Date: 20250724

File: 566-02-49591

 

Citation: 2025 FPSLREB 88

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

 

Todd Tyndall

Grievor

 

and

 

TREASURY BOARD

(Royal Canadian Mounted Police)

 

Employer

Indexed as

Tyndall v. Treasury Board (Royal Canadian Mounted Police)

In the matter of an individual grievance referred to adjudication

Before: Joanne Archibald, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Malini Vijaykumar

For the Employer: John Mendonca

Decided on the basis of written submissions,
filed December 5 and 17, 2024, and January 2, 2025.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

[1] On September 19, 2023, Todd Tyndall (“the grievor”) filed a grievance alleging that the Treasury Board (“the employer”) violated and continued to violate the relevant collective agreement by failing to properly accommodate him, contravening its occupational health and safety responsibilities, and exercising its management authority improperly.

[2] On April 22, 2024, the National Police Federation (“NPF”) referred this grievance to the Federal Public Sector Labour Relations and Employment Board (“the Board”) under the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) regarding the interpretation or application in respect of the collective agreement, specifically with respect to the duty to accommodate.

[3] The employer employed the grievor as a constable with the Royal Canadian Mounted Police (“RCMP”). On August 6, 2021, the NPF and the employer signed their first collective agreement, for RCMP Regular Members (below the rank of inspector) and Reservists (the RM group) (“the collective agreement”). It governed, in part, the terms and conditions of the grievor’s employment. Section 238.25 of the Act provides for an RCMP member to refer an individual grievance to the Board. It provides that:

 

[4] On May 15, 2024, the employer advised the Board of its intention to object to it’s jurisdiction over the matter on the basis that the grievance was filed beyond the 35-day time frame prescribed by the collective agreement. On December 5, 2024, it formalized the objection.

[5] Section 22 of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) permits the Board to “... decide any matter before it without holding an oral hearing.” I have determined that the information before me sufficiently addresses the matters at issue, and I have decided this case on the basis of the parties’ written submissions.

[6] For the reasons that follow, the grievance is denied on the basis that it is untimely and that the Board has no jurisdiction over it.

II. Background

[7] The employer provided the following chronology of events, which the grievor did not dispute. It affords relevant background to the matter before the Board:

• In January 2018, while working in Saskatoon, Saskatchewan, the grievor made a workplace violence and harassment complaint. In June 2019, the RCMP’s conduct authority determined the complaint founded.

 

• In April 2018, the RCMP transferred the grievor to its Yorkton, Saskatchewan, detachment. On May 3, 2018, he began working there.

 

• The grievor was absent from the workplace on medical leave from May 29, 2018, through December 29, 2019. He returned to the workplace on a gradual return to work (“GRTW”) schedule that restricted him to administrative duties, with reduced hours and days of work.

 

• In February 2020, an investigation under the Canada Labour Code (R.S.C., 1985, c. L-2) determined the complaint founded.

 

• From September 2 to December 20, 2020, the grievor was absent from the workplace on medical leave.

 

• On December 21, 2020, he returned to work on a GRTW schedule that again restricted him to administrative duties and reduced hours and days of work.

 

• On June 16, 2021, the RCMP’s health services officer updated the grievor’s medical profile to “permanent 04”, which meant that he was permanently restricted to performing administrative duties.

 

• On August 6, 2021, the collective agreement came into force.

 

• On August 13, 2021, the grievor made a harassment complaint under the Work Place Harassment and Violence Prevention Regulations (SOR/2020-130) of the Canada Labour Code, alleging his sergeant’s ongoing failure to provide a safe workplace. On June 8, 2023, an investigation into the complaint concluded and determined that the allegations did not meet the definition of “harassment”.

 

• From April 7 to July 14, 2022. The grievor was on medical leave.

 

• On July 15, 2022, the grievor returned to the workplace and performed administrative duties, in accordance with his medical profile.

 

• In December 2022, the grievor went on medical leave, which he remained on until his administrative discharge from the RCMP.

 

• In January 2023, the grievor’s medical profile was updated to “permanent 06”, which meant that he was not fit for any duties in the RCMP for the foreseeable future and that he could not be accommodated in the workplace.

 

• On June 30, 2023, the RCMP served the grievor with a notice of its intent to discharge him from his employment. He requested and received an extension to September 1, 2023, to respond to the notice.

