FPSLREB Decisions

[1]   Pierre Archambault has complained of a violation of subsection 10(2) of the Public Service Staff Relations Act (PSSRA) by the Union of Taxation Employees (UTE) – Public Service Alliance of Canada (PSAC) and by his representatives: Betty Bannon, Michelle Tranchemontagne, Sabri Khayat and Denis Brunette.

[2]   Mr. Archambault has alleged that the UTE–PSAC acted in a manner that was arbitrary and in bad faith toward him in the representation of his grievances concerning the termination of his employment with the Canada Customs and Revenue Agency (CCRA). Mr. Archambault has emphasized that his representatives did not respect the time limits for the grievance procedure set out in the PSSRA and the collective agreement, and did not represent him in a competent manner.

[3]   Mr. Archambault's complaint, filed on March 15, 2002, is reproduced below:

[Translation]

[...]

Part 3 and Part 4: Statement of actions

During the processing of grievances No. 01-1247-461-18773, No. 1247-461-19682 and No. 1247-461-19683, the union acted in bad faith.

In May 2001, when I called Betty Bannon to tell her that Denis Brunette had not forwarded my dismissal grievance to the third level, she promised she would call me back the same day I spoke to her, the Monday. She never returned my call and never replied in writing.

On January 30, 2002, Michèle Tranchemontagne asked for an appointment in order to reply to my questions about my dismissal grievance. She hung up on me. I asked her for the directive on penalties and interest on arbitrary assessments. She was not familiar with the directives relating to penalties and interest on arbitrary assessments. She said she knew more than I did about the Canada Customs and Revenue Agency (CCRA) directives on collection.

Further to the December 2001 e-mail message, she refused to tell me the union status of Antoine Bourdeau, my manager, over the past 20 years. She refused to tell me the reasons for the change of position of Suzanne Blais, who was no longer manager. Following my April 2000 statement, Ms. Blais had compiled a dismissal file. At that time I had replied to her that I had a bachelor's degree in accounting and should have no problems with the corporate accounts. I had told her that the only problem might be the computer system, because I was not familiar with the GST system. Ms. Blais did not reply; she felt like she had been scorned because she does not have a university degree. She went back to her office without replying to me.

During a telephone conversation in January 2002, Ms. Tranchemontagne stated that my file was very thick, but she never asked me any questions about the incidents and facts related to the grievances. She was not interested in defending me.

On a number of occasions Ms. Tranchemontagne ended my telephone conversations by saying that someone was waiting for her. She refused to give me my former co-workers' contact information. She refused to meet with my former co-workers to discuss the case and the directives on collection.

During a January 30, 2002 telephone conversation, Ms. Tranchemontagne told me that I could not bring my grievance to adjudication. In the Public Service Staff Relations Board decision in File No. 166-2-27886, D. Leonarduzzi and Treasury Board (Transport Canada), the adjudicator found that, when an issue is raised by an employee, an adjudicator has the requisite authority to enquire into whether a rejection on probation is in fact a sham or a camouflage, and thus has the requisite jurisdiction to determine the grievance on its merits.

During an August 2001 meeting, I even told Sabri Khayat that Ms. Blais had criticized my work. She had criticized me for discussing the disposal of assets with a trustee. Yvon Pelletier had given me that advice. The following morning, I again spoke with Ms. Blais, telling her that I had followed the instructions of Yvon Pelletier, a technical advisor.

In January 2002, during a telephone conversation with Ms. Tranchemontagne, I requested her advice about the Firmin Lamarche case; she was unable to discuss the case. In the Firmin Lamarche case, Ms. Blais demonstrated her incompetence. She had me call a suicidal, penniless client. The account mentioned the client's suicidal tendencies. I even told Ms. Blais that it was inappropriate to call a suicidal client in order to obtain the details of his automobile expenses. As well, Revenu Québec had taken out an equitable lien, and I had suggested the same thing to Ms. Blais.

During the January 30, 2002 telephone conversation, Ms. Tranchemontagne refused to tell me about the questions and answers from the December 21, 2001 consultation. She explained to me that she did not recall the questions and answers from the consultation. She did not take any notes during the December 21, 2001 consultation. She told me that the information from the consultation was confidential and that I did not have the right to know it.

During a January 2002 telephone conversation, Ms. Tranchemontagne told me that the employer may refuse to disclose income tax accounts for reasons of confidentiality. She lied to me, because, in the decisions in R. Ling and Treasury Board (Veterans Affairs Canada), Board Files No. 166-2-27472 and No. 166-2-27975, the adjudicator found that the employee had the right to know the facts and evidence against him and to defend himself accordingly. The Privacy Act could not be invoked to deprive the employee of those rights.

According to page 6 of the September 27, 1993 union directive, if the reasons for dismissal are not disciplinary and there is no significant evidence of bad faith by the employer, an adjudicator does not have jurisdiction to hear the grievance. In my case, the employer acted in bad faith. The employer invented shortcomings in my performance evaluation report and during the October 2002 meeting with Francine Fortier and Mr. Bourdeau.

Mr. Bourdeau and Ms. Fortier made false statements; in August I spoke with Mr. Khayat and gave him a document entitled [translation] "accounts worked on" and a document entitled [translation] "check report Antoine", indicating the false statements made by the employer. Mr. Khayat already had the document entitled [translation] "Friday, October 20, 2000 meeting" prepared by Mr. Brunette. The latter document also contained comments about the false statements made by the employer.

During a January 30, 2002 telephone conversation, Ms. Tranchemontagne acknowledged the injustices against me. In February 2002, she did not want to take any action against the employer even though the employer had exceeded the time limits for replying at the fourth level. During a February 21, 2002 telephone conversation, Ms. Tranchemontagne told me to wait even though the legal time limits had expired. She stated that she had made an agreement to extend the time limit. I never authorized any delay without a return to work. In a February 27, 2002 e-mail message I requested a copy of her agreement to extend the time limit. She never replied.

In January 2002, Ms. Tranchemontagne stated that she had reviewed my complaint of harassment; a few seconds later, she asked me if Ms. Fortier was mentioned in my complaint. Ms. Tranchemontagne acknowledged that Ms. Fortier could not rule on my complaint of harassment, but took no action against Ms. Fortier.

Ms. Tranchemontagne never asked me for details about the incidents of harassment. Despite the complexity of the case, she never asked me any questions about the facts. During a January 2002 telephone conversation, I told her that I had worked at the Laval office without ever receiving a reprimand. I told her that I had contacted Jocelyn Plante of the Laval office, my former manager, who told me he had not made any evaluations of my work that would be prejudicial to me. Ms. Tranchemontagne said, "So what?" I had to explain to her that honesty was at issue, because Mr. Plante was my manager at the CCRA. Ms. Tranchemontagne's behaviour indicated that she was not interested in defending me and refused to prepare arguments in my defence.

In December 2001, I asked Ms. Tranchemontagne to analyse the shortcomings and comments I had noted in the document entitled [translation] "accounts worked on" and to note the number of shortcomings the other officers had made in the accounts that I had worked on. I asked her to prepare statistics about those accounts. She did not provide me with any of the statistics I had requested. She did not give me a copy of my grievance file, as I had asked.

Ms. Tranchemontagne refused to take further action against the employer. She refused to take action against the intimidation to which Mr. Brunette, my union representative, had been subjected in October 2000. One day in October 2000, when there was an alarm, Mr. Brunette met with Ms. Fortier. At the conclusion of that meeting, he explained to me that he had had a reprimand for his work as a PM-3. During the evacuation following the false alarm, I discussed his reprimand with him at the Fontaine Santé café.

In August 2001, I explained to Mr. Khayat that the October 2000 evaluation report written by Mr. Bourdeau included false statements. I showed him the notes I had taken when I met with Mr. Bourdeau and Ms. Fortier. I also told Mr. Khayat to read the document entitled [translation] "accounts worked on" and to analyse the criticisms made in it by Ms. Fortier, Mr. Bourdeau and Ms. Blais.

Starting in July 2001, Mr. Khayat did not reply to the questions in my numerous e-mail messages. During a September 2001 telephone conversation, he gave me to understand that he had forwarded the dismissal grievance to the third level in August 2001 and that, given the September 11, 2001 attacks, the CCRA had not had time to reply.

In an e-mail message, Mr. Brunette indicated that he did not want to give me my co-workers' contact information. He said that he had replied to Mr. Khayat.

During a January 2002 telephone conversation, Mr. Khayat lied by telling me that he had had no reply from Mr. Brunette about my co-workers' contact information.

The fact that the union exceeded the time limits at the third and fourth levels has caused me harm. The union did not defend my other two disciplinary grievances. If the reprimands are unfounded, there can be no dismissal.

During a December 2001 telephone conversation, Mr. Brunette refused to reply to my questions or to give me his opinion. In the spring of 2001, he gave me to understand that he had forwarded the file to Mr. Khayat. After checking, I discovered that that indication was untrue, and I called Ms. Bannon, the President of the union, to complain.

Mr. Khayat and Ms. Tranchemontagne refused to question the witnesses, my co-workers. They refused my November 5, 2001 request that preparatory meetings with the witnesses be held. Such meetings were necessary in order to shed light on the instructions I had received at work. In an October 1, 2001 e-mail message, I requested a preparatory meeting with my co-workers in order to discuss the facts. Mr. Khayat never wanted to meet with my co-workers or hold meetings with them. I also reiterated my September 10, 2001 questions; he never replied to them.

In an October 29, 2001 e-mail message, I asked Mr. Khayat to prepare questions for the witnesses. He refused to do so. How can Ms. Tranchemontagne make a complete decision if facts are incomplete and questions unanswered?

In a November 5, 2001 e-mail message, I told Ms. Tranchemontagne that, under clause 19.02 of the collective agreement, the grievance could not be heard by the person who was the subject of the complaint. In my case, Ms. Fortier replied to my grievance. She criticized me for sending the same document to the same place twice. I pointed out to her that she had made a mistake. The document had been sent to two different branches. During the October 2000 meetings, Ms. Fortier made a number of false statements. She was the subject of my harassment complaint and my grievance.

Mr. Brunette did not respect the time limits under clause 18.12 of the collective agreement for forwarding the grievances to the third level. Mr. Khayat did not respect those time limits in filing the grievances at the third level.

In a June 23, 2001 e-mail message, I asked Mr. Khayat that the dismissal grievance be heard as soon as possible. He refused to forward the dismissal grievance directly to the fourth level, as is provided for in clause 18.19 of the collective agreement.

The grievance in Callum Scott and Canada Customs and Revenue Agency ( 2001 PSSRB 82) was processed quickly. On October 26, 1999, Mr. Scott filed a grievance to contest his unjust dismissal. On April 13, 2000, the employer dismissed the grievance at the final level of the grievance procedure. On May 19, 2000, the grievance was referred to adjudication. Guy Giguère, the adjudicator, rendered a decision on July 31, 2001. Although the adjudicator's decision acknowledged that internal remedies existed, he heard the grievance.

In a February 28, 2001 e-mail message, I asked Mr. Brunette for a copy of the employment contract I had signed in January 2000. He made no reply to this request.

In a number of e-mail messages, I told the union representatives that I wanted to respect the time limits set out in the collective agreement. In a September 10, 2001 e-mail message, I even asked Mr. Khayat to skip one level. He never replied to my numerous questions of September 10, 2001.

A number of telephone conversations with the union representatives were recorded; a transcript or hearing of the audiotapes is available on request. Given the case law allowed by the Board, particularly the decisions in Rose and Treasury Board (Revenue Canada - Customs and Excise), Board Files No. 166-2-27307 and No. 166-2-27308, I wish the conversations to be heard and the transcripts analysed.

[4]   Mr. Archambault requests the following order:

[Translation]

Part 5: Order requested

Given the collusion and the repeated, deliberate behaviour by the union representatives, exemplary damages are called for.

Compensation in an amount equivalent to four years' wages is reasonable in light of the loss of my employment and the loss of my layoff right. In the decision in J. Matthews and the Canadian Security Intelligence Service, Board File No. 166-20-27336, monetary damages were awarded in compensation for unjust dismissal. As well, in the decision in R. Ling and Treasury Board (Veterans Affairs Canada), Board Files No. 166-2-27472 and No. 166-2-27975, the adjudicator awarded damages in an amount equivalent to 48 months' wages in compensation for the harm suffered.

The order must take into account the harm to my reputation and my difficulty finding new employment.

The stress, anguish, worry, insomnia and psychological problems I have suffered must be taken into consideration. In that regard, an amount of $10,000 is reasonable for the loss of my quality of life and the difficulties taking care of my daughter. I have had to cancel a number of social and sports activities because of my depression.

[5]   The respondent submitted the following reply to Mr. Archambault's complaint:

[Translation]

BACKGROUND

Pierre Archambault, the complainant, accepted a term contract with the Canada Customs and Revenue Agency (CCRA). This contract, dated January 10, 2000, provided for a termination date of March 31, 2001.

However, on October 30, 2000, following a review of Mr. Archambault's performance, the CCRA notified him that he was being rejected on probation, effective November 13, 2000. In the CCRA's opinion, Mr. Archambault did not meet the employer's expectations regarding the quality of his work. In the same notice, the CCRA informed Mr. Archambault that, under the CCRA's staffing policy, he had the right to contest that decision. Mr. Archambault exercised that right.

Mr. Archambault filed three grievances concerning his dismissal, alleging harassment against him by certain CCRA employees. He also filed a complaint of harassment with Élisabeth Châtillon, Assistant Commissioner.

The employer's position was that the grievances and the complaint of harassment were inadmissible. One reason cited by the employer was that Mr. Archambault's allegations had to be addressed by means of another administrative procedure.

COMPLAINT

The parties named in the complaint did look after the representation of Mr. Archambault's grievances. Denis Brunette looked after the representation at the first and second levels of the grievance procedure; Sabri Khayat looked after the representation at the third level; and Michelle Tranchemontagne looked after the representation at the final level. Betty Bannon is the National President of the Union of Taxation Employees (UTE), a component of the Public Service Alliance of Canada (PSAC).

Concerning the allegations set out in Mr. Archambault's complaint, we point out, first of all, that at no time did Mr. Archambault's representatives act in bad faith during the processing of these grievances. Mr. Archambault was provided with very good representation, despite the fact that the employer considered both the grievances and the complaint of harassment inadmissible. As well, Ms. Tranchemontagne tried to explain the reasons for the employer's position to Mr. Archambault a number of times, but to no avail.

