FPSLREB Decisions

Complaint before the Board

[1]   On August 13, 2003, Estelle Lahaie–Delorme filed a complaint with the Canada Industrial Relations Board (the “Board”) against the Public Service Alliance of Canada, alleging that the bargaining agent had breached its duty of fair representation to an employee in the bargaining unit.  The Canada Industrial Relations Board forwarded the complaint to the Public Service Labour Relations Board. This Board is treating the complaint as if it had been made under section 23 of the Public Service Staff Relations Act.

[2]   On November 14, 2003, the respondent made application to the Board to dismiss the complaint without an oral hearing. The parties debated the issue by way of written submissions, ending on August 30, 2004.  On December 3, 2004, the Board dismissed the respondent’s application and referred the complaint to a hearing.

[3]   Because of problems with the availability of the parties, the case was not heard until April 5 and 6, 2005.

[4]   On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.  Under section 39 of the Public Service Modernization Act, the Board remains seized of this complaint.

Summary of the evidence

[5]   The complainant explained that she had returned to the work force in 1998.  She worked in the Royal Canadian Mounted Police (the “R.C.M.P.”) medical service, performing administrative work in addition to handling reception.  She was appointed for a term. Her term of employment was renewed in 1999 and after that, until February 14, 2003, she was reappointed each year for a one–year term.

[6]   Under stress because of her mother’s illness, the complainant said that she had had to be absent from work on a number of occasions, beginning in 2000.  At the request of the employer, a specialist chosen by Health Canada examined the complainant.  The findings of the examination were sent to the employer on October 29, 2002 (Exhibit P–4).  They indicated that the complainant was able to work. However, her medical condition caused her to be late or absent sometimes, but this would resolve itself with the proper treatment.

[7]   In November 2002, three months before the end of her term, Ms. Lahaie–Delorme was informed that her employment would end on November 22, 2002, because of her numerous absences and administrative errors committed in the performance of her work (Exhibit P–1).  Ms. Lahaie–Delorme discussed this with Mr. Scott, president of the local of the bargaining agent.

[8]   After reviewing the file, Mr. Scott filed a grievance (Exhibit P–3) on behalf of the complainant in which, in particular, he noted that the termination of the employment was technically illegal since it had been signed by a person without the authority to do so.  On January 10, 2003, the employer’s representative at the first level of the grievance procedure admitted the error and reinstated Ms. Lahaie–Delorme in her duties beginning on November 22, 2002 (Exhibit P–2).

[9]   However, on January 13, 2003, when Ms. Lahaie–Delorme reported to work, she was informed in writing that the employer would not renew her term and, consequently, her employment would end at the end of the term, i.e., on February 14, 2003 (Exhibit P–3).  Ms. Lahaie–Delorme said that from that time on, she was isolated from her co–workers and assigned to administrative duties that involved filing.  Her workplace was in an office left vacant by the absence of another employee and she could not receive telephone calls because there was a voice recording in the absent employee’s name.

[10]   Ms. Lahaie–Delorme informed Mr. Scott of the letter she had received concerning the non–renewal of her term and of the situation upon her return to work. According to Ms. Lahaie–Delorme, Mr. Scott said that the letter was valid and could not be challenged.  There was no grievance to be adjudicated, since her case did not arise from the interpretation or application of the collective agreement or disciplinary action by the employer.

[11]   Mr. Scott arranged a meeting with the employer to discuss Ms. Lahaie–Delorme’s working conditions and tried to settle a dispute regarding Ms. Lahaie–Delorme’s leave forms.  On this last point, Ms. Lahaie–Delorme said that she had explained to Mr. Scott that the employer owed her overtime, which might make up for some of the absences.

[12]   Ms. Lahaie–Delorme said she was dissatisfied with the comments made by Mr. Scott.  He did not find the fact that the employer had isolated Ms. Lahaie–Delorme in an office and given her administrative duties that involved filing out of line.

[13]   Ms. Lahaie–Delorme was affected by this situation and quit her job at the beginning of February 2003 instead of on the date planned.

