FPSLREB Decisions

[1]   On September 16, 2002, Donald Vogan complained that the Union of National Defence Employees (UNDE) failed in its duty of fair representation under section 23 of the Public Service Staff Relations Act (PSSRA) and subsection 10(2) of the PSSRA. In a letter attached to this correspondence, Mr. Vogan explains the reason of his complaint. He had filed a grievance, as he was unsuccessful in a competition for a position in Kingston, Ontario. He had informed the local union that he wanted to be present at the third level of the grievance process in Ottawa, as it was a complicated case, and that he had more details at home. He complains that he was not informed or contacted by the UNDE when his grievance proceeded to the third level. He also feels that the UNDE representative mishandled his grievance at the third level.

[2]   On October 16, 2002, the Public Service Alliance of Canada (PSAC) wrote to the Board regarding this complaint. The PSAC indicated that it was presenting a reply to the complainant on behalf of the respondent (UNDE), which is a component of the Public Service Alliance of Canada. It explained that at no time was the UNDE notified by Mr. Vogan that he had retained relevant details at his home on his grievance or that the officer assigned to the case should contact him to discuss further details not included in his file. The PSAC stated that the UNDE provided full representation for Mr. Vogan's grievance at the third and final levels and, accordingly, fulfilled its obligation of fair representation.

[3]   On December 2, 2002, Denise Wilson, a part-time member of the Board, conducted a mediation of this complaint as both parties had agreed to mediation. Mr. Vogan and Mr. Done for the PSAC, attended the mediation. In her report, Ms. Wilson indicated that a settlement had resulted from the mediation but she gave no further details, as established by the Board's policy on the confidentiality of the mediation process.

[4]   On December 4, 2002, the Board wrote to Messrs. Vogan and Done advising them that Ms. Wilson had informed the Board that the parties had reached a settlement in this complaint. The Board also indicated that it was Mr. Vogan's responsibility to inform the Board when the terms of the settlement were finalized and to withdraw the complaint at that time.

[5]   On June 6, 2003, the Board wrote to Mr. Vogan informing him that a period of six months had elapsed since the mediation session of December 2, 2002, and the Board required an update on the status of this matter.

[6]   On June 10, 2003, Mr. Vogan replied to the Board, indicating that he was not satisfied with the end result of the mediation. Attached to his letter was a copy of correspondence that he had sent to Raven and Associates, dated April 29, 2003, as part of the mediation agreement with the PSAC signed on December 2, 2002.

[7]   The Board wrote back to Mr. Vogan on September 11, 2003, indicating that since he wished to pursue the matter, it would be scheduled for a hearing. On September 26, 2003, the Board wrote to both parties, indicating that the purpose of the hearing would be to determine whether the parties had reached a valid settlement agreement. The Board's jurisdiction to continue with the complaint would also be determined.

Evidence

[8]   Mr. Vogan explained that he had been screened out of an open competition as a Brick and Stone Mason for the Department of National Defence (DND), in Kingston, Ontario. He explained that he was screened out for failing to meet the basic experience requirements as a mason. Mr. Vogan argued that the Department should have known that he met the experience requirements, as he has held similar positions at the DND in the past. As this was an open competition, there was no right of appeal but the matter was referred to the investigation branch of the Public Service Commission (PSC). Mr. Vogan also filed two grievances, one of which was for being screened out of a local competition in Kingston, Ontario, as he was working at the Canadian Forces Base (CFB) in Borden, Ontario, at the time.

[9] The investigator of the PSC concluded that the employer had acted reasonably in screening out Mr. Vogan for his lack of experience. The investigator also noted that the screening board had given Mr. Vogan an additional opportunity to demonstrate that he had the required experience. However, Mr. Vogan did not respond to this request. Mr. Vogan applied for judicial review of the investigator's decision with the Federal Court.