 

• On September 19, 2023, the grievor initiated this grievance.

 

• On January 12, 2024, the RCMP informed the grievor of his administrative discharge on the basis that he had a disability that could not be accommodated, short of undue hardship.

 

• On January 19, 2024, the employer terminated the grievor’s employment. He filed an appeal of that decision under the provisions of the Royal Canadian Mounted Police Act (R.S.C. 1985, c. R-10; “the RCMP Act”).

 

• On April 26, 2024, the grievor filed a Board Form 24, alleging discrimination on the ground of disability related to this grievance.

 

III. Summary of the arguments

A. For the employer

1. Timeliness

[8] The employer relied on clause 15.16 of the collective agreement to support its argument that the grievance was untimely. Clause 15.16 provides as follows:

15.16 A grievor may present a grievance to the first level of the procedure in the manner prescribed in clause 15.08, not later than the thirty-fifth (35th) calendar day after the date on which the grievor is notified or on which the grievor first becomes aware of the action or circumstances giving rise to the grievance....

 

[9] For the grievance to be timely, the event or circumstance that gave rise to it had to have occurred during the 35-day period between August 14 and September 19, 2023.

[10] The grievor did not identify the date on which he became aware of the actions or circumstances that gave rise to the grievance, as he was absent from the workplace during that 35-day period as part of a longer period of medical leave.

[11] The RCMP denied the grievance at all levels of the grievance process and held that it was untimely, as the grievor did not make it within the 35 days set out in clause 15.16 of the collective agreement.

2. Extending the time to file the grievance

[12] The employer considered the criteria in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, which allow the Board to extend the time for a grievor to file a grievance.

[13] The Schenkman criteria, drawn from paragraph 75 of the decision, follow:

[75] ...

· 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.

 

[14] The employer provided the arguments that follow to support its position that granting an extension of time to file the grievance is not warranted.

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

[15] The grievor offered no clear, cogent, or compelling reason to justify the delay filing the grievance.

[16] Allegations of accommodation and harassment issues predating the collective agreement’s implementation are not grievable.

[17] The grievor was on medical leave from December 2022 until his discharge in January 2024. He was not in the workplace when he filed the grievance.

b. Length of the delay

[18] The collective agreement provided 35 days to file the grievance after the date on which the grievor was notified or first became aware of the action or circumstances that gave rise to it.

[19] No events took place during the 35-day period. The employer suggested that an event might have occurred in January 2023, when the grievor received its notice that he would be unable to return to any employment duties for the foreseeable future. That was 8 months before he filed the grievance.

[20] It is also possible that the grievor relied on events set out in the workplace violence and harassment complaint that he made in 2018. If so, they predated the collective agreement. According to clause 69.02, it came into force on the day it was signed, which was August 6, 2021. Therefore, it provided no recourse for events from 2018.

c. The grievor’s due diligence

[21] The grievor filed the grievance only after he unsuccessfully pursued other avenues of redress. The onus rested with him to establish on the balance of probabilities that he exercised due diligence, to account for the delay.

[22] According to the employer, the grievor inquired about the applicable time limit for a potential grievance before filing this one in September 2023.

d. Balancing the injustice to the grievor against the prejudice to the employer

[23] The employer noted that it could accommodate the grievor only once there was medical information to support his ability to return to work.

[24] It argued that it is entitled to expect that an issue has ended once the prescribed time limits elapse. Moreover, the date of the event underpinning the grievance remains unclear.

[25] As such, it perceived no injustice in a finding that the grievance is untimely.

e. The grievance’s chance of success

[26] The collective agreement came into force on August 6, 2021. Any alleged actions that took place before that date cannot be considered collective agreement breaches.

[27] As for events that occurred after August 6, 2021, the employer disputed whether they related to the collective agreement. Even if they did, the grievor had access to grievance and appeal redress processes under the RCMP Act. Indeed, he exercised those avenues of redress in other matters, including travel expenses for medical appointments and his administrative discharge from employment.

[28] The employer argued that s. 208(2) of the Act provides that when an employee has access to redress under another Act of Parliament, other than the Canadian Human Rights Act (R.S.C., 1985, c. H-6), the Board has no jurisdiction to hear the matter.

