employment” for the purpose of calculating severance pay and “service” for the purpose of calculating vacation leave. Time spent on such leave shall be counted for pay increment purposes.

 

[9] The relevant requirements of the maternity allowance are as follows:

...

38.02 Maternity Allowance

(a) An employee who has been granted maternity leave without pay shall be paid a maternity allowance in accordance with the terms of the Supplemental Unemployment Benefit (SUB) Plan described in paragraph (c) to (i), provided that she:

(i) has completed six (6) months of continuous employment before the commencement of her maternity leave without pay,

(ii) provides the Employer with proof that she has applied for and is in receipt of maternity benefits pursuant to Section 22 of the Employment Insurance Act, or Quebec Parental Insurance Plan, in respect of insurable employment with the Employer, and

(iii) has signed an agreement with the Employer stating that:

(A) she will return to work on the expiry date of her maternity leave without pay unless the return to work date is modified by the approval of another form of leave;

(B) following her return to work, as described in section (A), she will work for a period equal to the period she was in receipt of the maternity allowance;

(C) should she fail to return to work in accordance with section (A), or should she return to work but fail to work for the total period specified in section (B), she will be indebted to the Employer for an amount determined as follows:

(D) the repayment provided for in (C) will not apply in situations of:

...

(iv) the end of a specified period of employment, if the employee is rehired by the Agency, an organization listed in Schedules I or IV of the Financial Administration Act, the Canadian Food Inspection Agency, or Parks Canada, within ninety (90) days following the end of the specified period of employment, and who fulfils the obligations specified in section (B) ....

...

III. Summary of the evidence

[10] The parties provided an agreed statement of facts and agreed book of documents, which I have incorporated into the summary of the evidence.

[11] The grievor and the chief steward at the relevant time both testified. The manager who signed the undertaking testified for the employer, as well as a compensation manager. None of the witnesses had an independent recollection of the events at issue in this grievance. Considering this, their testimony was of limited relevance. I have referred to the testimony of the signatories to the undertaking about their understanding of what they signed. However, because they had no recollection of the discussions at the time of signing the undertaking, this evidence is of limited value. In addition, all witnesses provided their opinions on the meaning of the undertaking and the collective agreement. Since that is the very issue before me, I have not relied on those opinions.

[12] The grievor was hired as a term SP-02 examiner and document processing clerk on March 9, 2015, at the Summerside, Prince Edward Island, CRA Tax Centre. Her initial term was scheduled to end on April 24, 2015 but was extended twice. The last extension (on September 10, 2015) was until March 31, 2016.

[13] After her term was extended, the grievor advised the CRA that she would take maternity/parental leave without pay, effective November 23, 2015. She testified that it was her intention to take 52 weeks off, the full period of available Employment Insurance benefits for maternity and parental leave.

[14] On November 10, 2015, the grievor received a letter from the Compensation Client Service Centre setting out the terms of her leave without pay. The letter noted that her current term appointment was to end on March 31, 2016, and stated that
“... the approval of your maternity and/or parental LWOP [leave without pay] should not be construed as an extension of your term employment contract with the Canada Revenue Agency (CRA)”.

[15] The letter also noted that some information in it might not apply to the grievor. The balance of the letter was a generic description of the leave provisions under different collective agreements. The letter included a description of the maternity/parental allowance:

In accordance with your collective agreement or your terms and conditions of employment (HR group), you must meet the requirements listed below:

1. You have completed six months of continuous employment.

2. You provide your compensation advisor with proof of receipt of El Maternity benefits pursuant to section 22 and El parental benefits pursuant to section 23 of the El Act.

3. Sign an agreement with the Employer making the following undertakings:

• You agree to return to work for the CRA for a period of time as specified in your Maternity/Parental Leave Agreement & Undertaking,

• You agree to repay a proportionate amount of your maternity/parental allowance corresponding to the amount of time you failed to work in compliance with your Maternity/Parental Leave Agreement & Undertaking to return to work for the CRA for the minimum period as described in the above paragraph (except in cases of lay-off, death, early termination due to lack of work or discontinuance of a function of a specified period of employment that would have been sufficient to meet these obligations, or having become disabled as defined in the Public Service Superannuation Act (PSSA)).

4. You are on authorized maternity/parental LWOP.

5. The allowance is not paid in recognition of other El benefits such as sick benefits.

[emphasis in original]

 

[16] The letter included the following note:

Note: Term employees are eligible for allowance payments equal to the term of their contract, but have the option of full maternity/parental allowance payments with the understanding that if their term is not renewed, the overpayment must be recovered. To prevent the inconvenience of repaying the maternity/parental allowance received, you may choose to delay the payment of your allowance until you are certain of an extension of your specified period of employment.

...

[emphasis in the original]

 

[17] The letter also set out the process for recovering overpayments, as follows:

Overpayment(s) will be recovered from first available funds (this includes your maternity and/or parental allowance). If your overpayment has not been fully recovered as indicated above, it will be recovered from first available funds upon your return to duty.