[10] Mr. Vogan then testified as to what had happened during the December 2, 2003 mediation. Mr. Done pointed out that Mr. Vogan had signed an agreement to mediate that provided for confidentiality of the discussions during mediation. As well, the settlement agreement (Exhibit 1) provided for the confidentiality of the terms of settlement. Nevertheless, the PSAC agrees that some information has to be released in this decision in order for this issue to be resolved. I assured Mr. Done that, as I had indicated in Carignan v. The Treasury Board (Veterans Affairs Canada), 2003 PSSRB 58, I would release only the necessary information in order to maintain, as much as possible, the confidentiality of the mediation and the settlement agreement.

[11] This being said, the following two clauses of the settlement agreement have to be released, as they are essential to this decision. These clauses read as follow:

. . .

3. Donald Vogan, by his signature below, withdraws the complaint;

4. The P.S.A.C. agrees that the Legal Officer assigned to the Collective Bargaining Branch will review documents provided by Donald Vogan to determine whether the P.S.A.C. can support a Judicial Review of a decision by the Public Service Commission Investigations Branch dated May 30, 2002, number 02-DND-0008 (Monica Sells). It is further agreed that prior to deciding whether the P.S.A.C. will support a request for judicial review, the Legal Officer assigned will discuss the matter with Mr. Vogan and consider the merits of his comments. Rationale explaining the basis for the decision of the Alliance to pursue or not to pursue this matter will be given to Mr. Vogan.

. . .

[12] Mr. Vogan indicated that it was important for him to have a speedy review of his case by the PSAC, as he had to file a requisition for a hearing on January 2, 2004, on his application for judicial review.

[13] Mr. Vogan explained that, in referring to clause 4 of the settlement agreement, the parties had agreed at the mediation that the legal officer reviewing his file would be Andrew Raven and before any decision would be made, Mr. Vogan would be able to have a face-to-face meeting with Mr. Raven.

[14] After reviewing the file, Mr. Done wrote to the coordinator of the representation section of the PSAC on December 18, 2002:

As per the Terms of Settlement, would you please have Jacquie de Aguayo review the attached documents to determine whether the Alliance can support a Judicial Review of a Public Service Commission investigator's decision at (Tab E). The file was returned to the section on December 7^th, 2002.

Don Vogan has already applied (see Tab "0") to the Federal Court and wants us to represent him. My only commitment (see settlement attached) was to review his documents and determine whether we would represent him. Regrettably, Don had a long and deep-seated mistrust of his Component and so, the union generally, therefore, if possible (I know it is one week before Christmas) could we give him an answer on whether we will represent quickly?

. . .

[15] Mr. Done explained that Ms. de Aguayo is the legal officer assigned to the Collective Bargaining Branch. According to the settlement agreement, she would be the intermediary who would discuss with Mr. Vogan whether the PSAC would support a request for judicial review.

[16] Mr. Vogan testified that on January 14, 17, and 28 and March 13, 2003, he telephoned and left messages for Ms. de Aguayo. As he received no reply, he faxed a letter to her on March 20, 2003.

[17] On April 24, 2003, Ms. de Aguayo wrote back to Mr. Done to inform him that the PSAC would not be taking carriage of the judicial review application on Mr. Vogan's behalf. Her letter was copied to Mr. Vogan. Attached to this letter was Mr. Raven's legal opinion on Mr. Vogan's judicial review application. In her letter, Ms. de Aguayo indicated that she had talked to Mr. Vogan about his case and after considering her comments, the legal opinion of Mr. Raven and several other factors, she was not recommending that the PSAC take carriage of this case. Nevertheless, the PSAC could help him in preparing the necessary motion materials.

[18] Mr. Vogan explained that after receiving a copy of Ms. de Aguayo's letter, he phoned Mr. Raven's secretary to arrange to talk with Mr. Raven about his legal opinion (Exhibit 4).