[29] Accordingly, although it might appear that s. 238.24 of the Act gives the grievor the right to refer a grievance related to interpreting the collective agreement to the Board, s. 208(2) expressly excludes this reference to adjudication from the Board’s jurisdiction because of the available redress under the RCMP Act.

B. For the grievor

1. Timeliness

[30] According to the grievor, the grievance was timely. It responded to a continuing collective agreement breach; therefore, the Board has jurisdiction to continue to a full hearing of it.

[31] Clause 19.03 of the collective agreement provides as follows:

19.03 The Employer shall continue to make all reasonable provisions for the occupational safety and health of Members of the bargaining unit. The Employer will welcome suggestions on the subject from the NPF and the parties undertake to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury or occupational illness.

 

[32] The grievor argued that the employer breached the collective agreement every day it failed to provide him with a safe and non-discriminatory workplace to report to. Given that the breach was continuing, the grievance was timely.

[33] The grievor relied on the decision in Galarneau v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 1, which addressed a continuing violation and the timeliness of the ensuing grievances.

[34] He argued that as in Galarneau, this grievance addresses a repeated breach of a recurring duty, rather than an isolated act. Even though the grievor was on medical leave and not in the workplace, the employer’s obligation to accommodate him by providing a safe workplace continued during that leave period.

2. Extending the time to file the grievance

[35] If the Board determines that the grievance was untimely, then the grievor requested an extension of time based on the Schenkman criteria. His argument follows.

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

[36] The grievor was on medical leave from December 2022 onward. In November 2022, the independent medical evaluator noted that he suffered from trauma and stressor-related disorders. According to the grievor, the employer’s continuing refusal to provide a psychologically safe workplace, free of harassment and retaliation from his supervisors, meant that his condition did not improve.

[37] The grievor stated that earlier, he did not have the mental wherewithal to fully consider his redress options. He was occupied with ongoing psychological treatment and the need to contest his discharge, which constituted the reason for the delay.

b. Length of the delay

[38] The delay was not unreasonable. It was eight months, compared to the nine months in Fortier v. Department of National Defence, 2021 FPSLREB 41.

c. The grievor’s due diligence

[39] Concurrently, the grievor contended with many processes, including his September 1, 2023, response to the employer’s notice that it intended to discharge him from the RCMP. He filed this grievance less than three weeks later.

d. Balancing the injustice to the grievor against the prejudice to the employer

[40] The passage of time was not unreasonable. No evidence was lost, and no crucial witness became unavailable. The grievor maintained that the grievance represents his opportunity to seek redress for serious issues of occupational safety, discrimination, and abuse of managerial authority.

e. The grievance’s chance of success

[41] There is more than an arguable case. The grievor states that a founded harassment complaint caused his injuries. The RCMP failed to accommodate those injuries by forcing him to work in an unsafe environment.

C. The employer’s reply submission

[42] The employer noted that the grievor’s submission did not identify the date of the circumstance that gave rise to the grievance and reiterated its position that the grievance appears to be based on events predating the collective agreement.

[43] It disputed the notion of a continuing collective agreement breach. The Galarneau decision dealt with the grievors’ exposure to second-hand smoke in the workplace. The former Board found those grievances timely and held that the employer had a continuing obligation for the occupational safety and health of those employees. That constituted a continuing obligation to the grievors whenever they were called on to work. On that basis, the grievances were considered timely.

[44] This grievance differs on the facts. In 2018, the employer transferred the grievor from the workplace where the harassment occurred. He was present in the new workplace on a limited basis from 2018 onward. After he was moved, the employer granted him periods of paid sick leave and attempted to gradually return him to the workplace. It accommodated him by moving him to administrative duties. It argued that there was no continuing collective agreement breach and that it did not continue to expose him to an unsafe workplace.

IV. Analysis

[45] The issue before me is whether this grievance was filed within the prescribed period and, if not, whether the facts warrant extending that time.

1. Timeliness

[46] The collective agreement provides a 35-day time limit to file a grievance. In practical terms, in this case, this allowed for filing a grievance that alleged that an event or act occurred between August 15 and September 19, 2023, which violated the collective agreement.

[47] The information before me sets out that the grievor was absent from the workplace on medical leave throughout that period. He remained on leave from December 22, 2022, onward, until his discharge date in 2024.