[14]   Four months after the end of her term, Ms. Lahaie–Delorme forwarded a demand to the respondent:

[TRANSLATION]

[…]

We have been instructed by our client, Ms. Estelle Lahaie–Delorme, to make sure that you are going to represent her adequately and not in bad faith so that she can recover the total amount in damages for the loss of this employment by reason of a constructive/wrongful dismissal on the part of the RCMP.  The real reason for this dismissal is a personal conflict due in part to the health problems of our client at the time and the failure of the first attempted dismissal. Furthermore, you are also asked to have the debt owed by our client to the RCMP cancelled since she never received a letter confirming the exact amount or even the reasons for the claim.

[…]

[15]   In closing her testimony, Ms. Lahaie–Delorme said that Mr. Scott did not resolve the dispute surrounding her days of absence and did nothing to re–establish her working conditions.

[16]   Mr. Scott testified for the respondent.  He has been employed with the R.C.M.P. since 1978 and has acted as a representative of the bargaining agent for the past twelve years.  From 2001 to 2003, he was local president for the bargaining agent.  Mr. Scott stressed that he often has to represent the bargaining agent, as he has only five local representatives to assist him in serving more than 1,000 employees.

[17]   Mr. Scott contended that he had properly represented Ms. Lahaie–Delorme when she received the letter of dismissal in November 2002.  In the notice of grievance that he submitted on behalf of the complainant (Exhibit P–5), he indicated to the employer that the complainant could not be blamed for her many absences, since they were for medical reasons.  In addition, Mr. Scott’s chief argument was that the dismissal was illegal because the person who had signed it did not have the authority to do so.  Mr. Scott’s representation was effective, as Ms. Lahaie–Delorme was reinstated in January 2003 with full compensation.

[18]   Concerning the letter stating that her term would not be renewed, which was given to Ms. Lahaie–Delorme upon her return to work on January 13, 2003, Mr. Scott viewed this situation as different from that in November 2002.  This was a notice concerning the non–renewal of a term and, according to the information at his disposal, no recourse existed whereby it might be challenged.

[19]   Mr. Scott informed Ms. Lahaie–Delorme that there was no remedy against the non–renewal of a term and Ms. Lahaie–Delorme did not argue with this.  Ms. Lahaie–Delorme’s demands focused instead on the employer’s monetary claims in relation to her absences and on her working conditions in January 2003.

[20]   To deal with these issues, Mr. Scott arranged a meeting with the employer.  He asked Ms. Lahaie–Delorme to produce a statement of the overtime hours that might compensate for some of her tardiness and absences.  He asked the employer to produce a statement of Ms. Lahaie–Delorme’s absences.

[21]   According to Mr. Scott, the issue of absences is hard to resolve because Ms. Lahaie–Delorme did not produce her statement of overtime.  The employer did, however, produce a statement of absences (Exhibit I–7).  The employer asked that Ms. Lahaie–Delorme produce leave applications for certain specific days and for the days on which she thinks that she was absent.

[22]   The meeting with the employer was cut short because Ms. Lahaie–Delorme’s supervisor had to leave.  Mr. Scott advised Ms. Lahaie–Delorme to submit leave applications for the days specifically requested by the employer. According to him, the employer’s criticism of Ms. Lahaie–Delorme does not relate to her absences as such but rather to the fact that the complainant did not give advance notice of her absences and did not submit leave applications.

[23]   Concerning Ms. Lahaie–Delorme’s working conditions, Mr.  Scott admitted that he had not insisted on this issue with the employer.  At the time, only a few weeks remained before the end of Ms. Lahaie–Delorme’s term. He hoped that Ms. Lahaie–Delorme would cooperate with the employer and submit her leave applications in order to put her personnel file in good shape.  According to Mr. Scott, this would make it easier for her to find another job somewhere else later.

[24]   According to Mr. Scott, Ms. Lahaie–Delorme told him that she wanted to make life miserable for her supervisor from then until the end of her term. In these circumstances, Mr. Scott found that it was undoubtedly better for Ms. Lahaie–Delorme to work for a few weeks in a different office rather than disturb the other employees’ work.

Summary of arguments

[25]   According to the complainant, the bargaining agent did not make the effort that was required so that she could resume her duties after she had been reinstated at work in January 2003.