[19] At the hearing, Mr. Vogan indicated that Mr. Raven had explained the rationale for his legal opinion. Mr. Vogan, however, was not satisfied with this discussion, as Mr. Raven did not cover the arguments that Mr. Vogan had put forward. Mr. Vogan then contacted the Board and thereafter was sent a copy of the decision in Myles v. Treasury Board (Human Resources Development Canada), 2002 PSSRB 53, where the issue was to determine if the adjudicator, under the PSSRA, had jurisdiction to adjudicate whether or not the terms of settlement had been fulfilled.

[20] Mr. Vogan testified that he decided to pursue this complaint, as he was not satisfied that the PSAC carried out its obligations as outlined in the mediation agreement.

Arguments

For the Complainant

[21] Mr. Vogan submitted that what was said at the mediation is as binding as what is in the agreement. As it was stated at the mediation, the review would have to be done before the January 2, 2003 deadline. As well, in order to have a speedy review, as agreed, the review would automatically have to occur before the January 2, 2003 deadline. There was also an understanding that Mr. Vogan would meet with Mr. Raven to discuss his case before a decision was made by the PSAC to support or not support his judicial review application.

[22] Mr. Vogan further submitted that because the PSAC did not fulfill the terms of the agreement, the agreement is now null and void and the Board can hear his complaint.

[23] Mr. Vogan argued that the jurisprudence submitted by Mr. Done did not apply in the instant complaint. The case law concerned mediations between the employer and an employee and the issue here is between a member and his bargaining agent. Mr. Vogan explained that it is within the Board's jurisdiction to oversee the fulfilment by a bargaining agent of its obligation to its members, including the obligation entered through a mediation agreement.

For the Respondent

[24] Mr. Done submitted that the jurisprudence of the Board is unambiguous that the Board's jurisdiction comes to an end once it realizes that there is a binding agreement between the parties. Point three of the settlement agreement is quite clear; it is not conditional or qualified. It is not written that once the terms of settlement have been complied with, the complaint will be withdrawn. When Mr. Vogan signed the settlement agreement on December 2, 2002, he unequivocally withdrew his complaint on that day.

[25] It is very important to the PSAC that an agreement concluded in the mediation of a complaint has finality. Otherwise, any attempt of settlement would be discouraged. This finality encourages both parties to settle; otherwise, the parties would not go to mediation, as there would always be a possibility that the matter would go back before the Board.

[26] Mr. Done argued that the PSAC has fulfilled the terms of agreement and Mr. Vogan's argument that the agreement is null and void should be rejected. In the agreement, there is no clause to the effect that Mr. Vogan would meet with Mr. Raven. Nevertheless, Mr. Vogan did speak with Mr. Raven. There was never any guarantee that the PSAC would support Mr. Vogan's judicial review application. There was no deadline specified in the agreement for replying to Mr. Vogan regarding his request for support, and it is obvious from Mr. Vogan's own correspondence of March 20, 2003, that there is no indication that there is a missed deadline. Nothing happened after January 2, 2003, and the PSAC was prepared, in April 2003, to provide assistance to Mr. Vogan, as indicated in Ms. De Aguayo's letter.

[27] Mr. Vogan and the PSAC reached an agreement after mediation, which was full and final and, as a result, Mr. Vogan withdrew his complaint.

[28] Therefore, the Board has no jurisdiction to hear this complaint, as there is no complaint left since Mr. Vogan withdrew it on December 2, 2002.

[29] In support of his argument, Mr. Done relied on the following decisions: Myles (supra), Skandharajah v. Treasury Board (Employment and Immigration Canada), 2000 PSSRB 114, Carignan (supra), Lindor v. Treasury Board (Solicitor General - Correctional Service Canada), 2003 PSSRB 10, Bhatia v. Treasury Board, PSSRB File No. 166-2-17829 (1989) (QL) and Treasury Board v. Deom, PSSRB File No. 148-2-107 (1985) (QL).

Reasons for Decision

[30] As indicated previously, I have limited the information on the mediation and the settlement agreement in this decision to the basics in order to maintain as much as possible the confidentiality of the mediation process (see Skandharajah (supra)).