[48] The grievor filed the grievance on September 19, 2023. He alleged a continuing collective agreement violation, as the employer failed to properly accommodate him in the workplace and to provide him with a safe workplace throughout his employment.

[49] To support his argument, he relied on the Galarneau decision, which addressed the timeliness of grievances about second-hand smoke in the workplace. The employer objected to the grievances’ timeliness and argued that the grievors were aware of the event or circumstances before the prescribed time limit of 25 days in that case to file their grievances.

[50] I do not find that Galarneau assists the grievor. Galarneau cannot be divorced from its factual context. The grievors in that case attended a workplace that exposed them to second-hand smoke on an ongoing basis. The Board found the grievances timely and identified the employer’s obligation as “... a continuing obligation that is repeated each time the employees are called on to render services” (at paragraph 21).

[51] The grievance before me is distinguishable. In Galarneau, the grievors continued to report for work. Their grievances arose from their workplace experiences. In this case, the grievor was not present in the workplace during the prescribed 35-day period due to medical leave that commenced in December 2022. It would be speculative to suggest that if he could have returned, then the workplace would have been unsafe or unhealthy.

[52] Article 19.03 of the collective agreement provides as follows: “The Employer shall continue to make all reasonable provisions for the occupational safety and health of Members in the bargaining unit.” The grievor argues that the employer’s failure to make those provisions or reasonably accommodate him constitutes a recurring breach. However, expanding the employer’s duty to provide those measures during a period when the grievor was medically unfit to return to the workplace would not be a tenable conclusion.

[53] I conclude that there was no continuous breach of the collective agreement.

2. Extending the time to file the grievance

[54] As I find the grievance untimely, the question, then, is whether the time to file it can be extended. This leads me to consider the Schenkman criteria.

[55] In Slivinski v. Treasury Board (Statistics Canada), 2021 FPSLREB 35, the Board considered the Schenkman criteria and made the following determination:

...

[230] The parties to collective agreements in the federal public sector are, on the employer’s side, the federal government in the form of the TB [Treasury Board] or any number of separate agencies, and on the employees’ side, any number of national professional bargaining agents. They are sophisticated organizations that employ both professional negotiators and lawyers who act for them in the labour relations regime. They negotiate the collective agreements that set out the terms and conditions of employment. In doing so, it cannot be said that they are not fully cognizant of not only the rules but also the risks inherent to presenting and processing grievances.

[231] As set out in Grouchy, granting extensions of time should be the exception and not the rule. At a bare minimum, when a grievance has not been presented within the time limits set in the collective agreement and agreed to by the parties, it is imperative that the grievor and bargaining agent act diligently and with due haste to seek an extension of time and in doing so provide an explanation for the delay.

[232] The fourth and fifth criteria of Schenkman should be taken into account only if the grievor acted diligently, applied to extend the time as soon as possible after becoming aware of the missed deadline, and provided a clear and cogent explanation for missing it. Doing otherwise would render meaningless the deadlines in the collective agreement that the parties freely negotiated and agreed to.

...

 

[56] As stated, extensions of time should be the exception and not the rule. For the reasons that follow, I do not find that this is an exceptional case that warrants extending the time to file the grievance.

[57] First, I note that to the extent that the grievance relies on events that predate the collective agreement, it does not lie within the Board’s jurisdiction to provide a remedy. It is clear from s. 238.25 of the Act that the Board’s authority extends to disputes that involve interpreting and applying collective agreements. Accordingly, events that occurred before August 6, 2021, the date on which the employer and the NPF entered their first collective agreement, would lie outside that purview.

[58] If the grievance is about events in the grievor’s workplace, then the final date on which he could have experienced an occurrence would fall in December 2022, or fully nine months before he filed the grievance.

[59] The grievor argued that Fortier supports an extension of eight months to file his grievance and that it should be considered.

[60] I find the facts in Fortier distinguishable. It addressed the delayed reference of a grievance to adjudication during the COVID-19 pandemic. As the Board noted at paragraph 31, the facts of the case were “rather particular” and unfolded in the context of the well-known events of that time. Some of them were office closures and telework, the bargaining agent’s agreement to an extension for the employer’s response to the grievance at the third level of the grievance process, and the manner and timing of communicating the response to the bargaining agent.