...

 

[18] A CRA compensation officer spoke to the grievor on November 12, 2015, to discuss her maternity leave. The grievor had no recollection of this conversation, and the compensation officer did not testify. The notes from the phone conversation state that the grievor was advised that maternity allowance payments could be taken at any time and that if she were not rehired within 90 days of being “struck off strength”, any allowance payments would become an overpayment.

[19] On November 23, 2015, the grievor began her maternity/parental leave. Her child was born on December 2, 2015.

[20] The grievor discussed the details of a maternity/parental allowance with a compensation officer on December 17, 2015. The grievor had no recollection of this conversation. The compensation officer’s notes of the call state:

...

ee [sic] was advised that based on the collective agreement and the birth of baby ee may return to work 52 weeks from BOB [birth of baby], ee was advised if she decides to change her return date to work date she will need to request it from the team leader and they will need to amend maternity/parental without pay webform and the return to work date will have to be amended on the agreement and undertaking form, keeping in mind that this does not extend that allowance payments and the additional days would be leave without pay.

[sic throughout]

 

[21] On January 7, 2016, the grievor requested the maternity allowance. She testified that although she had first decided not to take it, her financial situation had changed, and she needed the additional income.

[22] On January 15, 2016, the grievor signed the undertaking for the maternity allowance and parental allowance. Sandra Batten, a manager, signed on behalf of the CRA. Both the grievor and Ms. Batten had no recollection of signing the undertaking or any discussion about its terms. The terms of the undertaking included the following:

1. The present agreement ... is in conformity with clauses 38.01 and 38.02 of the collective agreement....

2. In conformity with sections 38.02(a)(iii)(A) & (B), I undertake to return to work for the CRA on 21/11/2016, unless this date is modified by the approval of another form of leave, and will work for a period equal to the period I was in receipt of my maternity allowance.

3. I recognize the implication of section 38.02(a)(iii)(C) of the collective agreement that should I fail to return to work as stipulated in paragraph 2 above, I will be indebted to the CRA for the applicable period.

4. I recognize that I will not be required to repay the CRA, as provided for in section 38.02(a)(iii)(C), if any of the situations listed in section 38.02(a)(iii)(D) (i) through (vi) apply to me.

 

[23] The terms of the undertaking relating to parental leave are identical, other than a reference to clause 48.02 of the collective agreement (parental leave).

[24] The undertaking also included the following note: “Note: If you are a term employee, you should ensure that your remaining period of employment would permit you to fulfill your return to work agreement. Otherwise you will be indebted to the CRA for the applicable period” [emphasis in the original].

[25] Although the grievor had no recollection of any discussion about the undertaking, she testified that at the time, she understood it to mean that she would return to work on November 21, 2016, and that as long as she returned and worked for a period equal to the time of her leave, she would not have to pay the allowance back.

[26] Ms. Batten also had no recollection of the signing of the undertaking. She testified that the return-to-work date of November 21, 2016, was included based on an assumption that the grievor would have been working for the CRA for the whole period had she not been on maternity leave, and that date would have been her natural return date, had she been under contract. She also testified that the end date of March 31, 2016, was not used in the undertaking because the undertaking covered a future period, and as of its signing, the parties would not have known if the grievor would be extended past March 31, 2016.

[27] Although Ms. Batten had no recollection of her conversation with the grievor, she testified that she always spoke to employees going on maternity leave and routinely recommended to term employees that they not take the allowance unless their remaining term appointment was for the entire period of their maternity leave.

[28] The grievor received her maternity allowance from November 23, 2015, to March 26, 2016, in the amount of $6148.68.

[29] The grievor’s term employment came to an end on March 31, 2016. The employer issued her a “Record of Employment”.

[30] On November 2, 2016, a CRA compensation advisor emailed the grievor a letter stating that she had been overpaid for her maternity allowance:

A review of your maternity and/or parental allowance payments for the period from November 22, 2015 to March 26, 2016 indicates you have been overpaid due to:

• Not fulfilling your return to work obligation as per the Maternity/Parental Leave Agreement and Undertaking you signed for your period of Maternity/Parental leave without pay.

The amount of the overpayment is $6,148.68.

You can reduce or eliminate your overpayment by making a payment on your account. To make a payment, or to fully reconcile your account, please submit a cheque or money order made payable to the Receiver General for Canada and indicate your PRI on the front of the cheque or money order ...

...

You should also indicate that the cheque or money order is to reconcile a matenity/parental allowance overpayment.

If you return to work for the Canada Revenue Agency before this debt has been repaid, payment will be taken, without further notice, from the first available funds until the debt is cleared.

If you have any questions regarding this letter, please contact National Enquiries Services....

 

[31] The grievor testified that when she received this letter, she remained under the impression that she could still fulfil the allowance requirements by returning to work by the agreed-upon date of November 21, 2016. She did not recall if she called the provided number to discuss the letter. There is no record of a call in the logs from the CRA Compensation Centre.