In this reply, we shall not address each point set out in Mr. Archambault's complaint. That said, we wish to clarify certain allegations made by Mr. Archambault. For example, in point No. 2 of the complaint, Mr. Archambault has accused Ms. Bannon of never returning his May 2001 call. However, Ms. Bannon, who does not speak French, had asked Michel Lefebvre, her executive assistant, to look after the matter. Mr. Lefebvre contacted Mr. Khayat. Mr. Khayat then contacted Mr. Archambault to tell him that, following his call to Ms. Bannon at the National Office, his file would soon be forwarded to the third level.

As another example, Mr. Archambault has accused Ms. Tranchemontagne of refusing to tell him his manager's union status or the reasons for the change of position of Suzanne Blais. Firstly, Ms. Tranchemontagne told Mr. Archambault that he should contact the president of his union local concerning his manager's union status; secondly, she told him that she was unable to provide him with the information he wanted concerning Ms. Blais, because she did not have that information.

Mr. Archambault has also criticized Ms. Tranchemontagne for not giving him his former co-workers' contact information, but Ms. Tranchemontagne did not have that information.

As well, Mr. Archambault has criticized his representatives for refusing to meet with his former co-workers to discuss his work performance. However, as Ms. Tranchemontagne tried to explain to him, and as he had requested, Ms. Tranchemontagne was not contesting his performance evaluation, but the allegation that his dismissal was a disciplinary action in disguise.

In addition, Ms. Tranchemontagne apparently did tell Mr. Archambault that his grievance could not be referred to adjudication. However, Mr. Archambault failed to mention that Ms. Tranchemontagne had explained to him that his case contained no disciplinary element that could support an argument of dismissal in disguise and thus make his grievance arbitrable.

Although Mr. Archambault has noted that the Public Service Staff Relations Board (PSSRB) decision in

Leonarduzzi (Board File No. 166-2-27886) found that an adjudicator has the requisite authority to enquire into whether a rejection on probation is in fact a "camouflage", that decision, which has to do with a preliminary objection by the employer concerning an adjudicator's jurisdiction in cases of rejection on probation, states:

To summarize, in my view it is incumbent upon the employer to demonstrate that section 28 of the PSEA, respecting rejection on probation for cause, has application. Upon discharging that initial burden, the burden of proof then shifts to the grievor to demonstrate that the employer's actions are in fact a sham or a camouflage, and therefore not in accordance with section 28 of the PSEA. It is only upon the discharge of that burden that the adjudicator can take jurisdiction under section 92 of the PSSRA and consider the grievance on its merits.

Thus an adjudicator may hear a grievance concerning rejection on probation only if the employer is unable to establish the reasons for the rejection on probation, and then only if the grievor discharges the burden of proving that the rejection was a "sham" or a disciplinary action in disguise. It should be noted that, in Leonarduzzi (supra), the employer provided no evidence of its reasons for the rejection on probation of Mr. Leonarduzzi. As Ms. Tranchemontagne pointed out, Mr. Archambault's case contained no disciplinary element that could make his grievance arbitrable.

In conclusion, we consider Mr. Archambault's complaint unfounded. No evidence was adduced by Mr. Archambault establishing that the representatives named in the complaint acted in bad faith in the representation of his grievances.

[...]

[6]   Mr. Archambault, representing himself, testified at the hearing of his complaint. He adduced 98 exhibits, one of which (Exhibit 91), was withdrawn by consent.

[7]   Mr. Archambault stated that in January 2000 he left Revenu Québec to accept a position as a collection contact officer with the CCRA.

[8]   In the summer of 2000, Mr. Archambault discussed his manager's criticisms of him with a union representative. The union representative advised him to take notes and to [translation] "keep a low profile" until Mr. Brunette, Second Vice-President of UTE Local 10017, returned.

[9]   Mr. Archambault met with Mr. Brunette in August 2000; Mr. Brunette told him to remain calm, to take notes, and to avoid confrontation. On September 13, 2000, Mr. Archambault was called to a meeting by management and asked Mr. Brunette to accompany him.

[10]   At the meeting, Mr. Archambault was criticized for shortcomings and was given a letter of prior notice of rejection on probation unless his performance improved according to a special evaluation to be carried out in two weeks' time. Mr. Brunette accompanied Mr. Archambault to the meeting and gave him advice. Mr. Brunette assisted Mr. Archambault in contesting the September 14, 2000 letter by means of grievance No. 1247-461-18773 (Exhibit P-3), dated October 12, 2000.

[11]    On October 3, 2000, Mr. Brunette accompanied Mr. Archambault to a meeting with Antoine Bourdeau, the new team leader of the complainant and of Pauline Couture, a technical advisor. Mr. Archambault was given a list of evaluation criteria (Exhibit P-2).

[12]   Between October 6 and 20, 2000, Mr. Archambault met with his team leader unaccompanied three times. On October 20, 2000, Francine Fortier met with Mr. Archambault; she refused to allow Mr. Brunette to accompany him.

[13]   On October 30, 2000, management met with Mr. Archambault, who was accompanied by Mr. Brunette, and gave him a letter of rejection on probation, effective November 13, 2000. On November 2 and 3, 2000, Mr. Archambault met with Mr. Brunette at the union local office. They prepared two other grievances. The first grievance, No. 1249-461-19682 (Exhibit P-4), contests [translation] "harassment and abuse of power"; the second grievance, No. 1249-461-19683 (Exhibit P-5), contests the termination of employment. On November 3, 2000, Mr. Archambault signed the grievances; on November 6, 2000, Mr. Brunette filed them with management.

[14]   Mr. Brunette listened to Mr. Archambault, suggested that he file a complaint of harassment, and explained to him how to do so.

[15]   Mr. Archambault stated that he never heard from Mr. Brunette during the rest of November 2000. On December 13, 2000, Mr. Archambault provided further details about his complaint; Mr. Brunette sent him an e-mail message suggesting that he include an additional paragraph. Mr. Archambault took this advice, and filed his complaint with Ms. Châtillon.

[16]   On January 24, 2001, Mr. Archambault attended an individual feedback session with Ms. Fortier. He was unaccompanied. The reply concerning the feedback was delayed by Ms. Fortier's vacation.

[17]   In May 2001, Mr. Archambault decided to contact Mr. Brunette in order to learn what was happening regarding his grievances. He was told to wait. Mr. Brunette told Mr. Archambault that his grievances had been forwarded to Mr. Khayat, who was to look after the third and fourth levels. Mr. Archambault waited one week and called Mr. Khayat, who told him that he had not received the file.

[18]   Mr. Archambault called Ms. Bannon, UTE President, and discussed with her his grievances, which Mr. Brunette said he had forwarded to Mr. Khayat, who said he did not have them. Ms. Bannon told Mr. Archambault she would call him back the same day. They spoke to each other in English. Ms. Bannon did not call him back, but Mr. Khayat called him back two days later to say that he had the file.

[19]   Mr. Archambault had numerous communications with the union representatives; he was unable to remember all of those communications. Given the uncertainty of the situation, on May 17, 2001 he sent Mr. Brunette a request by facsimile (Exhibit P-6). Mr. Archambault stated that he did not receive a copy of the file or a reply to his letter.

[20]   On May 31, 2001, Mr. Archambault met with Mr. Khayat. Together they analysed the performance evaluations and discussed the grievances and how to proceed. The meeting lasted an hour or two.

[21]   In May 2001, Mr. Archambault asked the CCRA for a reply concerning the feedback provided by Ms. Fortier. He eventually received a negative reply, in which the CCRA upheld the "dismissal" without indicating the positive aspects of his performance. On June 7, 2001, Mr. Archambault asked Mr. Martineau, Director of the Montérégie Region for the CCRA, for a review of the feedback (Exhibit P-7); on June 11, 2001, he sent a copy to Mr. Khayat.

[22]   On June 21, 2001, Mr. Archambault met with Mr. Martineau unaccompanied. According to Mr. Archambault's testimony, he had been told that he could not be accompanied by a union representative when meeting with Mr. Martineau. Mr. Archambault stated that he did not receive a detailed reply to the November 3, 2000 complaint.

[23]   On June 23, 2001, Mr. Archambault sent a reply (Exhibit P-8) to Mr. Khayat, in response to his request for news concerning the review (Exhibit P-9).

[24]   On June 21, 2001, Mr. Archambault had given Mr. Martineau the unsorted documents received from the CCRA so that Mr. Martineau could have them sorted by his unit. At the beginning of July, Mr. Archambault received the sorted documents; at the beginning of August, he received a decision. He was unable to say whether he received both at the same time.

[25]   On August 2, 2001, Mr. Archambault sent an e-mail message to Mr. Khayat, requesting news concerning his various grievances. Mr. Archambault stated that he made a number of telephone calls and left a number of messages on the union office's voice mail and with Mr. Khayat's cellular telemessaging service; on August 16, 2001, he managed to speak to Mr. Khayat. Mr. Archambault adduced the e-mail messages exchanged between himself and Mr. Khayat on August 21 and 22, 2001 (Exhibit P-11).

[26]   In August 2001, Mr. Archambault met with Mr. Khayat three times: on August 16, 24 and 31. Mr. Archambault wanted to know whether Mr. Khayat had examined his case and how well he knew the case, and asked him some test questions.

[27]   Mr. Khayat sent Mr. Archambault a copy of his e-mail message to Lise Gariépy notifying the employer that the union wished to proceed with the hearing of Mr. Archambault's grievances (Exhibit P-12).

[28]   Mr. Archambault sent e-mail messages to Mr. Khayat on August 30, 2001 (Exhibit P-13); on September 4, 2001 (Exhibit P-14); on September 10, 2001 (Exhibit P-15); and on September 17, 2001 (Exhibit P-16).

[29]   Mr. Archambault understood that on August 24, 2001 Mr. Khayat had sent a request to proceed to the next level of the grievance procedure; Mr. Archambault was concerned about the delays. Mr. Khayat told him that the grievances had been delayed because of the individual feedback and the review by Mr. Martineau.

[30]   Since Mr. Archambault had not received a reply to his e-mail message (Exhibit P-15), he made telephone calls and managed to reach Mr. Khayat on his cell phone. Mr. Khayat told him that, because of the incidents of September 11, 2001, he was unable to reply to Mr. Archambault's questions since he was very busy with security matters.

[31]   On September 17, 2001, Mr. Archambault sent an e-mail message to Ms. Tranchemontagne (Exhibit P-17). On September 18, 2001, he received a reply from Denis Lalancette of the UTE (Exhibit P-18). Mr. Archambault received an acknowledgement of receipt from Mike Lefebvre of the UTE (Exhibit P-19).

[32]   On October 1, 2001, Mr. Archambault sent an e-mail message (Exhibit P-20), which he sent again on October 9, 2001 (Exhibit P-21), requesting replies to his September 10, 2001 questions (Exhibit P-15). On October 11, 2001, he sent an e-mail message to Ms. Gariépy (Exhibit P-22), who replied on October 12, 2001 (Exhibit P-23). On October 13, 2001, Mr. Archambault sent an e-mail message to Mr. Khayat (Exhibit P-25) requesting a reply to the questions contained in his September 17, 2001 e-mail message and news concerning his grievances.

[33]   On October 15, 2001, Mr. Archambault sent an e-mail message to Mr. Khayat with a copy to Ms. Tranchemontagne, notifying them that he had received a reply to his grievances and stating that he wished to skip the fourth level (Exhibit P-26). That same day, Mr. Archambault sent two additional e-mail messages to Mr. Khayat with a copy to Ms. Tranchemontagne (Exhibit P-27 and Exhibit P-28). A copy of the e-mail message adduced as Exhibit P-28 was also sent to the Prime Minister of Canada.

[34]   On October 17, 2001, Mr. Archambault called Mr. Khayat and made an appointment with him. On October 22, 2001, Mr. Archambault met with Mr. Khayat. In Mr. Archambault's presence, Mr. Khayat prepared an e-mail message to Mr. Brunette (Exhibit P-29) requesting the telephone numbers of nine potential witnesses.

[35]   On October 26, 2001, Mr. Archambault's grievances were forwarded to the fourth level (Exhibit P-24).

[36]   From October 22 to November 20, 2001, Mr. Archambault sent nine e-mail messages to Mr. Khayat and to Ms. Tranchemontagne, and received five replies (Exhibit P-30 to Exhibit P-43).

[37]   Mr. Archambault adduced in evidence numerous electronic documents (Exhibit P-45 to Exhibit P-57), which were sent to the union at various times.

[38]   On November 30, 2001, Mr. Archambault sent an e-mail message to Ms. Tranchemontagne (Exhibit P-58), requesting copies of 10 records and requesting that she meet with the witnesses and proceed as quickly as possible. On December 4, 2001, Mr. Archambault sent Ms. Tranchemontagne one e-mail message (Exhibit P-59); on December 5, 2001, he sent her two others (Exhibit P-60 and Exhibit P-61). Ms. Tranchemontagne replied on December 6, 2001 (Exhibit P-62 and Exhibit P-63).

[39]   On December 13, 2001, Mr. Archambault sent Ms. Tranchemontagne an e-mail message (Exhibit P-64); on December 14, 2001, he sent her another (Exhibit P-65). These e-mail messages asked questions and expressed Mr. Archambault's requirements, including that he attend the consultation meeting with the employer concerning his grievances.

[40]   On December 17, 2001, Mr. Archambault sent an e-mail message to Mr. Khayat (Exhibit P-66). On December 19, 2001, he sent one to Mr. Brunette (Exhibit P-67); Mr. Brunette replied the same day (Exhibit P-68). On December 20, 2001, Mr. Archambault sent an e-mail message to Mr. Khayat (Exhibit P-69). On December 21, 2001, in an e-mail message (Exhibit P-70), Mr. Archambault requested the Directive on Recourse for Staffing (Exhibit P-71), which he obtained on January 14, 2002 after a call to Ms. Tranchemontagne.

[41]   During that conversation, Mr. Archambault learned that the consultation had taken place on December 21, 2001. According to his testimony, Ms. Tranchemontagne told him that he could not attend the consultation because it was a procedure without prejudice. They discussed Mr. Archambault's grievances and Ms. Tranchemontagne's opinion of them; she stated that she had read the grievances. Mr. Archambault questioned the action taken.

