Date: 20230223

File: 568-02-46174

XR: 566-02-45595

 

Citation: 2023 FPSLREB 22

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

 

Kendell Slusarchuk

Applicant

 

and

 

Treasury Board

(Correctional Service of Canada)

 

Respondent

Indexed as

Slusarchuk v. Treasury Board (Correctional Service of Canada)

In the matter of an application for an extension of time referred to in paragraph 61(b) of the Federal Public Sector Labour Relations Regulations

Before: Audrey Lizotte, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Applicant: Sean Kelly, Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN

For the Respondent: John Mendonça, Treasury Board Secretariat

Decided on the basis of written submissions,
filed October 6, 20, and 27 and December 16, 2022.

REASONS FOR DECISION

I. Application before the Board

[1] Kendell Slusarchuk (“the applicant”) is a correctional officer and detector dog handler with the Correctional Service of Canada, which, for the purposes of this decision, is designated as the respondent.

[2] The applicant is part of the Correctional Officers Group bargaining unit, represented by the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN) (“the bargaining agent”).

[3] In the winter of 2022, the applicant attended a five-week training course in Rigaud, Quebec, during which he was responsible for the care of his partner dog. This responsibility extended outside the normally scheduled hours of training. On May 18, 2022, he presented a grievance for the payment of overtime for that period under clause 21.12 of the Correctional Officers Group bargaining unit collective agreement (expired on May 5, 2022; “the collective agreement”).

[4] The respondent denied the grievance as untimely in its final level decision because the grievance had been transmitted to that level outside the timeline set out in the collective agreement for doing so.

[5] On August 31, 2022, the bargaining agent referred the applicant’s grievance to adjudication. The Federal Public Sector Labour Relations and Employment Board (“the Board”) Secretariat’s Registry provided the respondent with a copy of the notice of the reference to adjudication on September 23, 2022.

[6] On October 6, 2022, before the deadline set out in s. 95 of the Federal Public Sector Labour Relations Regulations (SOR/2005-79; “the Regulations”), the respondent raised an objection to the referral of the grievance to adjudication on the basis that the transmittal of the grievance to the final level of the individual grievance process was untimely.

[7] On October 20, 2022, the bargaining agent replied, on behalf of the applicant, to the respondent’s objection. It stated that the reason for the delay was solely attributable to it and should not be held against the applicant. It asked the Board to grant an extension of time under s. 61(b) of the Regulations for the transmittal of the applicant’s grievance to the final level of the grievance process.

[8] This decision deals only with the respondent’s objection to the referral of the grievance to adjudication on the basis that the transmittal of the grievance to the final level of the individual grievance process was untimely and the ensuing application for an extension of time. There is no dispute between the parties that the applicant’s grievance was transmitted to that level outside the timeline set out in the collective agreement for doing so. If the application is granted, the grievance bearing file number 566-02-45595 will be scheduled for a hearing on the merits at a later date. If it is denied, the objection will be upheld and the Board’s grievance file will be ordered closed.

II. The relevant timeline

[9] The applicant presented his grievance to the bargaining agent on May 18, 2022. It was transmitted by the bargaining agent to the second level of the individual grievance process on May 19, 2022. The respondent provided its second level decision on May 31, 2022. The deadline to transmit the grievance to the final level was June 15, 2022, however, it was only transmitted by the bargaining agent on June 23, 2022, which was six working days after the deadline. The respondent provided its final level decision on July 26, 2022, denying the grievance as untimely transmitted to that level. The grievance was referred to adjudication on August 31, 2022.

III. The parties’ submissions

[10] The parties agree that the Board will generally consider the five criteria set out in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, when deciding on an application for an extension of time. Those criteria are as follows (from paragraph 75 of Schenkman):

· 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.

 

A. Clear, cogent, and compelling reasons for the delay

[11] The bargaining agent states that the delay referring the applicant’s grievance to the final level of the individual grievance process was entirely attributable to it. Precisely, it admitted that the delay was due to a combination of the inability, absence, or negligence of one of its grievance officers. It indicated that at the relevant time, the grievance officer was overwhelmed by his duties, was in the process of resigning from his role, and was mostly absent from work between May 31 and June 28, 2022. This resulted in the neglect to transmit the grievance to the final level on time.

[12] The bargaining agent acknowledges that it is a sophisticated union, with ample resources; however, it states that it is not immune from its individual representatives’ errors, absences, or negligence causing delays for a small number of its voluminous amount of grievances. It argues that these are clear, compelling, and convincing reasons to extend the time limit.