[26]   In its actions in January 2003, the bargaining agent took the employer’s remarks into consideration and did not object to the fact that the employer was giving Ms. Lahaie–Delorme administrative duties and isolating her from the other employees.  The employer had earlier tried to dismiss Ms. Lahaie–Delorme in November 2002 and had said that it would not renew her term in February 2003.  The respondent should have confronted the employer on this point.

[27]   The complainant referred to the decision in Longpré v. Treasury Board (National Defence), 2004 CRTFP 81, for the proposition that a grievance may be referred to adjudication where it reveals an arguable case, such as bad faith by the employer.  According to her, the respondent has a duty to represent her and cannot act arbitrarily or in bad faith.  Referring to Le droit du travail du Québec (Labour Law in Quebec), by Robert P. Gagnon, the complainant called attention to the following statement:

[TRANSLATION]

[…]

[…] Arbitrariness is close to gross negligence and is often confused with it. It is found accordingly in a case where the actions of the certified association cannot be explained by any objective or reasonable factor: blind trust in the information provided by the employer or failure to consider the employee’s claims or to verify their basis in fact or even in law.

[…]

[28]   For its part, the respondent contended that the criticisms raised by Ms. Lahaie–Delorme were different from those in her demand letter.  It asked the respondent to help her obtain compensation in damages by reason of the end of employment and to have her debt to the employer in connection with her absences cancelled.  In her complaint, Ms. Lahaie–Delorme criticized the bargaining agent for not challenging the end of her employment and for not having protected her working conditions in January 2003 following her reinstatement.

[29]   On the first point, the respondent’s view was that Mr. Scott had correctly analysed the situation in terms of the basis of the dispute, namely, the non–renewal of the term.  A review of the case law confirmed that Ms. Lahaie–Delorme could not have won her case by way of grievance.  In that regard, the respondent referred to its analysis of the case (Exhibit I–3) and submitted decisions in support of its position.

[30]   The bargaining agent noted that Mr. Scott had successfully defended Ms. Lahaie–Delorme’s interests in November 2002.  He had also handled her case at the time of the non–renewal of her term in January 2003.  At that time, Mr. Scott had explained to Ms. Lahaie–Delorme that the issue was the non–renewal of a term and that she could not succeed by way of adjudication.  With respect to Ms. Lahaie–Delorme’s leave applications and her working conditions in January 2003, Mr. Scott contacted the employer and arranged a meeting.

[31]   The meeting with the employer was unfortunately cut short and these points could not be discussed in depth.  As a result of difficulties in obtaining the information from the complainant concerning her absences and in view of Ms. Lahaie–Delorme’s attitude towards her supervisor, Mr. Scott decided not to pursue the matter and advised Ms. Lahaie–Delorme to co–operate and to try to find another job.

[32]   According to the respondent, there is no evidence that its representation in this case was arbitrary, discriminatory or in bad faith.

Reasons

[33]   The respondent stressed that the discussions between Ms. Lahaie–Delorme and her representative primarily concerned the complainant’s working conditions in January 2003 and the submission of her leave applications.  According to the respondent, Ms. Lahaie–Delorme expanded the scope of her complaint in addressing the issue of the end of her employment.  I cannot accept this position. The end of employment is a determinative element for an employee.  Even if Ms. Lahaie–Delorme was occupied in January 2003 with resolving the issues relating to her absences and working conditions, it cannot be concluded that she waived the defence of her rights with respect to the end of her employment.

[34]   The respondent’s principal argument is that its representative correctly analysed the situation with respect to the employer’s notice in January 2003 that the term would not be renewed.  Mr. Scott had told the complainant from the outset that she had no recourse because this was not a matter that could be referred to adjudication.

[35]   On this point, an evaluation of the chances of success of such a grievance is not arbitrary, discriminatory or in bad faith.  Mr. Scott testified as to his experience in similar cases, and the documents prepared by the bargaining agent show that the case law, in particular cases concerning term appointments, had been canvassed.

[36]   The Honourable Judge Pratt, in Dansereau v. National Film Board, [1979] 1 F.C. 100, stated that “[a]n employee hired for a specific term is not laid off when this term expires, since the termination of his employment at that time is not due to a lack of work but to the terms of the contract under which the employee was hired.”

