FPSLREB Decisions
Decision Information
The grievor filed a grievance requesting 8.5 hours in lieu time and 4.25 hours of family leave for the duration of his shift – the grievance was denied at the first level of the grievance procedure – the grievor transmitted the grievance to the second and final levels, but the employer did not respond at either level within the timelines set out in the collective agreement – the grievor referred the grievance to the Board for adjudication – the employer objected to the Board’s jurisdiction to hear the grievance on the basis that its reference to adjudication was untimely – the collective agreement was silent on the time frame within which a grievance could be referred to adjudication when the employer did not deliver a final-level response – however, the collective agreement stated that when an employee presented a grievance up to and including the final level and the grievance was not dealt with to their satisfaction, they could refer it to adjudication in accordance with the provisions of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2) and the Federal Public Sector Labour Relations Regulations (SOR/2005-79) – under those regulations, the grievor had 40 days after the date on which the employer was required to deliver its response to refer the grievance to adjudication – it was done after the time limit expired as it was done six months late – therefore, it was untimely – the grievor submitted that the employer did not raise its timeliness objection within the established timelines – the Board found that the employer’s objection was raised on the last day it could have been raised – therefore, the objection was timely – the grievor submitted that the Board could exercise its discretion to extend the time for referring the grievance to it for adjudication – the grievor submitted that the reason for the delay was that the bargaining agent’s advisor responsible for referring grievances to the Board for adjudication stopped working and was off work due to health and personal issues – the Board found that the reason for the delay was not clear, cogent, or compelling – the time frame to refer the grievance to the Board was four to six months before the advisor departed his position – it was not clear whether the advisor was unfit to carry out the functions of his position during that time – it also did not explain why other grievances were referred to the Board but the grievor’s was not referred – after the advisor went on leave, another two full months passed before the grievance, which was already out of time to be referred to the Board, was finally referred – no explanation was provided for that delay – the delay was not insignificant as it was over six months – there was nothing to suggest that the grievor acted with due diligence – the grievance appeared to have little chance of success, and it was difficult for the Board to assess the injustice to the grievor being greater than the prejudice to the employer when at issue was a nominal amount of leave time.
Objection allowed.
Application for an extension of time dismissed.
Grievance denied.
Decision Content
Date: 20231110
File: 566-02-44758
Citation: 2023 FPSLREB 104
Labour Relations Act
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Between
Bradley Bernatchez
Grievor
and
(Correctional Service of Canada)
Employer
Indexed as
Bernatchez v. Treasury Board (Correctional Service of Canada)
In the matter of an individual grievance referred to adjudication
Before: John G. Jaworski, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor: François Ouellette, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN
For the Employer: Daniel Trépanier and Erin Saso, Treasury Board of Canada Secretariat
Decided on the basis of written submissions,
filed June 23 and July 7 and 26, 2022.
REASONS FOR DECISION |
I. Individual grievance referred to adjudication
[1] At the relevant time, Bradley Bernatchez (“the grievor”) was employed by the Treasury Board (“the employer”) as a correctional officer with the Correctional Service of Canada (CSC), classified at the CX-01 group and level, and was working at Millhaven Institution in Kingston, Ontario, in the CSC’s Ontario Region.
[2] At the relevant time, the grievor’s terms and conditions of employment were governed in part by a collective agreement that was signed on January 5, 2021, and that expired on May 31, 2022, between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the union”) for all employees in the Correctional Services Group (“the collective agreement”).
II. Summary of the evidence
[3] On May 28, 2021, the grievor filed a grievance, which stated as follows:
…
DETAILS OF GRIEVANCE …
Requested 8.5 lieu time and 4.25 Family Leave for duration of shift on May 24, 2021.
CORRECTIVE ACTION REQUIRED …
Would like to use 8.5 lieu and 4.25 family leave for duration of shift.
And all other rights that I have under the Collective Agreement. As well as all real, moral or exemplary damages, to be applied retroactively with legal interest without prejudice to other acquired rights.