[42]   On January 22, 2002, Mr. Archambault spoke to Mr. Khayat, questioning him about his case. On January 30, 2002, Mr. Archambault called Ms. Tranchemontagne, asking her for a copy of his January 2000 employment contract. He asked Ms. Tranchemontagne whether she had carefully read his case; she replied in the affirmative. Mr. Archambault questioned Ms. Tranchemontagne about the write-off reports forwarded to Mr. Khayat; he stated that she had hung up on him with no explanation, but later stated that, when he asked whether Ms. Tranchemontagne had read the directives on collection, she told him someone was waiting on the other line.

[43]   On February 21, 2002, Mr. Archambault had one last telephone conversation with Ms. Tranchemontagne. He stated that he did not want the employer to be granted an extension of the time period for replying. Ms. Tranchemontagne had not yet received a reply and told Mr. Archambault that she had not granted an extension of the time period.

[44]   Mr. Archambault adduced an August 10, 2001 letter from Lyson Paquette of the UTE (Exhibit P-72), received several days later, to which were attached the documents described in the letter: an excerpt from clause 18 of the collective agreement; an excerpt from the Public Service Staff Relations Act; the decision in Penner; Forms 14; and a September 27, 1993 analysis and opinion by the PSAC in a similar case, signed by Evelyne Henry, then chief of the grievances and adjudication section.

[45]   Ms. Cabana objected to the filing of this exhibit, which she considered irrelevant because it had to do with the merits of the grievance and not with the subject of the complaint of non-representation. I dismissed the objection because any communication between Mr. Archambault and his bargaining agent is relevant in determining the nature, the frequency and the objectivity of the representation he received.

[46]   On March 21, 2002, Mr. Archambault received from Ms. Tranchemontagne an e-mail reply (Exhibit P-73) to his February 27, 2002 e-mail message.

[47]   Mr. Archambault adduced in evidence the following letters he received from Ms. Tranchemontagne: one dated August 21, 2001 (Exhibit P-74); one dated November 27, 2001 (Exhibit P-75); one dated December 10, 2001 to Mr. Rénald Boudreau with a copy to Mr. Archambault (Exhibit P-76); one dated January 15, 2002 (Exhibit P-77); one dated March 21, 2002, to which were attached three letters to the employer requesting a reply to the grievances, as well as a copy of the February 9, 2000 offer of employment accepted by Mr. Archambault on February 15, 2000 (Exhibit P-78); and one dated April 16, 2002, to which were attached copies of the final reply to the grievances and a Form 14 (Exhibit P-79).

[48]   Mr. Archambault received from the Board a copy of the PSAC's April 16, 2002 reply to his complaint (Exhibit P-80). On April 29, 2002, Ms. Tranchemontagne forwarded Mr. Archambault's file to the PSAC (Exhibit P-81). On May 14, 2002, Mr. Archambault received a letter from the PSAC signed by Nathalie St-Louis (Exhibit P-82). Mr. Archambault stated that those letters did not indicate that the union had conducted an in-depth analysis of his case.

[49]   Mr. Archambault adduced the Policy Against Harassment in the Workplace (Exhibit P-83) that Mr. Brunette had given him in October 2000.

[50]   Mr. Archambault adduced a November 21, 2000 letter from himself to the Director at the Longueuil office (Exhibit P-84) concerning access to his inventory for the preparation of the individual feedback. He also adduced the April 24, 1998 performance evaluation (Exhibit P-85), which he had given to Mr. Brunette in October 2000.

[51]   Mr. Archambault adduced the following e-mail messages: one from Mr. Brunette to himself, dated December 13, 2000 (Exhibit P-86), containing suggestions concerning his complaint; one from himself to Mr. Brunette, dated February 28, 2001 (Exhibit P-87), containing a list of questions; and one from himself to the Vice-President of the PSAC, dated May 19, 2001 (Exhibit P-88).

[52]   Mr. Archambault adduced a copy of his May 2, 2001 letter to Ms. Fortier (Exhibit P-89), in which he indicates that he had not received a reply concerning the individual feedback and requests copies of the attachments (Exhibit P-90) to the performance evaluation report written by Mr. Bourdeau (Exhibit P-92).

[53]   Under cross-examination, Mr. Archambault indicated that at the CCRA he had held a term position from January 2000 to March 31, 2001.

[54]   Mr. Archambault confirmed that he had met with Mr. Brunette, that Mr. Brunette had given him advice, and that he had given him the notes he had taken and the documents relevant to his grievances. In 2000, Mr. Archambault was satisfied with the union's work.

[55]   Mr. Archambault stated that, starting in May 2001, Mr. Brunette no longer wished to represent him because he had forwarded the file to Mr. Khayat. In December 2001, Mr. Brunette refused to discuss Mr. Archambault's case because it had reached the fourth level, at which Ms. Tranchemontagne looked after the representation. In December 2001 or January 2002, Mr. Khayat also refused to discuss the merits of the grievances or any strategy, referring Mr. Archambault to Ms. Tranchemontagne.

[56]   Mr. Archambault criticized Mr. Khayat for not obtaining the negative evaluation of Mr. Archambault from Mr. Plante in writing; for exceeding the time limits set out in the collective agreement for forwarding his grievances to the third level, for being unable to answer his questions about the directives on collection, and for not granting his request for a preparatory meeting with the witnesses.

[57]   Mr. Archambault criticized Mr. Brunette for not forwarding the dismissal grievance directly to the fourth level, as is provided for in clause 18.19. He also criticized him for never asking any specific questions about the discrimination and the accounts he had worked on after he gave Mr. Brunette a list at the beginning of December 2000 as well as a 50-page document on the accounts he had worked on (see Exhibit P-93 and Exhibit P-56).

[58]   In April or May 2001, Mr. Brunette told Mr. Archambault that he had forwarded the grievances to Mr. Khayat, who told Mr. Archambault he had not received the file.

[59]   In December 2001, Mr. Archambault gave Mr. Brunette a bottle of wine; he was satisfied with Mr. Brunette's services. Mr. Brunette told him he had given the list of potential witnesses to Mr. Khayat (see Exhibit P-68).

[60]   On October 20, 2000, Mr. Archambault attended a meeting, during which Mr. Brunette drew up with him a document identifying the accounts and summarizing the October 20, 2000 meeting with Ms. Fortier. Mr. Brunette had not attended the meeting with Ms. Fortier because management had refused to allow a union representative to be present during the special evaluation that formed part of the follow-up initiated on October 3, 2000.

[61]   Mr. Archambault identified the October 30, 2000 letter from Ms. Fortier (Exhibit S-1) notifying him that he was being rejected on probation, which he described as a dismissal. He also identified the September 14, 2000 letter notifying him that the employer intended to reject him on probation unless his performance improved substantially.

[62]   Mr. Archambault identified the replies to his grievances at various levels (Exhibit S-3 through Exhibit S-6). There were no meetings or consultations at the first, second or third levels of the grievance procedure.

[63]   Mr. Archambault asked Mr. Khayat why his grievance No. 1247-461-19683 (Exhibit P-5) had not been forwarded to the fourth level. Mr. Khayat answered that he had to wait for a reply concerning the individual feedback. Mr. Archambault and Mr. Khayat discussed the events. Mr. Khayat told Mr. Archambault that he needed some additional documents in order to analyse his performance.

[64]   At the beginning of July, Mr. Archambault received the reply concerning the review of the individual feedback; on August 2, 2001, he notified Mr. Khayat of that reply (Exhibit P-10).

[65]   Mr. Archambault stated that during the August 2001 meetings Mr. Khayat had told him that there was not enough evidence, or strong enough evidence, to refer his grievances to adjudication. Mr. Khayat looked at the documents Mr. Archambault had brought him and asked him some questions. They discussed the performance evaluation report written by Mr. Bourdeau. Mr. Khayat was at the computer and was writing notes. On August 24, 2001, Mr. Khayat gave Mr. Archambault copies of the grievance transmission forms.

[66]   Mr. Archambault wanted Mr. Khayat to meet with his co-workers and have them testify about his performance, attendance, punctuality, behaviour, time spent photocopying, and whether the manager stamped their documents on the back as often as his. Mr. Khayat did not tell Mr. Archambault that he had not met with his witnesses.

[67]   Mr. Archambault criticized Ms. Bannon for not replying to his May 14, 2001 request, for not knowing how his case had been processed, and for not calling him back herself.

[68]   Mr. Archambault criticized Ms. Tranchemontagne for not telling him about the records obtained under access to information; for not evaluating his shortcomings and the positive aspects of his performance in writing; for not meeting with his co-workers; for the delays in the reply to his grievances; and for the fact that he did not attend the consultation at the fourth level. Mr. Archambault was not satisfied with the replies to his questions to Ms. Tranchemontagne concerning the preparation for and the content of the consultation, or with the replies to his e-mail messages.

[69]   During the cross-examination of Mr. Archambault, just after the hearing was re-convened on February 18, 2003, counsel for the respondent made a motion for recusal because of the appearance of conflict of interest raised by Exhibit P-72. The latter is an August 10, 2001 letter from Ms. Paquette to Mr. Archambault. Attached to that letter were: an excerpt from clause 18 of the collective agreement; an excerpt from the PSSRA; the decision in Penner (Board Files No. 166-2-17493 and No. 856-88); a Form 14; and a 10-page letter signed by myself on September 27, 1993 in my then capacity as chief of the grievances and adjudication section at the PSAC.

[70]   The September 27, 1993 letter was an opinion issued following the conditional referral to adjudication of a grievance concerning the termination of employment of a term employee on probation. According to Ms. Cabana, I expressed an opinion on behalf of the PSAC in a case very similar to that of Mr. Archambault. That fact, as well as the fact that the letter was adduced in evidence over Ms. Cabana's objections, could give rise to an appearance of conflict of interest in Mr. Archambault's favour, which could justify a judicial review following a decision unfavourable to him.

[71]   Ms. Cabana emphasized that a complaint under section 23 is not a forum for considering the merits of the grievance. She requested that I recuse myself and terminate the hearing, and that the Board appoint another Member to hear the complaint. The respondent did not want to have to address the issue of perceived conflict of interest in the Federal Court.

[72]   Mr. Archambault objected to Ms. Cabana's motion for recusal even though he suspected it was reasonable. He considered that Exhibit P-72 was one document among more than 90, had to do with background issues, and analysed only the decisions in Chamberland and Penner.

[73]   Mr. Archambault stated that all of his evidence was to the effect that the grievance had not been forwarded straight to the fourth level as is provided for in clause 18.19 of the collective agreement, and that the basic issues he raised remained unaddressed. He provided a 50-page document on the accounts he had worked on, for consideration and so that the other employees' shortcomings could be considered, but the respondent did not want to do that work.

[74]   Mr. Archambault considered the motion for recusal a strategy to delay the proceedings. He wished the hearing to continue, and wished me to hear the complaint.

[75]   Mr. Archambault stated that he had been dismissed in November 2000 and was still suffering harm from that dismissal since he was not receiving any financial assistance. Mr. Archambault wished me to resolve this issue as quickly as possible.

[76]   In rebuttal, Ms. Cabana stated that Mr. Archambault had made false statements, and referred me to Exhibit P-82, the May 14, 2002 letter from Ms. St-Louis. On May 17, 2002, Mr. Archambault refused the PSAC's assistance.

[77]   According to Ms. Cabana, Mr. Archambault's statements contained contradictions. He said, on the one hand, that there might be doubts about the appearance of conflict of interest and, on the other hand, that he wished me to continue.

[78]   Concerning whether the PSAC made arbitrary decisions, case law is an important factor in determining whether or not a decision is arbitrary. According to Ms. Cabana, Mr. Archambault expected me to rule on the merits of the grievance.

[79]   Ms. Cabana denied that the motion for recusal was a strategy to delay the proceedings. The only reason she made the motion was to avoid having to address the issue in the Federal Court.

[80]   I dismissed the motion for recusal. Mr. Archambault objected to the recusal and asked me to continue the hearing of his complaint knowing that I had issued an opinion in a case similar to the case involving the merits of his grievance.

[81]   The PSAC suffers no harm as a result of my hearing Mr. Archambault's complaint. There are no substantial grounds affecting my ability to hear this complaint impartially.

[82]   Mr. Archambault called Ms. Tranchemontagne as a witness. Since March 1987, Ms. Tranchemontagne has been legal advisor to the UTE. She received Mr. Archambault's file on November 13, 2001. The grievances had been forwarded on October 26, 2001; the consultation was held on December 21, 2001. The reply at the fourth level was dated April 3, 2002 and was received on April 8, 2002.

[83]   The collective agreement provides that the employer has 30 working days after the grievance is presented to reply at the fourth level. Ms. Tranchemontagne explained that the latter is interpreted to mean 30 working days following the consultation at the fourth level. In her opinion, the time limit was to be calculated starting on December 21, 2001, not October 26, 2001.

[84]   Ms. Tranchemontagne stated that she had explained the two procedures, the grievance procedure and the staffing procedure, to Mr. Archambault a number of times. She denied telling Mr. Archambault that employees on probation had no recourse.

[85]   Ms. Tranchemontagne stated that she had explained a number of times the burden of proof to be discharged in establishing that a rejection on probation was a disciplinary dismissal in disguise. She explained to Mr. Archambault that he had two avenues under the staffing policy: first, individual feedback by the manager who staffed the position, an avenue that prohibits union representation; and second, review of the individual feedback decision by the manager's superior. Those avenues are parallel to, and independent of, the grievance procedure.

[86]   According to Ms. Tranchemontagne, the employer's position was that, under section 91 of the PSSRA, an employee may not file a grievance when recourse exists under the staffing directive, a position that explains the employer's response that the grievance is inadmissible.

[87]   Ms. Tranchemontagne acknowledged that she had more or less told Mr. Archambault that he could not "shop around" for union representatives. There are accredited union representatives at all levels, and a PSAC officer is authorized to sign the referral to adjudication. It is possible to have the same union representative at the first and second levels of the grievance procedure; at the third level, the Regional Vice-President looks after representation; and at the final level, the UTE National Office does so.

[88]   Ms. Tranchemontagne stated that it was not true that she had hung up on Mr. Archambault or that she had asked for an appointment in order to reply to his questions when he first called in January 2002.

[89]   Ms. Tranchemontagne stated that she had prepared a file that she submitted to the PSAC for a "section 99" when the employer refused consultation at the first two levels of the grievance procedure in Mr. Archambault's case.

[90]   The reply she received was to wait and see how the case developed at the third and fourth levels if the employer refused consultation. The employer replied at the third level without consultation. Mr. Khayat had made a written request for consultation to Ms. Gariépy. Ms. Tranchemontagne also made a written request for consultation at the fourth level. Mr. Bellavance gave her December 21, 2001 as the earliest consultation date he could give her.