[32] On November 14, 2016, the grievor spoke with her team lead at the CRA, who agreed that she could return to work on November 24, 2016, rather than on November 21, 2016. On November 16, 2016, the grievor was offered a term appointment from November 24, 2016, until March 31, 2017.

[33] On December 14, 2016, the grievor did not receive her first scheduled pay. She testified that she had received no notice that her first cheque would be entirely “clawed back”. However, the letter of November 2, 2016, stated that payment would be taken “without further notice” from the first available funds upon her return to work at the CRA.

[34] The grievor contacted a CRA compensation officer, who informed her that the entire amount of her pay had been recovered due to the maternity allowance overpayment. In an email to the grievor on December 15, 2016, the compensation officer told her that she could apply to reduce the amount deducted from each pay, due to financial hardship.

[35] The grievor did not recall when she first approached her bargaining agent for assistance, although it was after the recovery from her first pay cheque. She stated that she likely mentioned it to a co-worker, who told her that the bargaining agent might be able to assist her. She testified that she had never worked in a unionized workplace before and that although she knew that she was unionized, she did not know the function of a bargaining agent. She contacted the chief shop steward, Maureen Getson. Ms. Getson could not recall the date that she was contacted but estimated that it was sometime in mid-to-late December 2016.

[36] On December 20, 2016, the grievor applied for a reduction to the payment recovery amounts, due to financial hardship. The recovery amount was first reduced to $800.00 per pay period and then to $300.00.

[37] Ms. Getson outlined the concerns about the overpayment in an email to the bargaining agent’s local president on January 10, 2017. The email was forwarded to Paul Morin, Assistant Director, Human Resources Branch, CRA, who then requested a response from Emiliano Galera, Assistant Director, CRA Compensation Centre, in Winnipeg, Manitoba. He provided this response in an email on January 11, 2017:

...

The employee was Terminated (SOS) at her contract end date of March 31, 2016. Therefore, she does not remain on maternity/parental leave with CRA, as she is no longer considered an employee of CRA once the SOS occurs. The only way the employee would remain on maternity/parental leave with CRA is if her contract was extended and/or she would have received a new contract within the 90 days, then we would put her back on maternity/parental leave without pay.

...

Any employee (term or perm [sic]) covered by the Collective Agreement is always “eligible” to receive the top-up allowance payments, provided they meet the eligibility requirements. The complication with any term is whether or not they will have to pay some/all of it back... all hinging on contract extensions/new contracts/SOS. That is why some of our term employees delay taking the allowance payments until such time as they return to work and/or have a contract that ensures that they will not be in jeopardy of having to pay the allowance payments back.

The benefit letter we send out indicates what their current end of term date is and that the approval of the maternity/parental LWOP should not be construed as an extension of their term employment contract with CRA....

Clause 38.02 of the Collective Agreement must be read/applied in its entirety. The point that is missed in the email below [from the bargaining agent] is the fact that she was not rehired (did not receive a new contract within 90 days). As well, the letter the employee received regarding the overpayment amount indicates it was due to not fulfilling the return to work obligation, not that her current contract does not fulfill the return to work obligations as indicated below. Her new contract (7 months later) has no bearing in this case.

[sic throughout]

 

[38] Mr. Galera testified that for the return date specified in the undertaking to make any sense, the grievor would have had to receive term extensions at least until that date. He testified that since she received none, the return date did not come into play. He agreed in cross-examination that the undertaking was unique and stated that it was “not worth the paper it was written on”.

[39] Mr. Galera’s email was forwarded to Ms. Getson on January 12, 2017. The grievor filed her grievance on January 27, 2017.

[40] Ms. Getson testified that in her view, the time limit for filing a grievance started to run on January 12, 2017. She testified that until then, there was nothing to grieve, as the bargaining agent and the employer had been actively trying to resolve the matter, and the bargaining agent did not receive a final answer until January 12, 2017. She explained the delay addressing the issue (between December 14 and January 12) as due in part to the intervening holiday period.

[41] On May 17, 2017, the last recovery payment was processed, and the overpayment was recovered in full.

[42] On June 15, 2017, the grievor’s term employment was extended to July 28, 2017. On July 13, 2017, it was extended to September 1, 2017. On August 15, 2017, it was extended to September 29, 2017. She then obtained other employment and is no longer employed in the federal public service.

IV. The timeliness of the grievance, and the extension-of-time request

A. Introduction

[43] The employer objected to the referral of this grievance to adjudication because it was untimely. The bargaining agent disputed that it was untimely. In the alternative, the bargaining agent submitted that I should exercise my discretion to extend the time limit for filing the grievance.

B. Reasons

1. Is the grievance untimely?

[44] Clause 18.11 of the collective agreement allows an employee to present a grievance not later than the 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.” An “employee” is defined in clause 2.01 of the collective agreement as a person defined as an employee in the Act and who is a member of the bargaining unit. Part 2 of the Act defines an employee as a person employed in the public service, with some exceptions that are not relevant for the purposes of this grievance.