…
[4] On June 3, 2021, the grievance was denied at the first level of the grievance procedure. The response denying the grievance on that day stated as follows:
This in response to your grievance submitted on 2021/05/28 in which you are grieving managegment’s decision to deduct lieu hours of more then 8.5 hours on or about 2021/05/24. Your requested corrective action is that the employer ceases to deduct more than 8.5 hours of lieu hours (would like to use 8.5 lieu and 4.25 family leave for duration of the shift on May 24, 2021); that you be re-credited back the extra lieu hours (4.25 hours) deducted over 8.5 hours; any all other rights that I have under the Collective agreement. As well as all real, moral or exemplary damages, to be applied retroactively with legal interest without prejudice to other acquired rights.
As per the current Collective agreement – Article 34: modified hours of work –
2. Leave and lieu hours: general – When leave or lieu hours are granted, they will be granted on an hourly basis and the hours debited for each day of leave or lieu hours shall be the same as the hours the employee would normally have been scheduled to work on that day.
Lieu hours in lieu of designated paid holidays: e. On any given designated paid holiday, employees must exhaust their lieu hour credits prior to using leave with pay for family-related responsibilities or sick leave;
As this was agreed to by the union as part of your current Collective agreement your grievance and corrective action is denied.
[Sic throughout]
[Emphasis in the original]
[5] On June 4, 2021, the grievor transmitted the grievance to the second level of the grievance procedure.
[6] On August 9, 2021, the grievor transmitted the grievance to the third level of the grievance procedure.
[7] The employer did not respond to the grievance at either the second or third level within the timelines set out in the collective agreement. On May 17, 2022, the grievor referred it to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication.
[8] By email on Tuesday, May 24, 2022, at 13:18, the Board’s registry wrote to the parties, acknowledging receipt of the referral of the grievance to adjudication on May 17, 2022.
[9] On Thursday, June 23, 2022, the employer wrote to the Board, objecting to the Board’s jurisdiction to hear the grievance on the basis that its reference to adjudication was not timely. The employer’s objection is set out later in this decision in the summary of the arguments, as is the grievor’s response and the employer’s reply.
A. The collective agreement
[10] Article 20 of the collective agreement is entitled “Grievance Procedure”. The parts relevant to this objection state as follows:
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[Emphasis in the original]
[11] Clause 21.02 is a portion of the collective agreement that addresses shift work.
III. Summary of the arguments
A. For the employer
[12] The employer submits that the Board is without jurisdiction to hear the matter as the grievance was referred to it for adjudication outside the time limits prescribed by clause 20.14 of the collective agreement and s. 90(2) of the Federal Public Sector Labour Relations Regulations (SOR/2005-79; “the Regulations”).
[13] The grievor filed his grievance on May 28, 2021, and it was presented at the final level of the grievance procedure on August 9, 2021. The employer had until September 22, 2021, to issue a final-level response.
[14] Section 90(2) of the Regulations states as follows:
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[15] Since no response was issued at the final level, the grievor and the union had until November 1, 2021, to refer the grievance to adjudication. The grievance was referred to adjudication on May 17, 2022, over six months late.
[16] The employer submits that the grievance is untimely.
B. For the grievor
[17] The grievor submits that the employer did not raise its timeliness objection within the established timelines. This question has already been the subject of the Board’s jurisprudence, particularly as set out in Lafrance v. Treasury Board (Statistics Canada), 2006 PSLRB 56, Sidhu v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 76, McWilliams v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 58, and Pannu v. Treasury Board (Correctional Service of Canada), 2020 FPSLREB 4. The grievor submits that the referenced decisions are all unanimous and that they state that the employer may raise an objection with respect to timeliness only if the grievance was rejected for this reason at the first possible and all subsequent stages of the grievance procedure.
[18] The grievor also submits that under s. 95 of the Regulations, the employer is required to raise its timeliness objection within 30 days of its receipt of the reference to adjudication. The grievance was referred to adjudication on May 17, 2022, and the employer did not raise its objection within the time frames set out in s. 95.
[19] The grievor submits that the Board can exercise its discretion under s. 61 of the Regulations and extend the time for referring the grievance to the Board for adjudication. In this respect, the grievor refers me to Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1.
