Applying for an Extension of Time to Present a Grievance or Refer a Grievance to Adjudication
The Federal Public Sector Labour Relations Act (FPSLRA) (section 225) states that a grievance may not be referred to adjudication until it has been presented at all the required levels in accordance with the applicable grievance process.
Section 61 of the Federal Public Sector Labour Relations Regulations (the Regulations) provides that the time limits for presenting a grievance at any level of the grievance process may be extended, either before or after the expiry of the times set out in Part 2 of the FPSLRA or in a grievance procedure contained in a collective agreement. This may be done by agreement between the parties or by the Board or an adjudicator, as the case may be, in the interest of fairness, on the application of a party. This also applies to time limits for referring a grievance to adjudication and for providing or filing a notice, reply or document.
In cases where there appears to be an issue about whether a grievance has been properly presented at all the required levels under a grievance process, the Chairperson may decline to refer the grievance to an adjudicator until that issue is addressed (see subsection 223(2) and section 225 of the FPSLRA).
Moreover, if the responding party files an objection stating that either the presentation of the grievance at a required level of the grievance process or its reference to adjudication was not timely, that objection should be addressed before the grievance is heard on its merits. Should the applying party believe that an objection to timeliness might be raised, an extension of time could be sought
Under the Regulations (paragraph 61(b)), the Board or an adjudicator, as the case may be, may, in the interest of fairness, extend the time to present a grievance at a level of the grievance process or to refer a grievance to adjudication. According to Board jurisprudence, confirmed by Vidlak v. Canada (Attorney General), 2007 FC 1182, five criteria must be assessed in order to determine when it is fair to exercise this discretion and extend a time limit:
- clear, cogent and compelling reasons for the delay;
- the length of the delay;
- the due diligence of the applicant;
- balancing the injustice to the applicant, in denying an extension, against the prejudice to the respondent in granting an extension; and,
- the chance of success of the grievance.