[45] The employer submitted that the grievor first became aware of the overpayment obligation when she received the letter of November 2, 2016, advising her of the overpayment. The employer recognized that the grievor could not file a grievance until it re-employed her on November 24, 2016. Its position is that the time limit for filing a grievance started on her re-employment. The grievance was filed on January 27, 2017 — 64 days after her re-employment date.

[46] The bargaining agent’s position is that the time limit for filing a grievance started only when Ms. Getson received a reply to her email on January 12, 2017.

[47] I find that the grievance was untimely. Although the grievor was advised of an overpayment by letter on November 2, 2016, she was not an employee at that time. I note that the collective agreement refers to notice to an employee. Accordingly, the employer did not, by its letter to the grievor of November 2, 2016, notify an employee orally or in writing that it would be recovering an overpayment from her first pay period. As a result, the first notice the grievor received, as an employee, was on the date of her first pay – December 14, 2016.

[48] The time limit under the grievance provision in the collective agreement therefore started to run on December 14, 2016. The grievance was therefore filed 42 days after the grievor first became aware of the employer’s actions that gave rise to this grievance.

[49] Ongoing discussions between a bargaining agent and the employer do not suspend the time limit unless the parties have agreed to suspend it. Clause 18.01 of the collective agreement sets out a formal process for giving notice to facilitate informal discussions. The bargaining agent agreed that it did not engage that clause.

[50] Therefore, I find that the grievance was not timely.

2. Should the time limit be extended?

[51] Applications for extensions of time are made under s. 61 of the Regulations, which allow for an extension of time by the agreement of the parties or by an order of the panel of the Board “in the interest of fairness”.

[52] Both parties relied on the summary of the criteria for granting an extension of time set out as follows in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1:

• 1) clear, cogent, and compelling reasons for the delay;

• 2) the length of the delay;

• 3) the due diligence of the grievor;

• 4) balancing the injustice to the employee against the prejudice to the employer in granting an extension; and

• 5) the chance of success of the grievance.

 

[53] Time limits are meant to be respected by the parties and should be extended only in exceptional circumstances. Those circumstances always depend on the facts of each case. See, for example, Salain v. Canada Revenue Agency, 2010 PSLRB 117.

a. The reasons for the delay

[54] The bargaining agent submitted that the grievor’s delay consulting it was due to her lack of knowledge of her rights and her unfamiliarity with its function in the workplace. It submitted that there was no delay seeking its assistance after she learned that it might help. It submitted that once she contacted its local representative, she took steps to ascertain the nature of the dispute and filed a grievance shortly after the employer confirmed its position. The bargaining agent submitted that if it erred in calculating the time limit for filing the grievance, it would be a factor in favour of granting the extension.

[55] The employer submitted that there was no “clear, cogent and compelling” reason for the delay and that the Board and its predecessors have determined that a lack of knowledge is not a clear, cogent, and compelling reason for a delay (see Salain and Schenkman).

[56] I agree that a lack of familiarity with rights under the collective agreement is not a clear, cogent, or compelling reason for the delay in this case. Also, having ongoing discussions to resolve a labour relations issue is not a clear, cogent, or compelling reason for a delay; see Salain.

[57] However, much of the delay in filing a grievance is explained by the confusion on the part of the grievor about what had been communicated to her by her employer. As discussed later in this decision, the undertaking signed by the grievor clearly indicated to her that she would not have to repay the maternity allowance if she returned to work by November 21, 2016. Obviously, what concentrated her attention on this contradictory communication was the claw back of her pay on December 14, 2015. At that point, she consulted with her bargaining agent. I find this to be a clear, cogent and compelling reason for her delay in investigating her rights. In addition, part of the delay can be attributed to the holiday period at the end of December. This also contributed to the clear, cogent and compelling reasons for at least part of the delay.

b. The length of the delay

[58] The parties disagreed on the length of the delay. The employer’s position is that the time to file a grievance started to run on November 24, 2016 (the date of the grievor’s rehiring), while the bargaining agent’s position (in its alternative) is that it started on December 14, 2016 (the date of the overpayment recovery). I have already determined that the time started to run on December 14, 2016.

[59] I find that the length of the delay was not significant, as the grievance was filed by January 27, 2017.

c. The due diligence of the grievor

[60] The employer submitted that the grievor did not exercise due diligence, since she was aware of the overpayment in November and did not raise any concerns until mid-December, when she did not receive her pay. The bargaining agent submitted that she exercised due diligence as soon as the first overpayment recovery was made.

[61] Although the grievor had been advised of the overpayment in early November 2016 and the consequences, including that it would be recovered from her first pay cheque, this was in the context of the confusion about earlier commitments of the employer that she would not have to pay back the allowance. I have also already determined that the time limit for filing the grievance started on December 14, 2016. The grievor first contacted her bargaining agent shortly after this date, exercising due diligence in pursuing her rights through her bargaining agent. As I have also noted some of the delay is attributable to the holiday period.

d. The injustice to the employee versus the prejudice to the employer

[62] The bargaining agent submitted that the grievor would experience an injustice were the grievance dismissed on a “technicality”. She would lose the opportunity to have her grievance heard, which could potentially deprive her of a remedy that given her financial circumstances, was not insignificant. The bargaining agent argued that there was no prejudice to the employer, as the grievance was filed shortly after the time limit had expired.