[20] The grievor submits that the union advisor responsible for referring grievances to the Board for adjudication stopped working and was off work due to mental health issues and personal problems effective March 18, 2022. The grievor further submits that the advisor’s health and personal issues had existed for several months before his absence from work in March of 2022.
[21] The grievor states that the situation involving the union advisor regrettably resulted in certain files not being processed within the time limits and was out of the union’s control, and as such, he should not lose his right to recourse.
[22] The grievor submits that if the Board does not reject the employer’s objection, the Board take it under reserve and deal with it at the same time as it addresses the grievance on its merits, to allow him and the union to provide more exhaustive evidence on the issue.
C. The employer’s reply
[23] In response to the union’s submission that the employer did not raise its timeliness objection within the established timelines, the employer submits that it was within the timelines set out in s. 95(1) of the Regulations, which state that a party has 30 days to raise an objection based on timeliness after being provided a copy of the notice of the reference to adjudication. The employer received notice from the Board of the referral to adjudication on May 24, 2022, and provided its objection on June 23, 2022, the 30th day, which was within the allowable timeline.
[24] With respect to the union’s submission on the extension of time, the employer submits that Schenkman provides the basic criteria for determining whether discretion should be exercised and an extension of time granted. The criteria are as follows:
· 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.
[25] The union submits that the untimely referral of the grievance was due to circumstances beyond its control, namely, the mental health and personal issues of a union advisor who was responsible for the file. It states that the advisor had had these issues for several months before March 18, 2022.
[26] The employer cannot confirm or dispute the claim with respect to the union advisor’s personal circumstances; however, it submits that the advisor in question had referred other files to adjudication before and during the time frame in question. The employer then sets out six specific board file numbers and states that the grievances relating to them were referred to the Board for adjudication by the advisor in question in September and December of 2021 as well as in March of 2022.
[27] In addition, the employer submits that the advisor’s administrative support also completed referrals to the Board for adjudication on their behalf and set out two specific board file numbers stating that the grievances relating to those matters were referred to the Board for adjudication by the advisor’s administrative assistant in January of 2022.
[28] For these reasons, the employer submits that the union’s explanation does not establish a clear, cogent, and compelling reason for the delay. There is clear evidence that the union advisor in question was able to perform the same task on other occasions during the relevant period.
[29] Given that the union advisor in question as well as the administrative assistant successfully referred other grievances to adjudication during the relevant time, the employer concludes that the reason for the delay was administrative oversight. In this respect, the employer refers me to paragraph 27 of Copp v. Treasury Board (Department of Foreign Affairs and International Trade), 2013 PSLRB 33, which states as follows:
[30] In terms of balancing the injustice to the employee against the prejudice to the employer in granting an extension, the onus to establish the injustice, if any, is the grievor’s to bear. The dispute in question is related to the administration of leave and is limited to a minute 4.25-hour period. While the grievor and union may dispute the significance of the matter, the employer submits that were the matter of utmost importance to the grievor, a more diligent effort to ensure a timely referral, such as an inquiry as to the grievance’s status, would have been made.
[31] As for the grievance’s chance of success at adjudication, the employer submits that the grievance has little chance of success, given its subject matter. It states that the subject matter of the grievance is that the grievor disputes its decision to deduct 12.25 hours of lieu time for his shift on Victoria Day as opposed to 8.5 hours of lieu time and 4.25 hours of family responsibility leave. The collective agreement clearly and unequivocally states, “On any given designated paid holiday, employees must exhaust their lieu hour credits prior to using leave with pay for family-related responsibilities or sick leave …”.
[32] The employer reiterates its request that the grievance be dismissed as it is untimely and further submits that the application for an extension of time be dismissed.
IV. Reasons
A. The timeliness of the reference of the grievance to adjudication
[33] The grievance procedure in the federal public service is governed by the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”), the Regulations, and any group-specific collective agreement that may be entered into between an authorized bargaining agent and the employer with respect to employees in a particular bargaining unit.
[34] The parties agreed at article 20 of the collective agreement to certain terms and conditions governing the grievance procedure. As set out in that agreement, there are three levels in the procedure. If a grievor is unsatisfied with the employer’s response at the final level, he or she may refer the grievance to adjudication (if it is a grievance that the Board would otherwise have jurisdiction over).