[91]   Neither Mr. Archambault nor Ms. Tranchemontagne authorized the employer to exceed the time limits for replying. Ms. Tranchemontagne wrote three letters to the employer urging the employer to reply to the grievances (see Exhibit S-8, Exhibit S-9 and Exhibit S-10).

[92]   Ms. Tranchemontagne stated that she was certain she had told Mr. Archambault that she had written to the employer, and denied sending the three letters to the employer at the same time on March 21, 2002, even though the copies might have been sent to Mr. Archambault together.

[93]   Ms. Tranchemontagne stated that she had not seen Mr. Archambault's request to attend the consultation until after December 21, 2001. She had been having technical problems with her computer.

[94]   Ms. Tranchemontagne stated that Mr. Archambault could have attended the consultation if she had read his December 14, 2001 e-mail message (Exhibit P-65) in time. In practice, it was very rare for complainants to attend at the fourth level. The employer insisted that only one person speak, but that person could be accompanied.

[95]   Ms. Tranchemontagne stated that it was untrue that she had told Mr. Archambault on January 30, 2002 that the consultation at the fourth level was confidential and without prejudice and that he could not attend it. She gave Mr. Archambault a summary of the allegations she had made in his favour. She did not consider it necessary to give him a written report of everything that had been said. She explained to him a number of times that, since the decision in Penner, in cases involving an allegation that a rejection on probation was a dismissal in disguise, the burden of proof was very heavy and was on the grievor.

[96]   Ms. Tranchemontagne read all the documents in Mr. Archambault's file, which was very thick, over 500 pages. She had a number of current cases, between 50 and 100. She gave priority to cases involving termination of employment. She received an average of 20 calls per day and received a number of calls from Mr. Archambault. She did not recall all the details of the conversations. She recalled that Mr. Archambault wanted to skip the fourth level in order to go to adjudication, and that she had explained to him that under section 92 of the PSSRA grievors were obliged to exhaust the grievance procedure before their cases were referred to adjudication.

[97]   Ms. Tranchemontagne acknowledged telling Mr. Archambault that at the fourth level she was not calling any witnesses, whom he wanted to call in support of his allegations that he had performed his work well. She explained to him that witnesses are called at the adjudication stage if the PSAC considers it appropriate to do so and if the testimony is relevant. She requested the telephone numbers of potential witnesses in order to complete her file in case there was a need to proceed further.

[98]   The respondent postponed the cross-examination of Ms. Tranchemontagne, who was to testify during the presentation of the respondent's evidence.

[99]   Testifying for the bargaining agent after Mr. Brunette and Mr. Khayat, Ms. Tranchemontagne explained the grievance management procedure at the UTE. She indicated that Mr. Khayat had brought Mr. Archambault's grievances in person and that they had been examined by his colleague Shane O'Brien, who assigned priority ratings. According to the record, Mr. O'Brien apparently examined the case on November 21, 2001 and gave it a rating of 1, the top priority rating, which is given to cases involving termination of employment, dismissal and financial penalties.

[100]   Ms. Tranchemontagne adduced as Exhibit S-28 a copy of the cover of Mr. Archambault's file. She explained the exhibit, stating that the file was closed on May 21, 2002 when the PSAC gave notification that Mr. Archambault would represent himself. Ms. Tranchemontagne explained the electronic registry that makes it possible to search for cases quickly and to produce a chart showing the progress of a case.

[101]   Ms. Tranchemontagne stated that she had received the file on November 27, 2001. She gave it to her assistant, who organized it in accordance with an established procedure: the official documents on the left, and any documents that might be used in the representation on the right. She sent an acknowledgement of receipt to Mr. Archambault with copies to Mr. Brunette and Mr. Khayat. She also had prepared forms requesting information under the Privacy Act and a form authorizing the documents to be sent to her directly. The purposes of this practice are to avoid photocopying costs and delays and to ensure that the employer refers only to the documents disclosed if the case is referred to adjudication. This practice makes it possible to provide PSAC adjudication officers with full information.

[102]   Ms. Tranchemontagne explained that the employer has 30 days to process requests for information and that this period may be renewed for a further 30 days. Often, the employer takes the 60 days; when the employer takes longer than 60 days, the UTE files a complaint.

[103]   Ms. Tranchemontagne did not have the requested documents when she proceeded to the consultation on December 21, 2001. She received them in February 2002.

[104]   When Ms. Tranchemontagne received Mr. Archambault's file on November 27, 2001, she was already familiar with his case because she had spoken about it with Mr. Brunette and Mr. Khayat. She knew that Mr. Archambault had asked that his case be referred directly to adjudication when it was at the third level. There was no hearing at the first and second levels since the grievance was alleged to be inadmissible. Ms. Tranchemontagne considered that a consultation at the third level should be requested before it would be possible to accuse the employer of failing to respect the clauses of the collective agreement concerning consultation during the grievance procedure.

[105]   Ms. Tranchemontagne knew that Mr. Archambault had stated a number of times that he wanted to proceed as quickly as possible. She had said that she would give Mr. Archambault's case priority. At the end of November 2001, she received a formal notice from counsel for Mr. Archambault (Exhibit S-30). She replied to that notice on December 10, 2001 (Exhibit P-76).

[106]   Ms. Tranchemontagne proceeded to the consultation at the final level of the grievance procedure with the employer on December 21, 2001. She argued that the termination of employment was a dismissal in disguise, not a rejection on probation. She also argued, in the alternative, that the rejection on probation was unfounded, that there had been poor follow-up, and that the follow-up had been solely negative. As did Mr. Archambault's allegations, Ms. Tranchemontagne cast doubt on the managers' knowledge of the internal procedures. She requested that Mr. Archambault be reinstated in his position while the employer reconsidered and re-evaluated the entire case.

[107]   Concerning the harassment grievance, Ms. Tranchemontagne argued on the basis of Mr. Archambault's written allegations, and requested that the employer seriously investigate those allegations.

[108]   Ms. Tranchemontagne was very busy during that period, just before the holiday closing from December 24 to January 3. She submitted together, as Exhibit S-31, her schedules for the months of November 2001 to February 2002. She was on vacation from noon on December 24, 2001 to January 14, 2002.

[109]   After a consultation, Ms. Tranchemontagne returned the file to her assistant, who notified the member. The consultation was held on Friday, December 21, 2001; the notice was sent on January 15, 2002 (Exhibit P-77).

[110]   On March 21, 2002, Ms. Tranchemontagne wrote to Mr. Archambault (Exhibit P-78). Mr. Archambault had asked her to send him a copy of his employment contract. He accused her of extending the time limits for replying to the grievances. She therefore sent him, with the copy of his employment contract, copies of the letters she had written to the employer urging the employer to reply to Mr. Archambault's grievances. She did not receive any reply to her letters to the employer. She received the reply to the grievances on April 8, 2002 (Exhibit S-32).

[111]   Ms. Tranchemontagne wrote a letter to Mr. Archambault (Exhibit P-79), sending him the reply to his grievances and the forms for referring them to adjudication. She asked him to complete the forms and return them by May 10, 2002. She prepared the file to be referred to the PSAC's grievances and adjudication section. She sent the file, with a letter, on April 29, 2002 (Exhibit S-33). The letter refers to Mr. Archambault's complaint. After that date, Ms. Tranchemontagne simply forwarded information; she was no longer responsible for the case.

[112]   Concerning Mr. Archambault's December 14, 2001 e-mail message (Exhibit P-65), Ms. Tranchemontagne stated that she had not seen that message before the consultation. If she had seen it, she would have taken action to ensure that Mr. Archambault attended the consultation. She did not recall receiving the e-mail message (Exhibit P-65). On December 14, 2001 she was in Jonquière; she returned to the office on Saturday, December 15, 2001 and left again on the Sunday.

[113]   According to Ms. Tranchemontagne, the address of the sender of that e-mail message indicated "fj69172/@er.uqam.ca"; she could not see that the message was from Mr. Archambault unless she opened it. When she returned to work on December 17 and 18, 2001, she had a great many e-mail messages; on average, she receives 40 work-related e-mail messages per day. She also receives nuisance e-mail messages, which she deletes immediately. She has mistakenly deleted e-mail messages from complainants because she did not recognize a sender's address. Because of viruses, she had been told to delete e-mail messages that she did not recognize. She did not recall the December 14, 2001 e-mail message; normally she would have replied to it.

[114]   Under cross-examination, Ms. Tranchemontagne stated that it was not entirely accurate that on January 14, 2002 she had told Mr. Archambault that, after the fourth level of the grievance procedure, he had no further recourse concerning his grievances. She explained that, in her opinion, the grievance resulting from the September 14, 2000 letter was not arbitrable and that, concerning that matter, Mr. Archambault had no further recourse. Nor, concerning the personal harassment grievance, was there further recourse after the fourth level of the grievance procedure. At that time, the decision in Guénette and Gualtieri had not yet been handed down. Concerning the rejection on probation, for the PSSRB to have jurisdiction to hear that grievance, it was necessary to establish successfully that the rejection on probation was a dismissal in disguise. Ms. Tranchemontagne explained those points to Mr. Archambault on January 14, 2002.

[115]   Ms. Tranchemontagne was unable to say how many folders comprised Mr. Archambault's file when she received it. She recalled that the file was thick. There were three grievances; the file was therefore reorganized under each grievance, in accordance with the UTE's practice.

[116]   Ms. Tranchemontagne began to advise Mr. Brunette very early in the case, before the grievances were filed. Mr. Brunette called her.

[117]   Ms. Tranchemontagne did not recall advising Mr. Brunette to forward grievance No. 1247-461-19683 directly to the final level. She recalled that the employer had replied without consultation. Ms. Tranchemontagne consulted the PSAC about the possibility of a referral under section 99 of the PSSRA. The PSAC suggested proceeding through the four levels and seeing whether the employer would refuse consultation at every level.

[118]   Ms. Tranchemontagne explained that complainants usually attend consultations at the first and second levels of the grievance procedure. At the third level, although it is rare for complainants to attend, it does happen. At the fourth level, it is exceptional for them to attend.

[119]   In Mr. Archambault's case, the employer alleged that Mr. Archambault's grievance was inadmissible because a staffing procedure existed, and maintained that position in the final reply.

[120]   Ms. Tranchemontagne stated that no action can be taken to contest a CCRA decision not to investigate personal harassment. The complaint procedure is an internal one established by the CCRA. In a grievance involving harassment, the union has the right to consultation. Under the complaint procedure, however, the bargaining agent has no authority to force the employer to investigate, and Ms. Châtillon had refused to investigate. Ms. Tranchemontagne identified Exhibit P-98 as an excerpt from the CCRA's Policy Against Harassment in the Workplace.

[121]   Ms. Tranchemontagne confirmed that, according to the last paragraph of Exhibit P-98, filing a complaint does not preclude filing a grievance at the same time. That is why she advises anyone filing a complaint to file a harassment grievance at the same time. Doing so allows the UTE to examine the investigation and to see whether it is properly conducted and, at the grievance consultation, to criticize the investigation if it is improperly conducted, before the employer renders a final decision concerning the grievance. The employer recognized the right to file a grievance and to file a complaint as a result of union demands.

[122]   Ms. Tranchemontagne did not agree with Mr. Archambault that the union did not contest Ms. Châtillon's decision. She did not fill out a grievance on that point because she did not interpret the policy in that manner.

[123]   Under re-examination, Ms. Tranchemontagne explained that she had not been at the office when Ms. Paquette sent the letter to Mr. Archambault (Exhibit P-72) following his request for information.

[124]   Before Ms. Tranchemontagne was cross-examined, Mr. Archambault called Mr. Brunette as a witness. Mr. Brunette is a collections investigator who has been responsible for complex cases since 1989. He has worked for Revenue Canada for nearly 22 years. He has been President of UTE Local 10017 since April 2001. At the time of Mr. Archambault's grievances, Mr. Brunette was Second Vice-President of Local 10017 and looked after grievances at the first level.

[125]   Mr. Brunette took notes of each of his meetings with Mr. Archambault and transcribed his notes into an electronic document. The notes are general in nature and he did not amend them retroactively (see Exhibit S-11).

[126]   In June 2000, Mr. Brunette first met with Mr. Archambault, who complained that he had had a meeting with his team leader, who had reviewed his work and commented on some of his files. Mr. Brunette advised Mr. Archambault to take notes of the dates, times, persons present, any incidents, and any details that might be helpful.

[127]   In mid-September 2000, when he was called to a meeting by Ms. Fortier, Mr. Archambault came back to see Mr. Brunette. Mr. Archambault had started to draw up a document noting facts and situations leading up to that meeting (see Exhibit P-45); that document evolved over time. At that point, the document was only 11 pages long; it stopped in the middle of page 62. The document was reworked a number of times and contained retroactive updates that Mr. Brunette did not always receive.

[128]   Mr. Brunette accompanied Mr. Archambault to the meeting at which Mr. Archambault was given a letter notifying him that a substantial improvement in his performance was required (see Exhibit S-2). That meeting was held on Thursday, September 14, 2000. On Tuesday, September 19, 2000, Mr. Brunette received telephone messages dated September 18 from Mr. Archambault, telling Mr. Brunette that Mr. Archambault was ill and had a medical certificate valid for a two-week period.

[129]   Mr. Brunette forwarded Mr. Archambault's medical certificate to management and took action to obtain leave with pay for that period for Mr. Archambault by means of an advance on sick leave.

[130]   Mr. Archambault's case was the first rejection on probation case that Mr. Brunette had looked after. The first collective agreement with the CCRA was signed in the spring of 2000.

[131]   Mr. Brunette had many conversations with Mr. Archambault and with management. He obtained a change of team leader and technical advisor for Mr. Archambault. He also obtained authorization for Mr. Archambault to keep the same files, given the short evaluation period.

[132]   Mr. Archambault returned to work. On October 2, 2000, Mr. Brunette accompanied him to a meeting with management, first with his former team leader and second with the new co-ordinator and the new technical advisor. Management's criticisms and expectations were clearly explained to Mr. Archambault.

[133]   Mr. Archambault felt comfortable with the situation and the new team leader. Mr. Brunette told Mr. Archambault to be on guard and asked to be present at all future evaluation meetings.

[134]   Mr. Archambault met with Mr. Bourdeau and Ms. Fortier in Mr. Brunette's absence, a fact Mr. Brunette learned later.