[63] The employer submitted that this issue is moot, as the grievor had the opportunity to have her grievance heard on the merits before the Board.

[64] The employer submitted that there was prejudice to it and to taxpayers, as three years had passed since the bargaining agent filed the grievance in an untimely fashion. The employer submitted that it had spent “taxpayer dollars” addressing the grievance. It also submitted that time had taken a toll on the witnesses’ memories.

[65] The employer’s argument with respect to prejudice is not supported by the facts. The grievance was filed in January 2017, within a month of the expiry of the time limit. The delays reaching a hearing are irrelevant in an application for an extension of time; see Safire v. Treasury Board (Department of Veterans Affairs), 2013 PSLRB 97.

[66] Although the employer is correct that the grievor did have an opportunity to argue the grievance on the merits, in the absence of an order extending the time limit, such a hearing cannot result in a remedy. For the most part, grievors pursue grievances for a remedy, not just to be heard.

[67] I do not accept the employer’s suggestion that the Board, when exercising its discretion, should consider prejudice to taxpayers. Collective agreements are made between employers and bargaining agents. Taxpayers are not parties to this agreement. It is true that most of the employer’s activities are funded through taxes. It is also the case that the expenditure of resources can be a factor when determining prejudice to an employer by extending a time limit (when faced with a very lengthy delay, for example). However, the fact that those employer resources are funded by “taxpayer dollars” is not a relevant factor in determining the prejudice to the employer.

[68] In this case, there is no prejudice to the employer and a potential injustice for the grievor in not granting an extension.

e. The chance of success of the grievance

[69] Since the hearing proceeded on the merits of the grievance, this factor is not relevant.

f. The weighing of the factors

[70] The bargaining agent submitted that the weighing of the factors supported granting an extension. The employer submitted that in the absence of a clear, cogent, and compelling reason for the delay, the other factors are of little relevance (see Callegaro v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 110; Lagacé v. Treasury Board (Immigration and Refugee Board), 2011 PSLRB 68; Brassard v. Treasury Board (Department of Public Works and Government Services), 2013 PSLRB 102; Bertrand v. Treasury Board, 2011 PSLRB 92; and Fontaine v. Treasury Board (Canada Border Services Agency), 2012 PSLRB 39.

[71] In this case, I have found that there was a clear, compelling and cogent reason for the delay in filing a grievance. I find that in weighing the factors, the relatively short period of the delay, the diligence of the grievor after the first recovery payment, the lack of prejudice to the employer and the potential injustice for the grievor, support an extension of the time limits in this case.

[72] I therefore grant the extension of time.

V. Maternity allowance overpayment recovery

A. Submissions

[73] The parties made written submissions, which I reviewed. I have summarized them in this section.

[74] The bargaining agent submitted that the maternity allowance provisions in the collective agreement did not require the grievor to repay the allowance that she received. In the alternative, it submitted that the employer was prevented from recovering any overpayment, due to promissory estoppel.

[75] The employer submitted that the collective agreement provision created an overpayment of benefits. It also submitted that the grievor did not establish promissory estoppel.

[76] The parties agreed with the general principles of collective agreement interpretation, which are that the words must be read in their entire context, in their grammatical and ordinary sense, and harmoniously with the scheme of the agreement, its object, and the intention of the parties (see Brown and Beatty, Canadian Labour Arbitration, 5th ed., at 4:2100). Parties are assumed to have intended the words used in an agreement, and those words must be construed in their ordinary and plain meanings, unless such an interpretation is likely to result in absurdity or would be inconsistent with the entire collective agreement.

[77] The bargaining agent submitted that anomalies or ill-considered results are not sufficient to depart from the plain meaning of the provisions in issue (see DHL Express (Canada) Ltd. v. CAW-Canada, Local 4215 (2004), 124 L.A.C. (4th) 271). The bargaining agent submitted that there is a high bar for finding an absurdity; it requires the decision maker to be satisfied that to apply the plain meaning of the words “serves no possible labour relations purpose” (see Ontario Finnish Resthome Ass’n v. SEIU, Local 268, [2004] O.L.A.A. No. 371 (QL)).

[78] The employer stated that the fact that a particular provision may seem unfair is not a reason for an adjudicator to ignore it if the provision is otherwise clear (see Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112).