[35] Once a grievance has been filed at the first level, the employer must reply to it within 10 days, the calculating of which does not include Saturdays, Sundays, or holidays (clause 20.16 of the collective agreement). If the employer has not replied to the grievance at any particular level, except the final level, within 15 days of the date on which the grievance was received at that level, the grievor may transmit it to the next level within 10 days of that date. Clause 20.17 provides that by agreement, the parties may extend the time frames for taking the steps in article 20.
[36] Section 63 of the Regulations is found under the heading “Grievances”, the subheading “General Provisions”, and the marginal note “Rejection for failure to meet a deadline” and states as follows:
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[Emphasis in the original]
[37] Section 90 of the Regulations sets out the procedure for referring a grievance to the Board for adjudication and states as follows:
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[Emphasis in the original]
[38] Section 10 of the Regulations states that if a time limit under the Regulations for filing a document expires on a Saturday or holiday, it may be filed on the day next following that is not a Saturday or a holiday.
[39] “Holiday” is not defined in the Regulations or the Act. It is defined in s. 35 of the Interpretation Act (R.S.C., 1985, c. I-21) and includes Sunday.
[40] There is no suggestion from the employer that the original grievance was filed out of time or that the grievor did not transmit the grievance to the levels of the grievance procedure in a timely manner. The employer’s objection lies solely with the grievor’s failure to refer the grievance to adjudication within the timeline set out in the Regulations.
[41] The grievor transmitted the grievance to the final level in the grievance procedure on August 9, 2021. Based on the time limits set out in clause 20.14 of the collective agreement, the employer had 30 days to reply, not counting Saturdays, Sundays, and holidays (as provided for by clause 20.02). Therefore, the final day for the employer to reply would have been Tuesday, September 21, 2021.
[42] The collective agreement is silent on the time frame within which a grievance may be referred to adjudication when no response is delivered by the employer. However, clause 20.23 of the collective agreement states that where an employee has presented a grievance up to and including the final level in the grievance procedure and the employee’s grievance has not been dealt with to his or her satisfaction, he or she may refer the grievance to adjudication in accordance with the provisions of the Act and Regulations. By default, under s. 90(2) of the Regulations, the grievor had 40 days after the date on which the employer was required to deliver its response. Forty days from September 21, 2021, would have been October 31, 2021. As October 31, 2021, was a Sunday, the time extends to the first day after that that is not a holiday; in this case, it is Monday, November 1, 2021, based on s. 10 of the Regulations, that provides that a time limit under the Regulations is calculated by taking into account all calendar days, as there is no equivalent to clause 20.02 of the collective agreement that excludes Saturdays, Sundays and holidays.
[43] The grievor transmitted his grievance to the Board on May 17, 2022. This was more than 6 months past the deadline. Therefore, it is untimely. However, it is untimely only if the employer objects to the timeliness of the reference to adjudication within 30 days of the date it received notice of the reference to adjudication. This is set out in s. 95(1)(b) of the Regulations, which states as follows:
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[44] The employer received an email from the Board’s registry on May 24, 2022, advising it of the reference to adjudication of the grievance. Therefore, the employer had to raise its objection within 30 days of that day. It delivered its objection to the Board by email on June 23, 2022, which was the 30th day after May 24, 2022, and therefore the last day on which it could have raised its objection under s. 95(1)(b) of the Regulations.
[45] As only the grievor’s referral to adjudication was not timely, the only possible timeliness objection that the employer could have raised was about the referral, and as such, the employer did so and is not in breach of the Regulations. Therefore, I find that the grievance is untimely.
B. Request for an extension of time
[46] The grievor submitted that the Board can exercise its discretion under s. 61 of the Regulations and extend the time for referring the grievance to the Board for adjudication. In this respect, he referred me to Schenkman. The test for extending time under s. 61 of the Regulations has been well established by the criteria in Schenkman, which are as follows:
· 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.