[13] The bargaining agent relies upon Grekou v. Treasury Board (Department of National Defence), 2020 FPSLREB 94 at para. 21, in which the Board made the following statements when referring to two earlier decisions rendered on applications for extensions of time:

[21] In both International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board, 2013 PSLRB 144, and D’Alessandro v. Treasury Board (Department of Justice), 2019 FPSLREB 79, the grievance was about the interpretation or application of a collective agreement, so the union’s support was essential to filing it. In both cases, it was deemed that the delay was entirely attributable to the union and that it would have been unjust for the grievor to pay the price for the union’s lack of diligence.

 

[14] The respondent states that it understands the bargaining agent’s position that regardless of the resources at hand, errors, absences, and negligence can still arise and cause delays. But it argues that the bargaining agent’s rationale does not amount to a clear, cogent, and compelling reason for the delay. It argues that transmitting a grievance to the next level of the individual grievance process is not a time-consuming process and that since the bargaining agent admits that it is a well-resourced entity, it should therefore have had measures in place to mitigate such occurrences to ensure that grievances would not be impacted.

[15] The respondent relies on Parker v. Deputy Head (Correctional Service of Canada), 2022 FPSLREB 57, which underscores the imperative that a rationale be provided that clearly accounts for the delay, as follows:

[41] The failure to provide a clear, cogent, and compelling reason for the delay “is of primary importance” (see Martin v. Treasury Board (Correctional Service of Canada), 2021 FPSLREB 62 at para. 33). Indeed, the reason articulated for the delay effectively serves as the anchor upon which the other four criteria can be assessed.

 

B. Length of delay

[16] The bargaining agent argues that given the short delay (six working days) in transmitting the applicant’s grievance to the final level of the individual grievance process, it is reasonable in the circumstances to grant the application for an extension of time. It argues that doing so would still respect the spirit of the time limits.

[17] The bargaining agent relies on Riche v. Treasury Board (Department of National Defence), 2009 PSLRB 157, in which the Chairperson of the Board’s predecessor stated as follows:

34 ... The rationale for a time limit is to prevent the employer from being under perpetual exposure to defend grievances against actions that have long since passed and the union from having to present and argue those grievances. That said, the Regulations provide the ability to exercise discretion as follows to extend time limits in the interest of fairness:

 

[18] I note with interest that the respondent made no representations on the length of the delay.

C. Diligence of the applicant

[19] The bargaining agent states that the applicant was timely in providing it with his grievance at the onset and that he cooperated diligently with it throughout the grievance process.

[20] The bargaining agent relies on Barbe v. Correctional Service of Canada, 2022 FPSLREB 42 at para. 50, in which the Board stated, “If a grievor is not at fault, and if he or she diligently informed the union and helped file the grievance, I do not see how, in all fairness, he or she should then suffer the consequences of the bargaining agent’s errors.”

[21] The bargaining agent states that, as in Barbe, the applicant is not at fault. He diligently informed the bargaining agent and contributed to the filing of his grievance and its advancement at each level of the individual grievance process, including responding to the grievance officer on or around June 12, 2022. It argues that the applicant should not have to suffer the consequences of the errors that it committed.

[22] The respondent argues that it was not made aware of the applicant’s diligence in pursuing the grievance.

D. Balance between the injustice to the applicant and prejudice to the respondent

[23] The bargaining agent states that the injustice caused to the applicant by not extending the time limit would be infinitely greater than the harm, if any, the respondent might suffer if an extension is granted. It argues that the individual grievance process is the only procedure to which the applicant has access to assert his rights under the collective agreement. As such, refusing to extend the time limit would mean the end of his possible remedies.

[24] In terms of prejudice to the respondent, the bargaining agent states that there would be none and relies upon the fact that the respondent is aware of this particular dispute as several other grievances have been filed about the same issue. It urges the Board to conclude, as it did in D’Alessandro v. Treasury Board (Department of Justice), 2019 FPSLREB 79 at para. 27, that “... the employer was always aware of the existence and the nature of the dispute ...”.

[25] The respondent states that there would be no injustice to the applicant if his grievance was held to be untimely as in fact, he was compensated for the time spent with his partner dog under another clause of the collective agreement (s. 43.01(a)).

E. Chances of success of the grievance

[26] The bargaining agent states that to properly weigh the grievance’s chances of success, the Board would have to examine its merits. Since that cannot be done at this stage, the question is whether the grievance has no chance of succeeding (see Schenkman, at para. 83). The bargaining agent’s position is that the Board cannot determine that the grievance has no chance of success.