[135]   On October 11, 2000, Mr. Brunette met with Mr. Archambault, who told him that he wished to file a grievance (Exhibit P-3); the grievance was filed on October 12, 2000.

[136]   On October 25, 2000, Mr. Brunette received a message from management that the meeting arranged with Mr. Archambault had been postponed and would be held on October 30, 2000.

[137]   On October 27, 2000, Mr. Brunette received a request for an extension of the time limit concerning grievance No. 1247-461-18773 until November 27, 2000. On Mr. Archambault's instructions, Mr. Brunette refused that request.

[138]   During an October 30, 2000 meeting, Mr. Archambault was given a letter dated October 25, 2000 notifying him that his performance was unacceptable. Ms. Fortier also gave him a letter dated October 30, 2000 notifying him that he would be rejected on probation (Exhibit S-1).

[139]   The human resources advisor told Mr. Brunette that a grievance could not be filed against a rejection on probation and that the staffing program was applicable. Mr. Brunette nevertheless filed grievance No. 1247-461-19683 (Exhibit P-5) on November 16, 2000.

[140]   On October 30, 2000, Mr. Brunette met with Mr. Archambault and helped him prepare the request for individual feedback (Exhibit S-12).

[141]   Mr. Brunette consulted Ms. Tranchemontagne by telephone and sent her a facsimile of the three letters, dated September 14 , September 25 and October 30, 2000. Ms. Tranchemontagne explained to him the problems with recourse in cases of rejection on probation when management based its position solely on performance. She also recommended that Mr. Archambault be advised to file a complaint of harassment.

[142]   On November 3, 2000, Mr. Archambault filed a complaint of harassment (Exhibit S-19). On November 16, 2000, Mr. Brunette forwarded grievance No. 1247-461-18773 (Exhibit P-3) to the second level (see Exhibit P-24) and filed grievance No. 1247-461-19682 (Exhibit P-4) and grievance No. 1247-461-19683 (Exhibit P-5) at the first level.

[143]   During November and December 2000, Mr. Brunette had numerous contacts with Mr. Archambault and management concerning Mr. Archambault's case. Those contacts were noted in Exhibit S-11, a chronological report of Mr. Archambault's case kept by Mr. Brunette.

[144]   Mr. Brunette adduced as Exhibit S-13 the November 24, 2000 letter from Ms. Fortier reporting on Mr. Archambault's individual feedback. Exhibit S-14 is a February 2, 2001 letter from Mr. Brunette to Ms. Fortier requesting information. Exhibit S-15 is Ms. Fortier's February 9, 2001 reply to Mr. Brunette, which explains the system of recourse under the staffing program and which confirms that the information would be given directly to Mr. Archambault and not to his representatives. This letter reads in part, [translation] "... Although you have authorizations, union representation is not appropriate at this point." The second-last paragraph reads, [translation] "Please note that I shall be on vacation until March 5, and I shall carefully examine the allegations when I return."

[145]   Mr. Brunette adduced as Exhibit S-16 a March 26, 2001 letter from himself to Ms. Fortier in reply to Exhibit S-15.

[146]   From January to May 2001, Mr. Brunette had numerous telephone contacts with Mr. Archambault. Mr. Brunette stated that, throughout the procedure, he constantly pressured management in order to move the case along. He adduced Exhibit S-17, a November 16, 2000 e-mail message to management refusing an extension of the time limit concerning grievance No. 1247-461-18773 (Exhibit P-3). The final reply to grievance No. 1247-461-18773 was dated April 3, 2002 (Exhibit S-18).

[147]   On December 13, 2000, Mr. Archambault filed a nine-page document (Exhibit S-20) prepared with Mr. Brunette and providing details concerning his complaint of harassment. On December 18, 2000, Ms. Châtillon rejected Mr. Archambault's complaint of harassment (Exhibit S-21). Mr. Brunette received that reply on December 28, 2000.

[148]   Mr. Brunette explained that grievance No. 1247-461-18773 (Exhibit P-3) had been filed on October 12, 2000; the reply at the first level, dated November 21, 2000 (Exhibit S-22), was forwarded to the third level on December 7, 2000 (Exhibit P-24). The employer acknowledged receipt thereof on January 4, 2001 (Exhibit S-23).

[149]   Grievance No. 1247-461-19682 (Exhibit P-4) was filed on November 16, 2000. The reply without consultation at the first level (Exhibit S-3) was received on November 27, 2000. That grievance was also forwarded to the third level (Exhibit P-24) and was noted on the same acknowledgement of receipt (Exhibit S-23).

[150]   Grievance No. 1247-461-19683 (Exhibit P-5) was filed on November 16, 2000; the reply without consultation at the first level (Exhibit S-6) was received on November 24, 2000. That grievance was also forwarded to the third level on December 7, 2000 (Exhibit P-24) and was noted on the acknowledgement of receipt (Exhibit S-23).

[151]   On October 4, 2001, Ms. Châtillon issued the reply at the third level to all three grievances (Exhibit S-4).

[152]   On December 5, 2000, Mr. Brunette met with Ms. Fortier and complained about the lack of consultation concerning the grievance.

[153]   Mr. Brunette adduced as Exhibit S-24 Local 10017's petty cash account. A March 23, 2001 entry indicates a purchase of [translation] "postage to mail parcel in reference to Pierre Archambault's grievance" in the amount of $4.43. A June 5, 2001 entry indicates [translation] "parcel with documents mailed to Pierre Archambault" in the same amount of $4.43.

[154]   Exhibit S-11 contains no entries on March 23 or June 5, 2001 explaining what documents were mailed or to whom. Mr. Brunette stated that Exhibit S-11 was accurate but not complete. Mr. Brunette stated that he had sent [translation] "a brick of a document", some 150 pages, to Mr. Archambault on March 23, 2001, and another on June 5, 2001.

[155]   Mr. Brunette stated that he had given the actual folders comprising Mr. Archambault's file, of which there were five, to Mr. Khayat at a June 2001 meeting. There had been conversations and exchanges of documents with Mr. Khayat in the meantime. On May 16, 2001, Mr. Brunette had given Mr. Khayat some copies of documents such as the grievances, transmission forms, and other important documents.

[156]   Mr. Brunette stated that it was not easy to deal with Mr. Archambault, who did not listen to advice, sent e-mail messages at all hours of the day and night and, if he did not receive a literal answer to his questions, started again at the beginning.

[157]   Under cross-examination, Mr. Brunette confirmed that he had helped Mr. Archambault prepare his documents and that Mr. Archambault had provided the content of the documents.

[158]   Mr. Brunette stated that Mr. Khayat had not told him about the reply concerning the individual feedback at the end of May 2001.

[159]   In June 2001, Mr. Brunette no longer wished to look after the case. He assisted the person responsible, as a technical support person. On December 19, 2001, he was no longer responsible for the case.

[160]   Although Mr. Bourdeau had said he did not want Mr. Brunette to attend the evaluation meetings, Mr. Brunette told Mr. Archambault, [translation] "If Antoine asks you to sign something, ask for an adjournment and come and see me."

[161]   Mr. Brunette explained that he could not provide representation at the third level of the grievance procedure. Concerning grievance No. 1247-461-19683, Mr. Archambault asked to attend the consultations at all levels of the grievance procedure.

[162]   Mr. Brunette was unable to state exactly when the possibility of a "complaint" under section 99 of the PSSRA arose. Such complaints are not filed at his level.

[163]   Mr. Brunette added that Mr. Archambault had requested a change of team; Mr. Brunette made representations to that end.

[164]   Mr. Khayat has been employed by Revenue Canada since August 1987; he began as an information officer (CR-4) and was promoted to positions as a PM-1 and a PM-2 officer in various sections of the CCRA. Since 1998 he has been freed to occupy union positions full-time, first as President of Local 10008 and then, starting in July 1999, as Regional Vice-President for western Quebec.

[165]   As Regional Vice-President, Mr. Khayat assists six UTE locals in all sorts of cases, sits on the union-management committee, and works at the Quebec Region level. He defends grievances at the third level before the Assistant Commissioner at the Regional Office in Montréal.

[166]   Mr. Khayat was involved with Mr. Archambault's case starting on May 3, 2001, when he received a call from Mr. Archambault. Mr. Khayat adduced as Exhibit S-25 a printout of the notes he entered on his computer's hard drive. He had heard of Mr. Archambault starting in 2000, when Mr. Brunette had consulted him. In January 2001, he had received a letter from the CCRA Regional Office notifying him that the grievances had been received (Exhibit S-23). In January 2001, he had contacted Mr. Brunette, and they had decided to exhaust the avenues under the staffing policy and to await the replies to the individual feedback and the review before forwarding the grievances to the third level.

[167]   Mr. Khayat explained that, under the staffing policy, an employee has seven days to request individual feedback and a review. The manager has 20 working days to reply, a time limit that can be renewed unilaterally. This procedure does not provide for union representation, but allows a union representative to be present or to accompany the employee.

[168]   Mr. Archambault requested individual feedback in November 2000 and received a reply in June 2001. In April 2001, Mr. Brunette had noted the delay concerning the individual feedback.

[169]   On May 14, 2001, Mr. Khayat had a lengthy telephone conversation with Mr. Archambault, during which he explained the two avenues and the fact that he did not yet have the file. In reply, Mr. Archambault told Mr. Khayat that Mr. Brunette had apparently lied in stating that the grievances had been forwarded to Mr. Khayat.

[170]   On May 15, 2001, the executive assistant of Ms. Bannon, the National President, contacted Mr. Khayat and told him that Mr. Archambault had called Ms. Bannon. Mr. Khayat therefore met with Mr. Brunette, and together they examined Mr. Archambault's grievances. Mr. Brunette was to complete the grievances.

[171]   Mr. Khayat called Mr. Archambault and made an appointment with him at 9:30 a.m. on May 24, 2001, at the Ste. Catherine Street office. Mr. Khayat had given Mr. Archambault the numbers of his cell phone and his 1-800 pager, as well as the number of his office voice mail. Mr. Archambault contacted Mr. Khayat at 10:00 a.m. from the union local office on René Lévesque Boulevard West. A new appointment was set for the following week, on May 31, 2001.

[172]   The May 31, 2001 meeting lasted two hours. Mr. Khayat prepared a document with Mr. Archambault and emphasized to him that documents were missing (see Exhibit P-53). Mr. Khayat advised Mr. Archambault and sent him an e-mail message (see Exhibit P-52). Mr. Khayat stated that he had never received Exhibit P-44 or the documents mentioned in it and intended as a reply to Exhibit P-52.

[173]   Mr. Khayat stated that he had never received a copy of Exhibit P-46, a May 14, 2001 letter from Mr. Archambault to Ms. Fortier with a copy to the office of the Prime Minister of Canada. On June 6, 2001, Mr. Archambault called Mr. Khayat, notifying him that he had received documents from Ms. Fortier. Mr. Archambault let it be understood that he never believed in the individual feedback and wanted his case to be referred to an independent third party. He insisted, although Mr. Khayat explained that he did not have that right. Mr. Khayat consulted Ms. Tranchemontagne, who confirmed that the CCRA policy did not provide for referral to an independent third party when individual feedback was involved.

[174]   Mr. Khayat received Exhibit P-7 and contacted Mr. Archambault in order to remind him of the importance of the review of the individual feedback and to advise him to be accompanied even if he did not have the right to be represented. He advised Mr. Archambault concerning the way to approach the review.

[175]   During a June 21, 2001 meeting with Ms. Gariépy, a staff relations officer with the CCRA, Mr. Khayat learned that Mr. Archambault had had a meeting with Mr. Martineau concerning the review of the individual feedback. Mr. Archambault had not notified Mr. Khayat of that meeting.

[176]   On June 22, 2001, Mr. Khayat sent Mr. Archambault an e-mail message (Exhibit P-9) requesting news concerning the meeting. Mr. Khayat stated that he did not receive Exhibit P-8, which was intended as a reply to Exhibit P-9. Mr. Khayat received Mr. Archambault's August 2, 2001 e-mail message (Exhibit P-10), indicating that Mr. Archambault had received the reply concerning the review at the beginning of July 2001. Mr. Khayat called Mr. Archambault a number of times in August 2001 and met with him on August 16 and 24, 2001. Mr. Khayat wrote to Mr. Archambault and received e-mail messages from him but stated that he never received the documents and information he had requested from Mr. Archambault.

[177]   Mr. Khayat stated that he never received the e-mail message adduced as Exhibit P-15; according to that document, Mr. Archambault appears to have used an e-mail message sent to Ms. Gariépy with a copy to Mr. Archambault.

[178]   In September 2001, Mr. Archambault sent e-mail messages to the entire UTE Executive. On October 1, 2001, Mr. Khayat received the e-mail message from Mr. Archambault adduced as Exhibit P-20; on October 4, 2001, he called Mr. Archambault to tell him that he did not receive an e-mail message on September 10, 2001. On October 9, 2001, Mr. Khayat received Exhibit P-21, a copy of the e-mail message adduced as Exhibit P-20.

[179]   In September and October 2001, Mr. Khayat left numerous messages with Ms. Gariépy in order to hold a hearing of the grievances at the third level. At a union-management meeting on October 4, 2001, the employer told Mr. Khayat that the employer recognized no recourse other than individual feedback in cases of rejection on probation. Mr. Khayat nevertheless asked that a hearing date be set in order to make his arguments.

[180]   On October 12, 2001, Mr. Khayat received an e-mail message from Ms. Gariépy (Exhibit P-23) in reply to an e-mail message from Mr. Archambault (Exhibit P-22), notifying him that the replies to the grievances had been mailed on October 5, 2001. Mr. Khayat did not receive a call concerning the hearing of the grievances at the third level, and the reply was issued without consultation.

[181]   On October 22, 2001, Mr. Khayat met with Mr. Archambault and had him sign the transmission form forwarding his grievances to the fourth level. Mr. Khayat asked Mr. Archambault why what Mr. Archambault wrote always differed from their discussions; Mr. Archambault did not reply.

[182]   Mr. Khayat explained to Mr. Archambault that he did not have the authority to call all the employees of an office in order to ask them questions and spend the day with them. With Mr. Archambault, he drew up a list of potential witnesses, which he sent by e-mail to Mr. Brunette in order to obtain the telephone numbers. He included that list (Exhibit S-27) and the questions (Exhibit S-26) in the file forwarded from the fourth level to Ms. Tranchemontagne.

