FPSLREB Decisions

Unfair labour practice - Complaint under paragraph 23(1)(a) of the Public Service Staff Relations Act (PSSRA) alleging a violation of subsection 10(2) thereof - Duty of fair representation - Correctional Officer - Laches - the complainant's employment was terminated for sexually harassing a co-worker - at adjudication, his grievance against the termination of his employment was denied: (166-2-27956), (1998) 34 PSSRB Summaries 16 - his bargaining agent, the Public Service Alliance of Canada (PSAC), represented him during the grievance process but refused to represent him on judicial review of the adjudicator's decision, relying on a legal opinion which indicated that there was little chance of success - the complainant retained counsel and referred the adjudicator's decision to judicial review - the application for judicial review was dismissed by the Federal Court, Trial Division, on the ground that the adjudicator's decision was not patently unreasonable: Teeluck v. Canada (Treasury Board) (1999), 177 F.T.R. 39 - the complainant then submitted his complaint to the Board against the PSAC alleging that it had breached the duty of fair representation which it owed to him in relation to his grievance against the termination of his employment - the complainant's appeal of the decision of the Federal Court, Trial Division, was dismissed: Teeluck v. Canada (Treasury Board) (2000), 262 N.R. 389 - at the hearing before the Board, the PSAC submitted a preliminary objection on the principle of laches by reason of the fact that the complaint was filed well after the issuance of the adjudicator's decision - the Board dismissed the preliminary objection, pointing out that there is no time limit specified in the PSSRA for filing a complaint - the Board indicated that the principle of undue delay is akin to the equitable doctrine of laches and arbitrators may decline to deal with a dispute on the basis of undue delay as a matter of discretion after considering the effects of and any explanation for the delay - however, mere delay alone will not suffice to bar further proceedings, as a critical factor will be prejudice to the party objecting such that the delay will have caused an inability to deal with the dispute in a fair manner - the PSAC had not indicated that the complainant's delay in filing the complaint would hinder in any way its presentation of a full and complete answer to the complaint - the Board concluded on the evidence that the PSAC had represented the complainant fairly, both during the grievance process and at adjudication - the PSAC's decision not to represent the complainant on judicial review was taken on the basis of a legal opinion, a copy of which was provided to the complainant. Complaint dismissed. Cases cited: Teeluck v. Canada (Treasury Board) (1999), 177 F.T.R. 35; Teeluck v. Canada (Treasury Board) (2000), 262 N.R. 389 (F.C.A.); Re Hôpital du Sacré Coeur de Montréal and Syndicat des employés de l'Hôpital du Sacré Coeur de Montréal (1997), 63 L.A.C. (4th) 415; Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509; Jacques v. Public Service Alliance of Canada (161-2-731).