[27] The respondent, on the other hand, states that the grievance has no chance of success. While it agrees that normally this criterion is subject to further inquiry by the Board at a hearing on the merits, it believes that there is sufficient information to deny the application based on this criterion since the applicant was in fact compensated for the time he spent with his partner dog.

IV. Analysis and reasons

[28] This application was made under s. 61(b) of the Regulations, which provides that, in the interests of fairness and on the application of a party, the Board may grant an extension of time to file a grievance or transmit it to a specific level of the individual grievance process.

[29] The issue to be determined is therefore whether it is in the interest of fairness that the Board exercise its discretion to grant the extension of time requested by the applicant to transmit his grievance to the final level of the individual grievance process.

[30] As noted by the parties, when determining whether an application for an extension of time should be granted, the Board usually uses the five criteria established in Schenkman. In making this determination, the circumstances of each case will affect the importance and weight to be given to each criterion.

[31] The explanation provided for the delay is that it was solely attributable to the bargaining agent. Precisely, the bargaining agent submitted that the delay was due to one of its grievance officers who was overwhelmed, absent from work, and in the process of resigning from his position.

[32] The respondent argued that this did not constitute a clear, cogent and compelling reason for the delay as bargaining agents, such as this one, should have processes in place for these types of situations.

[33] While I agree with the respondent that safeguards are required, I also appreciate that, even with the best systems in place, human error can occur. Should this mean, however, that all human errors amount to a compelling reason for a missed deadline? I do not believe it does. The timelines are meant to be observed and should be taken seriously by the parties.

[34] I find that the explanation given for the delay in transmitting the applicant’s grievance within the applicable timeline provides an understandable reason for the delay, however, given the bargaining agent’s responsibility to ensure safeguards are in place to avoid this type of situation, I conclude that the explanation provided only meets the low end of the threshold for providing clear, cogent and compelling reasons for the delay. Said differently, this first of the five Schenkman criterion would not, of itself, constitute sufficient grounds for granting the extension of time requested by the applicant.

[35] Nevertheless, I find the remaining Schenkman criteria to be much more compelling.

[36] The delay was very short — only six working days. The bargaining agent argued that given that shortness, the respondent was not in any manner prejudiced in its ability to decide the applicant’s grievance at the final level of the individual grievance process. I agree.

[37] In coming to this conclusion, I am heavily influenced by two factors. First, the delay in question was not in presenting the grievance at the first level of the individual grievance process, but in transmitting it to the final level. As such, the respondent had the opportunity to look into the events of the grievance when it was originally filed, when they were still fresh and unaffected by the passage of time. Second, the respondent had already decided the grievance on its merits at the second level on May 31, 2022.

[38] In terms of the third Schenkman criterion, the bargaining agent asserted that the applicant showed diligence in pursuing his grievance and cooperated with it in a timely manner throughout the individual grievance process.

[39] I consider the applicant as having acted with diligence in the circumstances. Indeed, it was reasonable for the applicant to rely, at least for a short time, on his bargaining agent performing its role and transmitting his grievance to the final level of the individual grievance process. His reliance was reasonable, given the promptness with which his bargaining agent had transmitted his grievance to the second level. Indeed, it had done so within one day of initially receiving the grievance from the applicant. Given the short delay for transmitting the grievance to the final level, one cannot fault the applicant for not double-checking that his bargaining agent had transmitted his grievance on time to that level.

[40] As for the fourth Schenkman criterion, having reviewed the parties’ submissions, I find that the injustice to the applicant in not granting an extension of time would far exceed the prejudice to the respondent if an extension was granted. As the bargaining agent indicated, the applicant’s grievance relates to the interpretation and application of the collective agreement, and as such, adjudication is the only process available to the applicant to have his matter addressed. This, coupled with the shortness of the delay at play, the fact that the respondent was well aware of the issue in dispute, and that the respondent had already decided the applicant’s grievance on its merits at the second level of the individual grievance process, leads me to conclude that the respondent would suffer no substantial prejudice were the application allowed.

[41] The last Schenkman criterion relates to the grievance’s chances of success. On this point, the respondent argued that the grievance has none since the applicant has already been compensated for his time pursuant to article 43 of the collective agreement. I appreciate that this is the respondent’s position on the merits of the grievance; however, the matter raised in the grievance is whether the applicant is entitled to overtime compensation under clause 21.12 despite the provisions in article 43. When assessing whether a grievance has a chance of success, the bar by necessity must be set very low, since the matter has yet to be heard. For this reason, I conclude that the grievance raises a legitimate dispute to be resolved at adjudication. It cannot be said to be frivolous or vexatious.