[79] The bargaining agent submitted that the employer’s decision to recover the overpayment violated clause 38.02 of the collective agreement. The bargaining agent stated that the grievor had met the two requirements in clause 38.02(a)(ii): she agreed to return to work “... on the expiry date of her maternity leave without pay unless the return to work date [was] modified by the approval of another form of leave,” and she worked for a period equal to the period for which she received the maternity allowance. The bargaining agent submitted that the collective agreement requirement was fulfilled by the undertaking she signed -- when she agreed to return to work on November 21, 2016. It submitted that the parties had agreed to a specific return date, even though her term appointment was scheduled to end on March 31, 2017. Since she complied with the terms of the undertaking and the provisions of the collective agreement, there was no repayment obligation.

[80] The bargaining agent noted that the employer agreed to a date of return in November 2016, rather than an earlier date of March 31, 2016. There was no principled basis to relieve the employer of the consequences of its agreement or to declare it somehow invalid for reasons that were not expressly contemplated in the undertaking. The bargaining agent submitted that there was no reason for the grievor to believe that it would somehow be invalidated if she did not secure a contract within 90 days of the end of her term on March 31, 2016.

[81] The employer noted that when the undertaking was signed, the grievor was still an employee, which is why she was entitled to request the maternity allowance top-up, as long as she met the other requirements, which she did. However, on March 31, 2016, when her term came to its end, the grievor ceased to be an employee of the CRA. This event triggered the 90-day grace period stipulated in clause 38.02(a)(iii)(D)(iv). The employer submitted that 90 days passed with no new contract, and so, as stipulated in the undertaking and the collective agreement, the grievor became indebted to the CRA for the amount she had received. The employer also pointed to the note in the undertaking signed by the grievor about ensuring that the remaining period of employment would permit the employee to fulfil her return-to-work agreement. The employer submitted that the fact that the grievor received a new term appointment in November 2016 is irrelevant. It submitted that the only relevant contract would have been one that had been obtained within 90 days of March 31, 2016.

[82] The bargaining agent submitted that the grievor did ensure that her remaining period of employment would permit her to fulfil her return-to-work agreement, as evidenced by the undertaking, which she signed. The employer’s interpretation of clause 38.02 requires pretending that the undertaking does not exist or states something other than what it states.

[83] The bargaining agent submitted that the grievor might not have known whether there would have been work available on the return date set out in the undertaking, but she was entitled to take that risk. The bargaining agent argued that when the grievor was able to secure continued employment to fulfil her return-to-work agreement, the employer “moved the goal posts on her”. The employer received its end of the bargain, but the grievor did not receive hers.

[84] In the alternative, the bargaining agent submitted that the employer should be estopped from recovering the maternity allowance. The employer represented to the grievor that she would be indebted to it only if she failed to return to work on the agreed-upon date. It would be inequitable for the CRA to renege on that agreement.

[85] The bargaining agent submitted that the elements of estoppel are present in this case: the representation in the undertaking was unequivocal that if the grievor returned to work on November 21, 2016, there would be no repayment obligation. None of the information provided to her at the time the undertaking was signed indicated that it would be invalid if she did not secure a contract within 90 days of March 31, 2016.

[86] The bargaining agent submitted that the grievor had no choice but to enter into the undertaking to gain access to her maternity allowance and that she relied on the representation in the undertaking that she would not have to repay the allowance if she returned to work on the agreed-upon date.

[87] The employer submitted that for estoppel to apply, there must have been a promise between the parties to the collective agreement and that in this case, the grievor is not a party to it (see Pronovost v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 93).

[88] The employer submitted that in the alternative, the bargaining agent did not establish all the requirements of estoppel. The employer submitted that it did not make a clear and unambiguous promise to the grievor that she would be rehired before November 21, 2016, or that it would not claw back the maternity allowance. It also submitted that she did not rely on the alleged promise to her detriment. There was no obligation for her to request the top-up. There is no evidence that the employer influenced her decision to request the allowance. It submitted that she would have signed the undertaking in any event, due to her financial situation. It also submitted that financial hardship is not detrimental reliance; see Murchison v. Treasury Board (Department of Human Resources and Skills Development), 2010 PSLRB 93.

[89] The bargaining agent submitted that the Board has applied estoppel in pay-related issues and that there should be no controversy that estoppel can apply between an employer and an employee in a bargaining unit.

B. Reasons

[90] I find that the grievor has established promissory estoppel by the employer and the grievance is allowed on this basis.

[91] The collective agreement and the undertaking signed by the grievor must be examined together to determine her obligation to reimburse the payment of the maternity allowance.

[92] The grievor did not return to work on November 21, 2016 – the return to work date set out in the undertaking. However, her team leader agreed to her return to work on November 24, 2016. I find that this agreement was an amendment of the undertaking to indicate a return to work date of November 24, 2016.

[93] Although the grievor signed a maternity/parental allowance undertaking, the parties agree that she only received the maternity allowance. The maternity allowance provision in the collective agreement must be interpreted in concert with the maternity leave without pay provision in the collective agreement. The right to receive a maternity allowance is contingent on an employee being granted maternity leave without pay. In this case, the grievor was granted maternity leave without pay from November 23, 2015 until the end of her term appointment in March 2016.