[47] The grievor submitted that the reason for the delay was that the union advisor responsible for referring grievances to the Board for adjudication in Ontario stopped working and was off work due to mental health issues and personal problems as of March 18, 2022. He further submitted that the advisor’s health and personal issues had existed for several months before his departure from work in March of 2022. The grievor also stated that the situation involving the union advisor resulted in certain files not being processed within the time limits and that this was out of the union’s control.
[48] In its reply, the employer submitted that in fact, the union referred several files to the Board for adjudication both before and after this grievance should have been referred to adjudication and during the months preceding the departure of the union advisor in question. I have had the opportunity to review those Board files and to verify that indeed, they were referred to adjudication either by the union advisor in question or by the Ontario office that he was responsible for.
[49] The reason for the delay is not clear, cogent, or compelling. Even accepting that the union advisor responsible for referring the grievance to adjudication was suffering from some ill health and personal issues at some point in time before the actual referral to adjudication, this is still very limited and lacks sufficient detail to satisfy the test of clear, cogent, and compelling.
[50] The grievor stated that the union advisor left on sick leave on March 18, 2022, and that he had been ill or having personal issues for some months before leaving. However, the time frame to refer the grievance to the Board, which was between September 22 and November 1, 2021, was four to six months before the advisor departed his position. Was the union advisor unfit to carry out the functions of his position in September and October of 2021? It also does not explain why during this same time frame, other grievances were referred to the Board, and the grievor’s was not. Finally, again accepting that the union advisor left on March 18, 2022, it was another two full months before the grievance, already out of time to be referred to the Board, was finally referred, on May 17, 2022; for this, there was no explanation.
[51] The delay is not insignificant. It is not a day, a few days, a week, or a few weeks. It is over six months.
[52] There is nothing to suggest that the grievor acted with any due diligence.
[53] The last two of the Schenkman criteria are balancing the injustice to the grievor against the prejudice to the employer and the chance of success of the grievance. These two go somewhat hand in hand. It is difficult to assess the injustice to the grievor as the issue is whether the employer could deny him the use of the 4.25 hours of paid family responsibility leave with in-lieu hours, and there is a specific clause in the collective agreement that states that this is in fact what the union and employer agreed to.
[54] The facts of this case appear to be exactly what is contemplated in clause 34(e) of the collective agreement. The grievance states that the grievor wanted to use 8.5 hours of lieu time and 4.25 hours of family responsibility leave to cover his shift on May 24, 2021. Article 34 deals with the use of lieu hours in lieu of designated paid holidays. It sets out that the employees governed by the collective agreement receive credit for all paid holidays at the start of the fiscal year in the sum of 93.5 hours for the year and that those lieu hours are to be used on the designated paid holiday. Clause 34(e) specifically states that on any given designated paid holiday, employees must exhaust their lieu-hour credits before using leave with pay for family related responsibilities or sick leave.
[55] The test in the Schenkman criteria does not require the Board to make a finding on the merits of the grievance; it is sufficient for the Board to assess on the information available, if it is available, the likelihood of success. At this point, based on the information provided, the grievance appears to have little chance of success, given that the allegations appear to be specifically contemplated in the collective agreement and that the employer appears to have followed the collective agreement.
[56] In addition, it is difficult to assess the injustice to the grievor being greater than the prejudice to the employer when at issue is such a nominal amount of leave time; both types of leave are paid leave, and the grievor received paid leave for the entire time requested.
[57] Finally, in his submission, the grievor suggested that if the Board does not reject the employer’s objection, the Board take it under reserve and deal with it at the same time as it addresses the grievance on its merits, to allow the grievor and union to provide more exhaustive evidence.
[58] Both the union and employer are seasoned parties in terms of appearing before the Board. It is incumbent on them, when either one raises an objection to jurisdiction, to put their best foot forward and advance all the arguments they have based on all the facts that are known to them. The Board is not required to put off to a hearing an issue that should have been dealt with by a party in submissions.
[59] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V. Order
[60] The objection is allowed.
[61] The application for an extension of time is dismissed.
[62] The grievance in Board file no. 566-02-44758 is denied.
November 10, 2023.
John G. Jaworski,
a panel of the Federal Public Sector
Labour Relations and Employment Board