[37]   This pronouncement was repeated in more detail in Pieters v. Treasury Board (Federal Court of Canada), 2001 PSSRB 100, at paragraph 45:

The first thing I must determine is whether the employer's failure to renew the grievor's  term contract is a "termination of employment" within the meaning of subparagraph 92(1)(b)(ii) of the PSSRA.  I do not believe it is for the following reasons.  No action was required on the employer's part, as would be the case, for example, in the rejection on probation or the lay–off of an employee, to bring the grievor's employment to an end.  Rather, it came to an end by virtue of the provisions of his term contract and by virtue of section 25 of the Public Service Employment Act .  I believe that support for this conclusion can be found in the decisions of the Federal Court of Appeal in Dansereau v. National Film Board , (supra), and Eskasoni School Board/Eskasoni Band Council v. MacIsaac , (supra).

[38]   In Hébert v. Public Service Alliance of Canada et al., 2005 PSLRB 62, the following is stated:

[…]

A bargaining agent is required to represent the employee in a bargaining unit in a manner that is neither arbitrary, discriminatory nor in bad faith. When it receives a complaint of unfair representation, the Board must assess the actions in question to determine whether they constitute a breach of this duty of representation.

[…]

[39]   On this subject, the Board held as follows in Ford v. Public Service Alliance of Canada, PSSRB file No. 161–2–775 (1995) (QL):

[…]

There is a great deal of jurisprudence emanating from this Board in respect of the above provision and there is no need for me to attempt to summarize it here.  Suffice it to say that the Act enjoins the bargaining agent to represent its members fairly and not in a way that is arbitrary, discriminatory or in bad faith.  That being said, it does not mean that a bargaining agent is obliged to take every complaint of every member to the highest court in the land.  The member does not have an absolute right to have the bargaining agent represent him or her at adjudication.  The bargaining agent has considerable scope and is free to weigh a variety of factors in reaching its decision, such as the relevant jurisprudence, whether the member’s case is well–founded, costs and the interests of the bargaining unit as a whole as well as other considerations. […]

[40]   The complainant relied on Longpré (supra)  to indicate that her grievance could have been referred to adjudication.  The Longpré decision (supra) does not deal with the issue of representation by the bargaining agent, but rather with whether it was appropriate for a grievance to be dismissed without an oral hearing because on the face of the file, it was not eligible for adjudication.

[41]   Upon reviewing the evidence submitted, I note that Ms. Lahaie–Delorme was unable to show that the respondent had acted towards her in a manner that was negligent, discriminatory or in bad faith.  Quite the contrary, the representative of the bargaining agent weighed the pros and cons of Ms. Lahaie–Delorme’s allegations concerning the non–renewal of her term.

[42]   Concerning the calculation of her days of absence, Mr. Scott took action and arranged a meeting with the employer.  Ms. Lahaie–Delorme did not have the statement of her hours of overtime at hand and showed little interest in completing and signing her leave applications.  On the issue of her working conditions and the limited duties given her by the employer, Mr. Scott considered that Ms. Lahaie–Delorme had two to three weeks remaining before the end of her term and took into account the complainant’s attitude towards her supervisor since Ms. Lahaie–Delorme wanted, according to Mr. Scott, [ translation] “to make life miserable” for her.  Mr. Scott’s decision was made under particular circumstances. It was his duty to weigh the pros and cons of defending a grievance on this point.

[43]   Ms. Lahaie–Delorme did not show that the respondent had acted in a manner that was arbitrary or discriminatory or in bad faith, either with respect to the end of her employment or with respect to the claims about her working conditions and absences.

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

Order

[45]   The complaint is dismissed.

August 23, 2005.

Jean–Pierre Tessier,
Board Member

P.S.L.R.B. Translation

Public Service Labour Relations Board Managerial or Confidential Positions Annex Files 572-32-108, 572-32-V1 All the employees of the employer other than those in the Veterinary Medicine, Agriculture, Biological Sciences, Chemistry, Commerce, Engineering and LandSurvey, Purchasing and Supply, Scientific Research, Economics, Sociological and Statistics and Informatics Group