[94] The collective agreement requires that in order to receive the maternity allowance, the employee must agree (in an undertaking) to return to work on the expiry date of her maternity leave without pay, unless she receives some other form of leave. The grievor was on maternity leave until the end of her term of employment. She did not agree to return to work at the end of her maternity leave without pay. The relevant exception to the required return to work on the expiry of the maternity leave without pay is if the former employee is re-hired within 90 days of the end of her term.

[95] The grievor was not re-hired within the 90-day period set out in the collective agreement. She was not rehired until November 24, 2016, almost 9 months after the end of her term employment. As a result, a plain reading of the collective agreement indicates that she was required to repay the allowance. However, the undertaking she signed must also be considered.

[96] The undertaking is a standard form agreement, requiring the parties to fill in the blanks. The signatories to the undertaking are the grievor and the manager on behalf of the employer. In signing the undertaking, the grievor and the employer agreed that it conformed with clause 38.02 of the collective agreement. The undertaking is not a standalone agreement -- it must be interpreted in light of clause 38.02. The confusing part of the undertaking is in its second clause, where the date that she agrees to return to work (November 21, 2016) is not aligned with the end of her maternity leave without pay, as follows:

In conformity with sections 38.02(a)(iii)(A) & (B), I undertake to return to work for the CRA on 21/11/2016, unless this date is modified by the approval of another form of leave, and will work for a period equal to the period I was in receipt of my maternity allowance.

 

[97] The return-to-work date used in the undertaking is not in conformity with clause 38.02(a)(iii)(A) of the collective agreement. That clause in the collective agreement required the grievor to sign an undertaking with the employer stating that she will return to work on the expiry date of her maternity leave without pay (unless that date is modified by another form of approved leave or within 90 days of the end of her term). At the time of signing the undertaking, the expiry date of her maternity leave without pay was March 31, 2016; however, as noted above, the return to work date specified in the undertaking the grievor was asked to sign was November 21, 2016. The confusion was compounded by the following clause of the undertaking: “I recognize the implication of section 38.02(a)(iii)(C) of the collective agreement that should I fail to return to work as stipulated in paragraph 2 above, I will be indebted to the CRA for the applicable period.” The clause implies that only if the grievor failed to return to work by November 21, 2016 (the date “stipulated” in paragraph 2), would she have been indebted to the CRA for the allowance.

[98] Although the undertaking, as signed, was not in conformity with the collective agreement, this does not end the matter. I must also consider the grievor’s argument of promissory estoppel.

[99] I find, on a balance of probabilities, that the grievor has established promissory estoppel. The three conditions that must be met to establish a claim of estoppel were succinctly summarized as follows in Munroe v. Treasury Board (Correctional Service of Canada), 2010 PSLRB 56: “... 1) a party made a representation, either by words or by conduct; 2) the representation was intended to be acted on by the other party; and 3) the other party did in fact rely on the representation.” The representation must be clear and unequivocal, and there must be a detrimental reliance on that representation; see Paquet v. Treasury Board (Department of Public Works and Government Services - Translation Bureau), 2016 PSLREB 30.

[100] The employer argued that the doctrine of promissory estoppel could not be applied in this case, as the grievor was not a party to the collective agreement. However, the alleged estoppel in this case arose from the grievor’s signing of the undertaking. Therefore, the issue of estoppel can be addressed.

[101] In this case, the employer did make a clear and unequivocal representation in the undertaking that if the worker returned to work by November 21, 2016, it would not recover the allowance. Unfortunately, none of the witnesses had any recollection of their conversations about the maternity allowance. I am therefore left with the documentary evidence. I find that the documentary evidence supports that a clear and unequivocal representation was made that the maternity allowance would not be recovered if the grievor returned to work in November 2016 and worked for an equivalent period.

[102] The representation by the employer was in the undertaking, but for context it is important to look at some of the documentary evidence leading up to the signing of the undertaking.

[103] The initial letter that the grievor received on November 10, 2015, when she first applied for maternity leave, contained the following inaccurate summary of the maternity allowance provisions in the collective agreement:

...

3. Sign an agreement with the Employer making the following undertakings:

• You agree to return to work for the CRA for a period of time as specified in your Maternity/Parental Leave Agreement & Undertaking,

• You agree to repay a proportionate amount of your maternity/parental allowance corresponding to the amount of time you failed to work in compliance with your Maternity/Parental Leave Agreement & Undertaking to return to work for the CRA for the minimum period as described in the above paragraph...

Note: Term employees are eligible for allowance payments equal to the term of their contract, but have the option of full maternity/parental allowance payments with the understanding that if their term is not renewed, the overpayment must be recovered.

[emphasis added]

 

[104] The letter is inaccurate because it does not say that an employee had to agree to return to work at the expiry of her maternity leave without pay (as set out in the collective agreement) – it states that the return to work date is the one set out in the undertaking. The time specified in the signed undertaking was November 21, 2016.