[31] Mr. Vogan submitted that because the terms of agreement have not been respected by the PSAC, the agreement is null and void. He explained that in order to have a speedy review as agreed to at the mediation, a review of his case, to determine if the PSAC would support it, would have to be done before the January 2, 2003 deadline. As well, there was an understanding that Mr. Raven would meet with him before the PSAC reached a decision as to whether to support his judicial review application.

[32] Mr. Done disputed this and stated that what had been agreed to at the mediation had been consigned in the agreement. As well, it is clear from the evidence that the PSAC had fulfilled all of its obligations under the said agreement. Nothing happened after January 2, 2003 and the PSAC was prepared to assist, in April 2003, Mr. Vogan, in preparing the necessary motion materials.

[33] During a mediation session, discussions frequently take place concerning different scenarios. As well, the parties have the opportunity to exchange information on issues they feel are important. Not all that is discussed is agreed to by both parties. In the end, what the parties have agreed to should be consigned to the mediation agreement. If there is a disagreement between the parties as to what was agreed upon during mediation, the parties can then rely on the text of their agreement.

[34] What essentially Mr. Vogan is complaining about is that the terms of the settlement agreement were not fulfilled by the PSAC. This is not an issue that I have the authority to decide under the PSSRA as indicated in Myles (supra) and Carignan (supra), neither the Board nor an adjudicator appointed under the PSSRA is a competent tribunal to decide whether the terms of a settlement have been fulfilled.

[35] Therefore, I have to determine whether or not the settlement agreement signed by the parties is binding.

[36] Mr. Vogan does not dispute that he entered into a settlement agreement on December 2, 2002. Mr. Vogan did not submit that he signed the settlement agreement under duress or otherwise did not give valid consent to this agreement.

[37] I have reviewed the agreement and I find no clause indicating that it was a conditional agreement or that the agreement would be null and void if one of the parties did not fulfill any of its obligations under the agreement. I therefore find that the settlement agreement signed by the parties is a binding agreement.

[38] The next question to be determined is whether a binding settlement agreement constitutes a bar to having a complaint against a bargaining agent by one of its members adjudicated under the PSSRA.

[39] Mr. Vogan argued that the Board's jurisprudence on settlement agreements of grievances would not apply to complaints by members against their bargaining agent. Mr. Done submitted that this jurisprudence applied to complaints.

[40] Similarly to the grievance procedure, the complaint procedure, as found in the PSSRA, is designed to provide bargaining agents and their members with a method for the orderly processing of complaints. The parties may attempt to settle their dispute at various stages but it follows that, if through mediation or discussions between them they conclude a binding settlement agreement, they should not be allowed to break this agreement if they have second thoughts about the matter.

[41] In MacDonald v. Canada (1998), 158 F.T.R. 1 (affirmed, [2000] F.C.J. No. 1902, leave to appeal dismissed, [2001] S.C.C.A. No. 30), Justice Gibson found that when an employee grieves and then enters into a binding settlement agreement with the employer, the employee loses the right to pursue the matter under the PSSRA. I see no reasons why this principle should not apply to a complaint.

[42] A member who complains against his bargaining agent and then enters into a binding settlement agreement with the bargaining agent is in the same position as a grievor who enters into a binding settlement agreement with his employer.

[43] Finality is very important to the parties; otherwise, they would never know whether, in fact, an agreement has been reached. Likewise, harmonious relations between a bargaining agent and its members are an important component of a good labour relations environment. Uncertainty about the finality of settlement agreements in complaints against a bargaining agent could therefore be harmful to a good labour relations environment and jeopardize any attempts at complaint settlement.

[44] I therefore find that the binding agreement between the parties constitutes a complete bar to having the complaint proceed to a hearing.

[45] Having found that the parties settled this complaint, I conclude that there is no longer a dispute between them and there is, therefore, no matter to be determined by the Board. These proceedings are therefore closed.

Guy Giguère
Deputy Chairperson

OTTAWA, November 8, 2004