[183]   Mr. Archambault appeared to contest the union's approach to the presentation. He was convinced that his problems stemmed from the fact that Ms. Blais did not have a diploma and that he had a bachelor's degree. He wished to establish that she was incompetent by asking his co-workers to evaluate his performance and hers. Mr. Khayat did not give Mr. Archambault the employees' personal telephone numbers because he could reach them through the general office number.

[184]   On October 26, 2001, Mr. Khayat forwarded Mr. Archambault's grievances to the final level. He received e-mail messages from Mr. Archambault. He did not receive the e-mail message adduced as Exhibit P-61; the address was incorrect. When he received the December 17, 2001 e-mail message (Exhibit P-66), he called Mr. Archambault to tell him to deal with Ms. Tranchemontagne, who now had his file.

[185]   After December 21, 2001, Mr. Khayat stopped documenting the calls he received from Mr. Archambault. In January 2002, Mr. Khayat received calls from Mr. Archambault during which Mr. Archambault raised the issue of the witnesses. Mr. Khayat referred him to Ms. Tranchemontagne.

[186]   Under cross-examination, Mr. Khayat stated that his action plan was the one he had spoken of to Mr. Archambault, whose co-operation he stated he did not obtain. The action plan was not written, but was an approach to the representation of the grievances.

[187]   Mr. Khayat stated that on at least five occasions he had set time limits for Mr. Archambault to provide certain information or documents and that Mr. Archambault did not respect those time limits. Mr. Khayat did not feel prepared to proceed without that information, which Mr. Archambault had promised to provide.

[188]   Mr. Khayat stated that Mr. Archambault never listened to the messages he left for him and did not answer his questions. Mr. Archambault never indicated that he had problems with his voice mail. Mr. Archambault had told Mr. Khayat that he was available Tuesdays and Thursdays but that his voice mail was available every day.

[189]   Mr. Khayat explained his role as a representative, stating that he was there to protect his members' interests, not only to defend a grievance. He stated that his role was not to conduct an evaluation of Mr. Archambault's performance. What Mr. Khayat wanted was evidence that the performance evaluation report written by Mr. Bourdeau contained false statements, such as the fact that Mr. Archambault took notes when it was said that he did not take notes. Despite his promises to provide evidence establishing bad faith on the part of his team leaders, Mr. Archambault did not do so.

[190]   Mr. Khayat stated that he had received no instructions from Mr. Archambault concerning the time limits for replying to grievance No. 1247-461-19683 (Exhibit P-5). Mr. Khayat stated that his computer had not broken down. Mr. Khayat reiterated that he did not receive Exhibit P-8 and that he would have responded if he had received it, even though that e-mail message did not state that Mr. Archambault had received the reply concerning the review.

[191]   Mr. Khayat stated that he was unable to refer the grievances to adjudication on August 16 and 17, 2001, because the grievances had not been heard at the third level. He could have forwarded them to the fourth level if Mr. Archambault had so requested.

[192]   Mr. Khayat stated that he did not have the impression that Mr. Archambault wanted his grievances to be resolved quickly, given his attitude and his constant forgetfulness. On August 16, 2001, Mr. Archambault brought him the letter from Ms. Paquette (Exhibit P-72), not the documents that Mr. Khayat had requested of him; they were obliged to hold another meeting on August 24, 2001, to which Mr. Archambault again neglected to bring the documents.

[193]   Mr. Khayat denied having told Mr. Archambault that he did not have the right to assistance from the union during the review. Mr. Khayat stated that, on the contrary, Mr. Archambault could be accompanied, but that he did not have the right to representation during that form of recourse. Mr. Khayat suggested that he accompany Mr. Archambault to the review; Mr. Archambault refused.

[194]   Mr. Khayat denied having told Mr. Archambault to wait until he had the actual file before meeting with him. Mr. Khayat made an appointment for May 24, 2001 and met with Mr. Archambault on May 31, 2001, before he even received Mr. Archambault's actual file.

[195]   Mr. Khayat received the June 18, 2001 letter from Ms. Fortier (Exhibit P-96) refusing to send him the documents he had requested from her and notifying him that all documents would be provided to Mr. Archambault. Mr. Khayat stated that he had received the complete files from Mr. Brunette on June 20, 2001 and that there were five folders.

[196]   Mr. Khayat did not recall receiving parcels from Mr. Brunette on March 23, 2001. He was certain that he did not receive Mr. Archambault's file in March 2001.

[197]   Mr. Khayat did not meet with Mr. Archambault before May 21, 2001, because a form of recourse had already been initiated: the individual feedback at the Montérégie Region Tax Services Office. Mr. Khayat admitted that this form of recourse had not been completed on May 31, 2001.

[198]   Mr. Khayat stated that he did not always have the time or the resources to reply in writing; that was why he called or left messages on Mr. Archambault's voice mail in reply to Mr. Archambault's e-mail messages.

[199]   Mr. Khayat reiterated that he did not receive the documents he had requested from Mr. Archambault. Mr. Khayat forwarded the grievances to the next level at the end of October 2001 because Mr. Archambault did not sign the transmission form until October 22, 2001, and because he was not available to present them to management before October 26, 2001.

[200]   Following the testimony by Mr. Brunette, Mr. Khayat and Ms. Tranchemontagne, Mr. Archambault stated that he had closed his case; the respondent did likewise.

[201]   At the respondent's request and with Mr. Archambault's agreement, the parties were to submit written arguments. I explained to Mr. Archambault that it was important for him to restate the arguments he had made at the hearing to which the respondent had objected, in order for me to take them into consideration in reaching my decision, because they did not constitute evidence.

[Translation]

Complainant's arguments

It has been established that, following the December 2001 consultation, Michelle Tranchemontagne did not intend to inform me about the situation concerning my grievances. She got rid of my contact information so she would not have to speak with me. She testified that in January 2002 she no longer had my contact information. She testified that when I called her in January 2002 she asked me for my personal contact information.

Maître Tranchemontagne testified that she did not know that I wished to attend the consultation. My December 14, 2001 e-mail message (Exhibit P-65) notified her that I wished to attend the consultation.

In her March 19, 2003 testimony, Ms. Tranchemontagne stated that she had probably erased my e-mail message, which might have contained a virus. She testified that she erased e-mail messages of which she could not identify the origin. My name and e-mail address appear on my December 14, 2001 e-mail message (Exhibit P-65). She could therefore identify my e-mail messages, because all my e-mail messages adduced in evidence indicated my name and e-mail address. In her February 2003 testimony, Ms. Tranchemontagne provided another explanation. She explained that she had not received my December 14, 2001 e-mail message (Exhibit P-65) because she had a problem with her computer. She then testified that her computer's hard drive had broken down. Her two contradictory statements have no credibility.

Under cross-examination on March 19, 2003, Ms. Tranchemontagne testified that she had not invited me to attend the consultation. Nothing in her testimony indicates that she notified me of the date of the consultation before December 21, 2001.

In February 2003, I testified that Ms. Tranchemontagne never told me about the questions and answers from the December 2001 consultation. I testified that on January 30, 2002 she told me by telephone that the questions and answers from the consultation were confidential. The union objected to the hearing of the telephone conversations I wished to have heard by the Board. In her testimony, Ms. Tranchemontagne was careful not to tell me about the questions and answers from the December 2001 consultation. She denied saying that the questions and answers from the consultation were confidential.

Ms. Tranchemontagne did not take into account my written request attached to grievance No. 1247-461-19683. That request indicated that I wished to attend the consultation. The other two attachments, to the forms concerning grievances No. 1247-461-18773 and No. 1247-461-19682, also indicated that I wished to be present at the hearings at each level. In the attachments to my grievances, Ms. Tranchemontagne had three opportunities to read the same request.

Ms. Tranchemontagne did not proceed within the prescribed time limits. She did not have my authorization to extend the time limits. I even prohibited her, in an e-mail message, from extending the time limits set out in the collective agreement and in the Staff Relations Act. She had a mysterious computer breakdown to explain why she did not receive some of my e-mail messages. She did not invite me to attend the December 2001 consultation.

I testified that Ms. Tranchemontagne made false statements by stating that I had no recourse to adjudication. She stated the opposite, and the union refused to listen to the conversation recorded in 2002.

Ms. Tranchemontagne established that she did not take action after the employer exceeded the 30-day time limit. She did not take action after the employer violated clause 18.13 of the collective agreement.

Ms. Tranchemontagne testified that she did not hang up on me. I testified that she did hang up on me. The union objected to the transcripts of the 2002 telephone conversations. The union objected to the determinative, most accurate evidence. The Board did not hear the telephone conversations that were available. The Board refused the transcriptions of the telephone conversations, even though the case law allowed me to adduce them. The case law in Mr. Rose and Treasury Board, Board Files No. 166-2-27307 and No. 166-2-27308, indicated that my evidence was admissible.

Ms. Tranchemontagne testified that she had 14 years of experience in her duties. An experienced employee should have respected the time limits for the grievances as set out in the collective agreement.

Ms. Tranchemontagne testified that she had received the ten confidential records. In my testimony, I stated that I had not received the confidential records I had requested from her. In my November 30, 2001 e-mail message to her (Exhibit P-58), I requested copies of the confidential records. This situation establishes her bad faith concerning my request. In her testimony, she provided no explanation for her refusal to send me copies of the confidential records I requested.

The documents adduced in evidence establish that, following my complaint against the union, Ms. Tranchemontagne sent me a letter (Exhibit P-58) with three earlier letters.

Ms. Tranchemontagne testified that in September 2000 she advised Denis Brunette. She testified that she no longer recalled whether she had advised Mr. Brunette to file a dismissal grievance directly at the fourth level.

Exhibit S-30, adduced before the Board, has established that Ms. Tranchemontagne was advised in a formal notice to act with diligence. That formal notice contained a request to meet with my co-workers.

It has been established that Mr. Brunette filed grievance No. 1247-461-19683 at the first level, contrary to the collective agreement. Mr. Brunette testified that he had to "get to the river before crossing it," but a number of resources were available to him. As well, he was advised by Ms. Tranchemontagne a number of times starting in September 2000.

Mr. Brunette filed grievance No. 1247-461-19682 at the first level. The reply at that level was issued by Francine Fortier, who was the subject of the complaint. Clause 19.02 (a) of the collective agreement provides that this level shall be waived if the person hearing the grievance is the subject of the complaint.

Mr. Brunette behaved improperly even though he consulted Ms. Tranchemontagne and is very familiar with the collective agreement. Mr. Brunette testified that he had been a union representative for many years. In these circumstances, his actions can be explained only as bad faith.

Mr. Brunette has established that until December 2000 he respected the time limits for the grievances. He then made an about-face concerning the time limits. In December 2000, he forwarded the grievances to the third level, even though a request for feedback had been made in October 2000 and a complaint of harassment had been filed in November 2000. He has established that in the spring of 2001 he kept the actual grievance file, thus delaying the grievance procedure.

The May 2001 letter (Exhibit P-6) requested a copy of my grievance file; this letter has established that Mr. Brunette no longer had my confidence. Mr. Brunette prepared a 23-page summary of his calls and meetings in defence of my grievances, but only one page of his arguments in my defence. It has been established that this page (Exhibit P-94) was prepared in my presence.

Mr. Brunette testified that he did not send my actual grievance file (three accordion folders) until June 2001. The evidence has established that the grievances had already been forwarded to the third level in December 2000 and that at that time Mr. Brunette did not send the actual file to the union delegate responsible for grievances at the third level. There is an obvious contradiction between Mr. Brunette's actions and his words.

The June 18, 2001 letter from Ms. Fortier (Exhibit P-96) indicates that the documents requested from the employer were sent to me directly. Mr. Brunette therefore sent me documents I did not expect to receive from Ms. Fortier. The May 2001 letter (Exhibit P-6) indicates that I had asked Mr. Brunette for a written copy of my grievance file. The petty cash receipt indicates that Mr. Brunette prepared a parcel for mailing but delayed sending it.

As well, on February 20, 2003, Mr. Brunette stated that I did not notify him of the reply concerning the feedback or of the review meeting with the Director of the Montérégie Region office. The Chairperson of the Public Service Staff Relations Board asked him if he was my representative at that time. He hesitated and grudgingly replied that he still had my case. He then testified that he was offended that I had met with the Director of the Montérégie Region office without telling him about the appointment. Maître Cabana then requested a five-minute break for Mr. Brunette to calm himself. At that point it was 4:25 p.m.

Mr. Khayat testified that he had met with me on May 31, 2001, that is, several months after the grievances had been assigned to him. He testified that he had forwarded the grievances to the fourth level, nearly 10 months after forwarding them to the third level. He did not respect clause 18.12 of the collective agreement. He has established that, against my wishes, he waited for the reply at the third level.

Mr. Khayat adduced a 13-page document (Exhibit S-25), a chronological record of the conversations held and actions taken in processing my grievances. Oddly, he did not adduce any documents indicating his arguments in my defence. He did not adduce any documents indicating case law for my grievances. On May 31, 2001, Mr. Khayat wrote a document (Exhibit P-53) indicating what documents were missing. He showed interest in missing documents without analysing the adequate information already in his possession. He testified that he had received five folders of documents. In all his documents, he did not write a single page containing arguments in my defence or any case law he had prepared himself.

Mr. Khayat testified that he had refused to tell me my co-workers' names and contact information. He testified that I wanted to meet with the witnesses and that we never met with them as I had requested. The evidence has shown that he refused to prepare questions about the incidents for my co-workers. He testified that he did not understand that I wanted my grievances to be processed quickly. My August 21, 2001 e-mail message (Exhibit P-11) clearly indicated that I wanted the case to be referred to adjudication as soon as possible. His action contrary to my request delayed my grievances without even resolving them.

Mr. Khayat referred to possible difficulties I had in following up on my grievances with him. In my September 2001 e-mail message, I noted that if he replied to me in writing it would be easier to follow up. He considered that my follow-up did not need improvement because he replied to me by telephone. He testified that he had replied by telephone to my written request.

Mr. Khayat referred to mysterious computer problems in explaining that he did not receive a number of my e-mail messages. He testified that he did not receive my e-mail messages dated June 23, 2001 (Exhibit P-8), September 10, 2001 (Exhibit P-15) and September 17, 2001 (Exhibit P-16). However, he received the rest of my e-mail messages; he did not reply to all of them.

Mr. Khayat testified that he could not meet with me before receiving the reply concerning the individual feedback. The evidence has established that, when we met on May 31, 2001, the reply concerning the individual feedback was not yet known and I had not yet received it. The June 18, 2001 letter from Ms. Fortier to Mr. Khayat (Exhibit P-96) indicates that the missing documents requested from the employer had been sent to me directly.