[42] Having reviewed the five criteria set out in Schenkman, I conclude that the application for an extension of time should be granted. I have come to this conclusion appreciating that sound labour relations management is reliant on time limits being respected by all parties, and therefore, the discretion given to the Board to extend them should be exercised exceptionally and judiciously. Indeed, the Regulations require the Board to extend time limits only in the “interest of fairness.”

[43] In coming to this decision, I have carefully reviewed the jurisprudence relied upon by the parties. I find the Barbe decision to be the most on point. In Barbe, the Board remarked that the discretionary power granted to the Board to extend time limits is routed first and foremost in the determination of fairness. At paragraph 25, it states:

[25] ... it seems essential to me to first be concerned with fairness. Sometimes, a party may display so little diligence or provide such a confusing or illogical explanation that the Board cannot in good conscience grant an extension of time. Deadlines exist for a good reason, which is to ensure the most efficient process possible. Therefore, a good reason is necessary to waive them. However, in some cases, while there may be some doubt as to the clarity of the explanations or the parties’ diligence, the concern for fairness prevails.

 

[44] As indicated in paragraph 34 of this decision, I am critical of the explanation provided by the bargaining agent for the delay in transmitting the grievance to the final level of the grievance process as better safeguards should be in place to ensure deadlines are not missed when members of its staff are absent from work for extended periods of time. However, the Board has also shown a great deal of latitude when the cause of a delay is entirely attributable to a bargaining agent and the grievor has otherwise shown diligence in the processing of their grievance.

[45] On this point, the Barbe decision reflects on past decisions of the Board where delays were held to be entirely attributable to bargaining agents and states as follows:

...

[47] In D’Alessandro, the Board found that the union’s failure to file grievances on time was a clear, cogent, and compelling reason. The Board wrote the following at paragraph 29: “Fairness dictates that Mr. D’Alessandro should be able to pursue his grievances, despite his union’s negligence.”

[48] Clearly, the Board has two schools of thought — grievors can be held accountable for their bargaining agents’ errors, or grievors must not be held accountable when they are adversely affected not only by their employers’ actions but also by their bargaining agents’ actions. The dichotomy is clearly explained in the following paragraphs from Copp:

...

[28] The applicant referred me to Thompson [Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 59]. Ms. Thompson grieved her termination of employment more than three months after the time to file a grievance had expired. She stated that the union had filed the grievance on time but that it had stayed on the desk of the respondent’s representative for four months before being processed. The Chairperson did not believe the applicant on that point and found the grievance untimely. He granted the application for an extension of time on the basis that, even if the union were negligent, Ms. Thompson could not be faulted. He stated that the injustice to her of refusing the application outweighed any prejudice that the respondent might suffer for allowing the grievance to be heard. Finally, he stated that fairness dictated that the applicant not be penalized for the union’s inaction of not filing the grievance on time.

[29] I disagree with the decision in Thompson. That decision was written more than five years ago in a jurisprudential context that might not have been as clear as it is now. Since then, it has been decided often that a union’s omissions, negligence or mistakes are not cogent and compelling reasons for extending time. In my opinion, as I stated in Callegaro, “... the applicant and her union cannot be considered as two separate entities...” In that context, the errors of the union are the errors of the applicant.

...

[49] I do not know what my decision would have been had the grievances been 6 years late, as in Martin, or 7.5, as in Edwards. The 20-month delay is significant but does not cause the employer undue prejudice.

[50] With respect, I disagree with the decision in Copp. I prefer the approach in D’Alessandro. If a grievor is not at fault, and if he or she diligently informed the union and helped file the grievance, I do not see how, in all fairness, he or she should then suffer the consequences of the bargaining agent’s errors. I considered several factors: the elapsed time, which is not excessive as in Martin or Edwards; the fact that it is a referral to adjudication and not the filing of a grievance (therefore, the employer is informed); and the fact that the applicants could not have acted alone and thus were dependent on the bargaining agent’s actions.

[Emphasis added]

 

[46] All of the factors highlighted above and relied upon by the Board to come to its conclusion in Barbe are present in this case, save for the duration of the delay which is much shorter in this case – only six working days. As such, I believe the same conclusion should be drawn. It is clearly in the interest of fairness that an extension of time should be granted.

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

(The Order appears on the next page)

V. Order

[48] The application for an extension of time to transmit the grievance at the final level of the individual process is granted.

[49] The objection to the timeliness of the transmittal of the grievance at final level of the individual process is denied.

[50] The grievance in case file 566-02-45595 will be scheduled for a hearing on the merits in due course.

February 23, 2023.

Audrey Lizotte,

a panel of the Federal Public Sector

Labour Relations and Employment Board