[105] The letter is also ambiguous because the grievor’s maternity allowance of 18 weeks did coincide with the number of weeks of maternity leave taken from November 2015 until the end of her term of employment in March 2016, as seemingly required by the Note at the end of the letter.

[106] The notes of the compensation officer from the conversation of December 15, 2015, also record misleading information that was provided to the grievor. The grievor was told that she could return to work 52 weeks from the birth of her child.

[107] The undertaking was signed by the grievor and a representative of management. In that undertaking, the grievor undertook to “return to work for the CRA on 21/11/2016”. She also recognized that should she “fail to return to work as stipulated” she would be indebted to the CRA for the applicable period. The “as stipulated” is a direct reference to the date of November 21, 2016. This is a clear commitment to a return to work date and a recognition that if she did not return by that date, she would have to repay the maternity allowance.

[108] In light of a clear commitment by the grievor and the employer of a return to work on November 21, 2016, the note in the undertaking that a term employee should ensure that her remaining period of employment would permit fulfilling the return to work agreement is ambiguous. It could be interpreted as referring to the amount of time she would have to work after her return on November 21, 2016.

[109] Given that the representation from the employer about the return to work date, and the statement that she would not have to repay the allowance if she returned by that date and worked for an equivalent period, I find that the representation was intended to be acted upon by the grievor. The evidence also shows that the grievor did rely on that representation – she accepted the allowance and was surprised when it was clawed back. She also did not seek an earlier appointment which might have eliminated the repayment obligation. The employer submitted that the doctrine of estoppel cannot be used systematically to remedy anything that seems unfair, relying on the Paquet decision. I agree that estoppel should not be used simply to remedy unfairness. However, in Paquet the board member noted that the true idea behind the principle of estoppel (at paragraph 47):

...is that a party cannot knowingly through its actions lead the other party to believe that it will not exercise a given right in a way that misleads. Estoppel is in fact a principle that precludes a party that knowingly gives another party a sense of security about a given interpretation or practice from subsequently requiring the correct application of that clause or practice when the other party is no longer able to negotiate. ...

 

[110] In this case, the employer knowingly gave the grievor a “sense of security” about a return to work date.

[111] I also find that the grievor’s reliance was to her detriment.

[112] The employer relied on Murchison for its position that financial hardship was not detrimental. Murchison involved the over-crediting of vacation leave credits. In granting the grievance, the adjudicator did not rely on estoppel but on an unreasonable exercise of management rights. He made the following comment about financial hardship and detrimental reliance in overpayment cases:

...Financial hardship is not the same as detrimental reliance: detrimental reliance occurs at the time of the error and arises from the fact that the grievor relied on the statement or error of the employer and incurred a debt or acted in a manner which indicated that he/she relied on the employer’s word or error. Financial hardship, on the other hand, arises from the discovery of the error and the consequent request by the employer to repay what has been given in error. This being the case, the doctrine of estoppel, as it has typically been applied in cases related to monetary overpayments, cannot be used by the grievor to found her grievance.

 

[113] In this case, the grievor’s detrimental reliance occurred at the time of the error and in the weeks that followed, when she acted in a manner that showed she relied on the employer’s word. If the return to work date stipulated in the undertaking had been the end of her maternity leave (March 31, 2016) as required under the collective agreement, she would have known that if she was not rehired within 90 days of March 31, 2016, she would have been required to repay the maternity allowance. However, the representation that she relied on was that if she returned to work by November 21, 2016, she would not have to repay that amount. If the representation had not been made, she could have shortened her maternity leave and returned to work earlier or sought another term appointment and applied for parental leave without pay. This was recognized by Mr. Galera in his email of January 11, 2017, where he stated: “[t]he only way the employee would remain on maternity/parental leave with CRA is if her contract was extended and/or she would have received a new contract within the 90 days, then we would put her back on maternity/parental leave without pay”. Instead, she relied on the representation that she would not have to repay the allowance if she returned to work on the stipulated date (and completed a period of employment equivalent to the period that she received the maternity allowance).

[114] Accordingly, I find that the employer was estopped from recovering the maternity allowance.

[115] The grievor requested that I order that the employer reimburse the grievor the amount recovered ($6,148.68), with interest. It also asked that I remain seized to address any issues arising from the implementation of this decision.

[116] Since I have allowed the grievance, the employer is required to repay the $6,148.68 it recovered from the grievor.

[117] Paragraph 226 (2)(c) of the Federal Public Sector Labour Relations Act allows the Board to only award interest in grievances involving termination, demotion, suspension or financial penalty. Accordingly, I do not have authority to award interest.

[118] Since the payment of the amount owing is a straightforward transaction, I decline to retain jurisdiction on the implementation of the awarded remedy.

[119] For all the above reasons, the Board makes the following order:

(The Order appears on the next page)

VI. Order

[120] The grievance is allowed.

[121] The employer is required to pay to the grievor the amount of $6,148.68, within 90 days of the date of this decision.

March 19, 2021.

Ian R. Mackenzie,

a panel of the Federal Public Sector

Labour Relations and Employment Board