On March 19, 2003, Mr. Khayat testified that I had discussed penalties and interest with him. He confirmed that it was indeed his handwriting on page two of the performance evaluation report adduced in evidence (Exhibit P-97). That page includes comments on my performance concerning penalties and interest. Mr. Khayat testified that he did not check the directive on penalties and interest as I had asked him to do. His testimony did not establish his knowledge of the directive on penalties and interest.

Conclusion

The evidence has established beyond all doubt that the union representatives concerned acted in bad faith and that the complaint under section 23 of the Public Service Staff Relations Act is justified.

It has been clearly established that Ms. Tranchemontagne refused to have me attend the December 21, 2001 consultation.

The union did not respect clauses 18.12 and 18.19 of the collective agreement. The union took no action to ensure that clause 18.13 of the collective convention was respected.

The union representatives showed no remorse for their dishonest actions. They acted deliberately. Exemplary damages are therefore appropriate.

It has been established that the experienced union representatives consulted each other and had all the resources they needed to be familiar with the dismissal grievance procedure. The union did not respect clause 18.19 of the collective agreement, which provides that a dismissal grievance shall be filed at the final level of the grievance procedure.

The January 4, 2001 letter (Exhibit S-23) clearly indicates that the case was at the third level and that the time limits for processing it were exceeded. It has been established that on October 26, 2001, when the grievances were forwarded to the fourth level, the time limit set out in clause 18.12 of the collective agreement was not respected.

It has been established that, after I filed my complaint of misleading representation against the union with the Public Service Staff Relations Board, that same union asked whether I wanted it to represent me. The union has established a lack of discernment and judgment toward me.

Yours truly,

[Translation]

Respondent's arguments

1. The issue to be determined by the Board is whether the union violated the provisions of subsection 10(2) of the Public Service Staff Relations Act in its representation of Pierre Archambault's grievances. The Board must determine whether the union acted in a manner that was arbitrary, discriminatory or in bad faith in processing Mr. Archambault's grievances. The Board must also rule on Mr. Archambault's allegation of gross negligence.

2. The Public Service Alliance of Canada (PSAC), the Union of Taxation Employees (UTE), and its representatives argue that Mr. Archambault, the complainant, has failed to discharge the burden of proof on him.

3. The union argues that we did not violate the provisions of subsection 10 (2) of the Public Service Staff Relations Act or show gross negligence in processing Mr. Archambault's grievances.

4. Subsection 10 (2) of the Public Service Staff Relations Act provides that no employee organization that is the bargaining agent of a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit. Mr. Archambault has alleged that his union representatives acted in a manner that was arbitrary, discriminatory and in bad faith. He has also alleged that his representatives showed gross negligence in processing his grievances.

5. The evidence has clearly established that neither Denis Brunette, Sabri Khayat, nor Michelle Tranchemontagne acted in a manner that was arbitrary, discriminatory or in bad faith in processing Mr. Archambault's grievances. The same evidence has also established that the representatives did not show gross negligence in processing Mr. Archambault's grievances.

6. Mr. Brunette's testimony has established that he made every effort to ensure that Archambault's grievances would be heard as soon as possible. The evidence has established that the grievances were forwarded within the time limits set out in the collective agreement (Exhibit P-24). Mr. Brunette never granted the employer an extension of the time limits concerning Mr. Archambault's grievances. The evidence has established the opposite, in an e-mail message from Mr. Brunette to Martine Proulx refusing the employer's request for an extension of the time limits (Exhibit S-17). We respectfully submit to you that Mr. Brunette acted with diligence in processing Mr. Archambault's grievances at the first and second levels of the grievance procedure. You will recall that, in his testimony, Mr. Brunette summarized the situation by stating that throughout the procedure he acted in good faith and to the best of his knowledge, despite the fact that Mr. Archambault's case was not an easy one. Mr. Brunette also pointed out that it was a regular occurrence for Mr. Archambault not to listen to his advice. As well, when Mr. Brunette gave Mr. Archambault answers that were not what Mr. Archambault wanted to hear word for word, he was obliged to start again at the beginning.

7. Mr. Brunette further stated that, despite all the difficulties, he continued to take Mr. Archambault's side with the employer, continued to act in Mr. Archambault's defence and, from beginning to end, believed in Mr. Archambault's case.

8. Mr. Khayat's testimony has established beyond any doubt that the delays in processing Mr. Archambault's grievances were caused by the complainant himself, by refusing to provide the necessary information Mr. Khayat required. Exhibit S-25, as well as Mr. Khayat's testimony, have established that Mr. Archambault was negligent in failing to provide Mr. Khayat, his representative, with the evidence needed to prepare the arguments to be presented at the third level of the grievance procedure. You will recall that, in his testimony, Mr. Khayat stated a number of times that the information he had requested from Mr. Archambault in order to establish that the rejection on probation was unfounded was never provided to him. As an example, Mr. Khayat pointed out that, in order to establish whether the performance evaluation report written by Antoine Bourdeau was made in bad faith and whether that document (Exhibit P-92) was an outright lie, he needed evidence. Mr. Khayat testified that he asked Mr. Archambault whether he had taken notes at work and whether he had met with the technical advisors and that Mr. Archambault had replied in the affirmative. Mr. Khayat asked Mr. Archambault whether he could establish those two facts and Mr. Archambault again replied in the affirmative. Mr. Khayat asked Mr. Archambault to bring him this evidence, which could have been used to establish that the performance evaluation report on which the rejection on probation was based contained false statements. Despite repeated requests by Mr. Khayat, Mr. Archambault never provided this evidence, which was necessary for his union representative to refute the manager's allegation that Mr. Archambault never took notes or consulted the technical advisors.

9. It should also be noted that some of the delays were caused by the fact that another form of recourse had already been initiated: the individual feedback. Mr. Khayat testified that, if the manager had changed his decision following the individual feedback session, Mr. Archambault could have been reinstated in his position. On the basis of the explanations provided to Mr. Archambault, and because Mr. Archambault never provided the evidence he requested, Mr. Khayat therefore decided to await the outcome of that form of recourse.

10. Mr. Khayat acted to the best of his knowledge and always in good faith in Mr. Archambault's case.

11. The evidence has established that Mr. Archambault was a difficult client who did not listen to what his representatives told him and never took their advice.

12. As well, despite the fact that Mr. Khayat had told Mr. Archambault that his case could be forwarded to the fourth level, Mr. Archambault never gave Mr. Khayat instructions to forward his case to the fourth level; he always referred to the fact that he wanted his case to be referred to adjudication as soon as possible. The evidence has established that Mr. Archambault was always informed of the status of his grievance and the level it had reached. Mr. Archambault signed all the transmission forms at each level (Exhibit P-24).

13. The fact that Mr. Archambault's grievance was not forwarded to the final level of the grievance procedure can be explained by the fact that the termination of his employment was not a dismissal within the meaning of clause 18.19 of the collective agreement. What was involved here was a rejection on probation, not a dismissal under paragraph 51(1)( f) or (g) of the Canada Customs and Revenue Agency Act.

14. Mr. Khayat also testified that, throughout the period from January to October 2001, he never delayed Mr. Archambault's case. Indeed, Mr. Khayat implored Mr. Archambault to provide him with the evidence that could refute the allegations contained in the performance evaluation report that formed the basis for the rejection on probation; Mr. Archambault never provided that evidence.

15. Mr. Khayat acted with diligence in Mr. Archambault's grievances. He gave Mr. Archambault his assessment of Mr. Archambault's rejection on probation case. He also explained what he needed to establish in order to provide the best possible defence in Mr. Archambault's case. Despite Mr. Khayat's repeated requests, Mr. Archambault never provided the evidence required to establish bad faith by the employer, or the alleged disciplinary nature of the case, so that an adjudicator would have jurisdiction to hear the case once it reached adjudication.

16. Mr. Khayat therefore did not act in a manner that was arbitrary, discriminatory or in bad faith in processing Mr. Archambault's grievances. We submit to you that it would have been in Mr. Archambault's interest to have shown greater diligence in dealing with his representatives' requests. Mr. Archambault showed negligence in failing to provide the evidence required for his representatives to process his grievances.

17. Ms. Tranchemontagne processed Mr. Archambault's case as quickly as possible given her busy schedule and her absences from the office. As she testified, Ms. Tranchemontagne gave Mr. Archambault's case priority.

18. Moreover, Ms. Tranchemontagne regularly followed up after the grievance hearing at the final level, as has been established by her letters to the employer requesting a reply to Mr. Archambault's grievances (Exhibit S-8, Exhibit S-9 and Exhibit S-10). As well, Ms. Tranchemontagne testified that the next stage would have been to send the employer a final notice, giving a final time limit and informing the employer that, if no reply was forthcoming, she would have no choice but to ask the PSAC to refer Mr. Archambault's grievances to adjudication without the reply at the final level.

19. Ms. Tranchemontagne testified that she had not seen Mr. Archambault's December 14, 2001 e-mail message (Exhibit P-65) before she attended the hearing at the final level. She also stated that, if she had seen it, she would have taken the necessary action to allow Mr. Archambault to attend the hearing. She also testified that complainants did not automatically attend hearings at the final level, but that she would have initiated action with her superiors in order to allow Mr. Archambault to attend. Unfortunately, she was unable to do so. Nevertheless, she did not act in a manner that was arbitrary, discriminatory or in bad faith. She gave priority to processing Monsieur Archambault's grievances, with diligence and in a manner that would maximize his chances of having his case referred to adjudication.

20. We also wish to address Mr. Archambault's allegations that his representatives refused to meet with the witnesses on the list he had provided. The evidence has established that what Mr. Archambault wanted was that his representatives should ask the witnesses, his co-workers, to evaluate his performance at work. The evidence has established that his representatives did not do so because Mr. Archambault's co-workers were unable to evaluate his performance and that it was not their role to do so. Ms. Tranchemontagne also testified that when the grievances were sent to the PSAC's representation section for assessment, the evidence and the need to meet with or to call the witnesses were evaluated. She further testified that at hearings at the final level of the grievance procedure it was not customary to call witnesses, something that was usually done at adjudication.

21. Ms. Tranchemontagne acted with diligence and as quickly as possible in processing Mr. Archambault's grievances, followed up closely on them, and submitted the arguments she considered necessary and relevant at the hearing at the final level of the grievance procedure. She never granted an extension of the time limit to the employer, and indeed insisted that the grievances be heard quickly and that a reply be issued as soon as possible.

22. In reply to Mr. Archambault's conclusion, we point out that he has made allegations that have no basis in evidence, and specifically that he has accused his representatives of showing no remorse, acting dishonestly, and acting deliberately. Mr. Archambault has adduced no evidence that could support his allegations, which in our opinion are malicious, vexatious and unfounded.

23. To conclude concerning the rest of the evidence adduced, which is voluminous, we shall give you the leisure of assessing it and reaching the appropriate conclusions yourself.

24. Finally, we have come to the corrective action claimed by Mr. Archambault in the order requested in his March 11, 2002 complaint.

25. We wish to comment on the latter, and in doing so we shall take each of the points he raises one by one, as follows.

    "Given the collusion and the repeated, deliberate behaviour by the union representatives, exemplary damages are called for."

    Mr. Archambault has adduced no evidence of collusion or deliberate behaviour by his union representatives. His representatives did everything in their power to provide him with the best representation available, despite him.

    "Compensation in an amount equivalent to four years' wages is reasonable in light of the loss of my employment and the loss of my layoff right..."

    Mr. Archambault has adduced no evidence of harm. Furthermore, the Board has reached a decision in his rejection on probation case, and has found against him. The adjudicator has found that Mr. Archambault did not establish that the criticisms made were the actual reasons for his rejection.

    In the decision in

    Pierre Archambault v. Canada Customs and Revenue Agency (166-34-31253), Adjudicator Guindon points out at paragraph 71, "It is my view that the grievor did not discharge the burden of proof and did not satisfy me that the real reason for his rejection was other than bona fide dissatisfaction as to his ability to meet the requirements of the job."

    We therefore submit that no compensation is called for in this case and that the union representatives did not act so as to cause harm to Mr. Archambault.

    "The order must take into account the harm to my reputation and my difficulty finding new employment."

    We submit to the Board that the union representatives have nothing to do with Mr. Archambault's alleged reputation and never acted so as to cause harm to that alleged reputation.

    "The stress, anguish, worry, insomnia and psychological problems I have suffered must be taken into consideration. In this regard, an amount of $10,000 is reasonable for the loss of my quality of life and my difficulties taking care of my daughter. I had to cancel a number of social and sports activities because of my depression."

    We submit to you that, if this is the case, Mr. Archambault has adduced no medical evidence of any kind in support of his claims.

26. In conclusion, we respectfully submit that you must dismiss Mr. Archambault's complaint and issue an order confirming that his union representatives acted in good faith and in an objective and non-discriminatory manner. As well, we ask you to find that the union representatives did not show gross negligence in this case, but acted to the best of their knowledge, with diligence, and in a responsible manner.

---

Submitted by Francine Cabana, Grievances and Adjudication Officer, PSAC

[Translation]

Complainant's arguments in rebuttal

It has been established that Michelle Tranchemontagne did not want me to attend the December 21, 2001 consultation. As well, in February 2003, Maître Cabana made a motion for recusal in order to have the Chairperson of the Board withdraw from the case.

In my opinion, Ms. Cabana attributed intentions of partiality even before the Chairperson could fully consider the case assigned to her. I do not believe there was a need to put the Chairperson's intentions on trial.

Ms. Cabana's actions raised a great many questions. The union repeatedly delayed the dates of the hearings in order to abort the procedure. Such insidious manoeuvrings are not new in legal circles.

Sabri Khayat also showed himself to be very difficult. It has been established that he made requests to obtain documents that were not necessary. It has been established that his abusive preparation did not serve the rejected employee's interests. No hearing was held at the third level. At the final level, the employee was excluded from the consultation. Mr. Khayat has not adduced evidence that his documents were used during the consultation. The union took action to ensure that I did not attend that consultation.

The union has alleged that when the reply was not literally what I wanted to hear, it was necessary to start again at the beginning. Denis Brunette's allegations have also suggested that I did not listen to his advice. Those allegations are unfounded because I took a great many notes and allowed the representatives a great deal of time in my various grievances. I testified that in August 2001 I brought Mr. Khayat documents that I did not consider essential.