[61] Fortier does not stand for a general proposition that eight months is not too long to delay filing a grievance. It should be confined to its facts, some of which I have included in the last paragraph. There are no comparable features in this case.

[62] The grievor submitted that he did not file the grievance earlier than September 19, 2023, as he was occupied with ongoing psychological treatments and the need to contest his discharge from the RCMP.

[63] It is undisputed that in January 2023, the RCMP notified the grievor that his medical profile was changed to permanent 06, which meant that he was not fit for any duties at the RCMP for the foreseeable future and that he could not be accommodated. That is the impugned decision from which the grievance arose.

[64] I have been provided with no information that would lead me to conclude that the grievor could not understand his option to grieve the employer’s decision on his accommodation. He might have overlooked it, but I am not persuaded that he lacked the capacity to understand that it was an available option.

[65] As for the discharge process, on June 30, 2023, the grievor received the employer’s notice that it intended to discharge him from the RCMP. He requested and received an extension of time to respond. He responded on September 1, 2023. On September 19, 2023, he filed this grievance.

[66] I accept that preparing the response could bear on the period of June 30 to September 1, 2023. However, it provides no reason to excuse the preceding delay from January through June 2023 nor has the grievor explained this delay. By the time he received the notification that the employer intended to discharge him, his grievance period had elapsed and he was well out of time.

[67] In examining the information before me, I am not satisfied that the grievor demonstrated diligence or provided an excuse for the delay that would allow me to extend the time to file the grievance.

[68] Accordingly, I find that the first three Schenkman criteria are not met. The collective agreement provides 35 days to file a grievance, and the bargaining parties intended it to be given meaning and effect. In this case, I find that the grievor did not demonstrate clear, cogent, and compelling reasons for the delay or its length, and I find an insufficient indication of diligence to allow me to extend the time to file the grievance.

[69] As such, adopting the reasoning in Slivinski, and given the weight I assign to the first three Schenkman criteria, I find it unnecessary to consider the remaining two criteria. The grievance is untimely, and the Board has no jurisdiction to proceed to a hearing.

[70] Before concluding, I note that s. 238.24 of the Act specifically addresses the limits of the Board’s jurisdiction over grievances from RCMP members. It provides as follows:

238.24 Subject to subsections 208(2) to (7), an employee who is an RCMP member is entitled to present an individual grievance only if they feel aggrieved by the interpretation or application, in respect of the employee, of a provision of a collective agreement or arbitral award.

238.24 Sous réserve des paragraphes 208(2) à (7), le fonctionnaire membre de la GRC a le droit de présenter un grief individuel seulement lorsqu’il s’estime lésé par l’interprétation ou l’application à son égard de toute disposition d’une convention collective ou d’une décision arbitrale.

 

[71] Section 208(2) of the Act provides as follows:

208(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

208(2) Le fonctionnaire ne peut présenter de grief individuel si un recours administratif de réparation lui est ouvert sous le régime d’une autre loi fédérale, à l’exception de la Loi canadienne sur les droits de la personne.

 

[72] First, the employer argued that the grievance concerns a matter that does not relate to a collective agreement provision, or, if it does, the grievor had grievance and appeal redress available under the RCMP Act. I have not been provided with support for the employer’s position. It is clear that the grievance is related to the collective agreement provisions. The employer has not demonstrated that redress was afforded under the RCMP Act.

[73] Second, the grievor’s representative asked the Board to consider an oral hearing if it was not convinced that the grievance was timely. Pursuant to s. 22 of the Federal Public Sector Labour Relations and Employment Board Act, the Board may decide any matter before it without holding an oral hearing. In the circumstances of this case, I have concluded that an oral hearing is unnecessary. The grievor received an opportunity to respond to the employer’s application with a written submission and did so. I have considered the parties’ submissions and have determined that they furnish a sufficient foundation to allow the question raised in the employer’s application to be addressed by the Board.

[74] Since the parties were afforded the opportunity to address the matter at issue, the Board has no obligation to convene an oral hearing, to receive more submissions.

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

(The Order appears on the next page)

V. Order

[76] The employer’s objection to the timeliness of the grievance is upheld.

[77] The grievance is denied, as the Board has no jurisdiction to consider it further.

July 24, 2025.

Joanne Archibald,

a panel of the Federal Public Sector

Labour Relations and Employment Board