Mr. Khayat did not provide any reason explaining why he did not meet with me before May 31, 2001. In bad faith, Mr. Khayat exceeded the time limits in processing my grievances. Paragraph 9 of the union's arguments notes that Mr. Khayat awaited the outcome of the individual feedback. It has been established that on May 31, 2001, Mr. Khayat and I did not yet know the outcome of the individual feedback. Mr. Khayat was therefore not awaiting Francine Fortier's reply in order to meet with me.

Paragraph 12 of the union's arguments states that I did not give instructions to forward my grievances to the fourth level, and also that I wanted my case to be referred to adjudication as soon as possible. Those statements indicate that Mr. Khayat was not familiar with the grievance procedure and did not know what to do in order to have my case referred to adjudication. That is a very low level of knowledge for an experienced union representative.

Mr. Khayat testified that he refused to meet with the witnesses. In my testimony, I stated that I had told Mr. Brunette and Mr. Khayat about Suzanne Blais' disdainful behaviour toward me. I testified that on November 3, 2000, at the Zellers restaurant, I had even discussed Ms. Blais' disdainful behaviour with Mr. Brunette. The documents I adduced in evidence and distributed to the union representatives provide a detailed description of Ms. Blais' disdainful behaviour toward me.

The union's arguments refer to the decision by Adjudicator Guindon in my complaint against the employer. There is no need to report those new facts at this stage of the arguments, because they were not adduced in evidence on a timely basis. As well, the decision by Adjudicator Guindon is being appealed. Grounds of fraud and falsification of the performance evaluation report, establishing the employer's bad faith, have been cited in seeking an appeal to the Federal Court.

In closing, I would like to note that when three persons take part in a collusion, they leave three times as many traces as a single person. It is therefore not by chance that none of the union representatives met with a single witness to the harassment to which I was subjected. It is not by chance that a number of e-mail messages went unanswered, or that the time limits for the grievances were exceeded. It is not by chance that the union refused to listen to the telephone conversations or to read the transcripts. It is not by chance that the ten records obtained by the union under the Privacy Act were not sent to me, as I stated in my testimony.

Yours truly,

Reasons for decision

[202]   Subsection 10(2) of the Public Service Staff Relations Act reads as follows:

(2) No employee organization, or officer or representative of an employee organization, that is the bargaining agent for a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit.

[203]   The reasons for the decision in Jacques (Board File No. 161-2-731) contain the following paragraphs:

In Canada, our Supreme Court in fact resolved this debate in the

Gendron case (supra), when it stated that a union may choose to defend one set of interests to the detriment of another. Subsection 10(2) of the Act thus creates no absolute obligation for the employee organization to represent a member during the grievance procedure or even in referral to adjudication before the Board.

An employee organization must consider the interests of all its members. When these interests are divergent, it may and must make often difficult choices on the representation it provides for an individual.

The discretion it enjoys in this area occasionally, under the very terms of subsection 10(2), may not be tainted by arbitrary, discriminatory actions, or bad faith.

This means that the decisions of an employee organization in a case such as this must be made in compliance with the established rules, after study and analysis of the case and the case law. Nor may decisions be motivated by inappropriate discrimination based on factors such as race, gender, or political or religious beliefs. Finally, decisions of the employee organization may not seek to harm or assail a member, failing which they will be deemed to have been made in bad faith.

[204]   My role in this case is not to rule on the merits of Mr. Archambault's grievances. My role is to consider the action taken by the bargaining agent in response to Mr. Archambault's requests, in light of the principles set out above.

[205]   There are contradictions in the evidence, but those contradictions have to do with minor points. On the major points the evidence agrees. Those points can be summarized in the following facts. Mr. Archambault was hired for a determinate period. During his probation, he encountered difficulties with his superiors and requested the assistance of his union representatives. Mr. Brunette met with Mr. Archambault and advised him. Despite that assistance, Mr. Archambault was rejected on probation. After consultation with the UTE's legal advisor, Mr. Brunette advised Mr. Archambault to submit a request for individual feedback, to file a grievance against the termination of employment, and to file a complaint of harassment as well as a harassment grievance all at the same time.

[206]   Clause 18 of the collective agreement applicable to Mr. Archambault sets out the grievance procedure, and reads in part as follows:

18.03 Except as otherwise provided in this Agreement, a grievance shall be processed by recourse to the following levels:

(a) level 1 - first (1st) level of management;

(b) levels 2 and 3 - intermediate level(s) where such level or levels are established in departments or agencies;

(c) final level - Deputy Head or Deputy Head's authorized

representative.

Whenever there are four (4) levels in the grievance procedure, the grievor may elect to waive either Level 2 or 3.

[...]

18.05 An employee who wishes to present a grievance at a prescribed level in the grievance procedure shall transmit this grievance to his or her immediate supervisor or local officer-in-charge who shall forthwith:

(a) forward the grievance to the representative of the Employer authorized to deal with grievances at the appropriate level,

and

(b) provide the employee with a receipt stating the date on which the grievance was received by him or her.

[...]

18.08 An employee may be assisted and/or represented by the Alliance when presenting a grievance at any level.

18.09 The Alliance shall have the right to consult with the Employer with respect to a grievance at each level of the grievance procedure. Where consultation is with the deputy head, the deputy head shall render the decision.

[...]

18.11 The Employer shall normally reply to an employee's grievance, at any level in the grievance procedure, except the final level, within ten (10) days after the date the grievance is presented at that level. Where such decision or settlement is not satisfactory to the employee, he or she may submit a grievance at the next higher level in the grievance procedure within ten (10) days after that decision or settlement has been conveyed to him or her in writing.

18.12 If the Employer does not reply within fifteen (15) days from the date that a grievance is presented at any level, except the final level, the employee may, within the next ten (10) days, submit the grievance at the next higher level of the grievance procedure.

18.13 The Employer shall normally reply to an employee's grievance at the final level of the grievance procedure within thirty (30) days after the grievance is presented at that level.

[...]

18.15 The decision given by the Employer at the Final Level in the grievance procedure shall be final and binding upon the employee unless the grievance is a class of grievance that may be referred to adjudication.

18.16 In determining the time within which any action is to be taken as prescribed in this procedure, Saturdays, Sundays and designated paid holidays shall be excluded.

18.17 The time limits stipulated in this procedure may be extended by mutual agreement between the Employer and the employee and, where appropriate, the Alliance representative.

18.18 Where it appears that the nature of the grievance is such that a decision cannot be given below a particular level of authority, any or all the levels, except the final level may be eliminated by agreement of the Employer and the employee, and, where applicable, the Alliance.

18.19 Where the Employer demotes or terminates an employee for cause pursuant to paragraph 51(1)(f) or (g) of the Canada Customs and Revenue Agency Act, the grievance procedure set forth in this Agreement shall apply except that the grievance shall be presented at the final level only.

[...]

18.23 Where an employee has presented a grievance up to and including the Final Level in the grievance procedure with respect to:

(a) the interpretation or application in respect of him or her of a provision of this Agreement or a related arbitral award,

or

(b) disciplinary action resulting in termination of employment pursuant to paragraph 51(1)(f) or (g) of the Canada Customs and Revenue Agency Act, suspension or a financial penalty,

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 Public Service Staff Relations Act and Regulations.

[207]   Paragraphs 51(1)(f) and (g) of the Canada Customs and Revenue Agency Act provide as follows:

51. (1) Notwithstanding subsections 11(2) and (3) and section 12 of the Financial Administration Act, the Agency may, in the exercise of its responsibilities in relation to personnel management,

[...]

(f) establish standards of discipline for its employees and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct and the circumstances and manner in which and the authority by which or by whom those penalties may be applied or may be varied or rescinded in whole or in part;

(g) provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed by the Agency and establish the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;

[...]

[208]   Mr. Brunette acknowledged that he had filed Mr. Archambault's grievance against the termination of employment, grievance No. 1249-461-19683, at the first level of the grievance procedure on November 16, 2000, and had forwarded it to the third level on December 7, 2000 following the negative reply at the first level, in which the employer stated that the grievance was inadmissible. The employer acknowledged receipt of the grievance at the third level on January 4, 2001 (Exhibit S-23).

[209]   Mr. Brunette forwarded Mr. Archambault's file to Mr. Khayat, the person responsible at the third level, at the beginning of June 2001. Mr. Khayat met with Mr. Archambault on May 31, 2001, following a May 15, 2001 complaint by Mr. Archambault to the President of the UTE.

[210]   Mr. Khayat requested the consultation at the third level on August 24, 2001, first because he was awaiting the reply concerning the individual feedback, and then because he was awaiting the "evidence" that Mr. Archambault was to provide to him. The employer replied at the third level without consultation, and the grievance was forwarded to the final level on October 26, 2001. That said, the file was forwarded to Ms. Tranchemontagne, the person responsible at the final level, on November 13, 2001; she read it on November 26 or 27, 2001. Ms. Tranchemontagne obtained a consultation meeting with the employer on December 21, 2001.

[211]   Mr. Archambault did not attend the December 21, 2001 consultation. Ms. Tranchemontagne stated that she did not receive Mr. Archambault's e-mail message requesting that he attend. She did not appear to consider the corrective action requested (Exhibit P-5): [translation] "I also ask to be present at the hearings at each level of the grievance procedure" as a request to attend at the final level. According to established practice, complainants attend consultations at the first and second levels, rarely at the third level, and only exceptionally at the final level. According to Ms. Tranchemontagne's testimony, Mr. Archambault's absence at the final level was inadvertent. According to Mr. Archambault's testimony, it was deliberate, and Ms. Tranchemontagne had told him that the questions and answers from the consultation were confidential. Ms. Tranchemontagne has denied that allegation.

[212]   Even if I adopted Mr. Archambault's position as declared, I cannot find that this action by Ms. Tranchemontagne in itself constitutes bad faith within the meaning of subsection 10(2) of the Act.

[213]   The evidence has revealed a number of errors and unexplained delays in Mr. Archambault's case.

[214]   Those errors and delays further undermined the confidence of Mr. Archambault, who made numerous complaints at all political levels of the union and the public service.

[215]   The union's main error was not informing Mr. Archambault clearly and unequivocally, at the outset and in writing, of the uncertainty of the forms of recourse available to him and of what action needed to be taken. Although the union structure may appear clear and orderly to insiders, it is highly complex and not at all obvious to a newly hired term employee. This structural complexity contributed to Mr. Archambault's lack of understanding and to the inefficiency of the grievance procedure set out in the collective agreement.

[216]   Mr. Archambault's grievances were not forwarded from the second to the third level clearly or quickly. Between the third and the fourth level, one month was wasted with no explanation. In this procedure, there does not seem to be an automatic practice of forwarding the actual file from one level to another. Communication with the complainant, telling him where and with whom to discuss his case, was lacking. Mr. Archambault was the subject of a game of ping pong between Mr. Brunette and Mr. Khayat. It took action by the President of the UTE for Mr. Khayat to meet with Mr. Archambault. It would have been preferable if the persons dealing with Mr. Archambault had been identified clearly and unequivocally at the outset. The harm suffered by Mr. Archambault as a result of this error was the loss of confidence in his representatives.

[217]   Although Mr. Archambault's grievance refers to a termination of employment, it was not filed directly at the final level. Dismissal, whether under paragraph 51(1)(f) or paragraph 51(1)(g), is provided for in clause 18.19 of the collective agreement. Mr. Brunette, who filed Mr. Archambault's grievances, has acknowledged his lack of experience with cases involving rejection on probation; this was the first time he had dealt with this type of problem.

[218]   The employer refused consultation with the bargaining agent during the grievance procedure. The employer refused union representation during the individual feedback procedure under the staffing policy. For a completely incomprehensible reason, and since the employer did not adduce its grounds in evidence, the time limits for replying to both the grievances and the complaints were abusive. The bargaining agent reacted only very weakly to this abuse. It sent a few letters here and there, urging the employer to reply to Mr. Archambault, but the possibility of a referral under section 99 was set aside without any real explanation. There was little protest against the fact that Ms. Fortier, who had a time limit of 20 working days (which, granted, was renewable) to provide the individual feedback requested in November 2000, stated on February 9, 2001 that she would reply when she returned from vacation, one month later. She replied on May 31, 2001.

[219]   It is not surprising that Mr. Archambault eventually believed in some kind of collusion between the union and the employer.

[220]   It is understandable that the union representatives, who saw that it was nearly impossible to bring Mr. Archambault's case before a neutral, impartial third party, hesitated to bother persons with discretionary authority about Mr. Archambault's fate. In not bothering the decision-makers, however, they were no more successful in attracting those persons' good graces, and merely prolonged Mr. Archambault's suffering.

[221]   This type of case is very similar to removing an adhesive bandage. Some people believe it is better to proceed gently, centimetre by centimetre, while others prefer to do it all at once: it hurts more, but it does not last as long. With hindsight, each method can be seen to have its share of advantages and disadvantages.

[222]   In Mr. Archambault's case, the slow method resulted in two and a half years elapsing before the case reached an adjudicator. The fast method, which would have pressured the employer to respect the time limits, might have saved Mr. Archambault a year in reaching the same outcome.

[223]   In a complaint of violation of subsection 10(2), the Board must asses whether the bargaining agent failed in its duty of representation: if it acted in a manner that is arbitrary, discriminatory or in bad faith, or showed gross negligence.

[224]   By far most of Mr. Archambault's criticisms are the result of a different view of the merits of the case and of the representation strategy. The bargaining agent has a great deal of latitude in representing its members. Members may not dictate what strategy is to be followed. It is important for the representatives to know all the facts. In this case, according to the evidence adduced by Mr. Archambault, it is clear that the respondent had in its possession all the information required for its representation.

[225]   In using the information provided, Mr. Archambault's representatives showed some tardiness at the third and the last levels of Mr. Archambault's grievance procedure, but not gross negligence equivalent to bad faith or arbitrary behaviour. In this case, there is no evidence that the delays had an effect on the outcome.

[226]   The only harm that Mr. Archambault has been able to establish before me is the fact that he is still involved in the debate concerning the validity of his case. There is no indication that, if the time limits had been respected and if he had attended the grievance consultation, he would not have reached the same point: a judicial review of an unfavourable decision by an adjudicator.

[227]   There is no evidence that the respondent sought to harm or to attack Mr. Archambault. On the contrary, the representatives and particularly Mr. Brunette expended a great deal of energy on a case they considered problematic.

[228]   For all these reasons, Mr. Archambault's complaint is dismissed.

Evelyne Henry,
Deputy Chairperson

OTTAWA, July 4, 2003.

P.S.S.R.B. Translation