FPSLREB Decisions

1 Martin Ouellet, the complainant, was an employee of the Correctional Service of Canada until October 2008.

2 On April 19, 2007, the complainant filed a complaint with the Public Service Labour Relations Board ("the Board") against his union representative, Luce Saint-Georges, and the Correctional Service of Canada ("the employer") under paragraphs 190(1)(b) and (d) of the Public Service Labour Relations Act (PSLRA).

3 The bargaining agent, the Public Service Alliance of Canada (PSAC), on its own behalf and that of Ms. Saint-Georges, replied that the complaint should be dismissed because it is based on legislative provisions that relate exclusively to obligations between the employer and the bargaining agent. The Treasury Board, on behalf of the employer, replied that the complainant is trying to revive a dispute that was previously denied by an adjudicator and that the complaint is untimely. The complainant disagreed with his bargaining agent’s position but did not reply to the employer’s objection.

4 On January 9, 2008, the Chairperson of the Board requested that the parties submit written arguments with respect to the Board’s jurisdiction in this matter.

5 On January 23, 2008, the PSAC responded that the paragraphs invoked by the complainant in support of his complaint do not apply in this case and argued that the complaint was filed outside the period set out in the PSLRA. The PSAC also claims that the complainant, dissatisfied with the decision rendered on February 27, 2007 by adjudicator Tessier in Ouellet v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 23, is attempting to use this complaint to argue his case again. The PSAC reiterated its argument that the Board would not have jurisdiction to hear and decide this complaint.

6 On January 30, 2008, the employer responded that the complainant’s allegations do not correspond to the obligations to bargain in good faith set out in section 190 of the PSLRA or to the reference to section 56 about the obligation to maintain the terms and conditions of employment following an application for certification. The employer also mentioned the finality of adjudicator Tessier’s February 27, 2007 decision.

7 The complainant did not reply to either of the objections.

8 Following the written arguments, a hearing was set for this case.

9 At the start of the hearing, the complainant explained that his complaint relates to the poor defence that the bargaining agent provided against the disciplinary measures that the employer imposed on him and in the subsequent grievance adjudication. The complainant argued that his evidence will show that the actions of the bargaining agent and the employer were closely related. However, he acknowledged that the employer’s objection could have merit and asked me to rule on that objection first. The complainant argued that the bargaining agent’s objection to the Board’s jurisdiction is unfounded. He submitted that he invoked the sections of the PSLRA without being fully informed because he was acting alone when he filed his complaint.

10 The bargaining agent then argued that, on January 12, 2009, it renewed its objection to the Board’s jurisdiction to hear this complaint but that it now wishes to withdraw that objection given that the wording of the complaint complies broadly with the provisions of section 187 of the PSLRA. The bargaining agent withdrew its previous objection that the complaint was untimely.

11 The employer submitted that the fine imposed on the complainant, which was the subject of a grievance and of this complaint, was resolved by a memorandum of understanding and that, consequently, the Board does not have jurisdiction to decide this matter. The employer argued that the Board decided the matter of the complainant’s demotion and that it does not have jurisdiction to decide it again. Lastly, the employer reiterated its objection that the complaint is untimely given the Board’s decision in Dumont et al. v. Department of Social Development, 2008 PSLRB 15, which found that the 90-day limit to submit a complaint set out in subsection 190(2) of the PSLRA is mandatory.

12 Following those arguments, I ruled orally that the employer’s objections are upheld because, on its face, the complaint does not relate to the obligation to bargain in good faith or to maintain the terms and conditions of employment following an application for certification, which are the subjects of section 190 of the PSLRA. Moreover, the complaint is clearly untimely, since the provisions of subsection 190(2) state that a complaint under subsection 190(1) must be presented within 90 days. Accordingly, the complaint against the employer is dismissed.

13 The complainant then objected to the employer’s presence for the continuation of the hearing given my decision to uphold the objection. The complainant argued that certain facts could come out during the hearing that would not concern the employer. I explained to the complainant that hearings are public and that, in addition, the employer may have an interest in the outcome of the investigation and the corrective action of any future decision.

14 The complainant then indicated that he made an access-to-information request two days before the hearing to obtain the contents of his personnel file and that he had not yet received the requested information. He stated that he now required counsel to present a certain part of his case. He informed me that he met with counsel the day before the hearing and that he was not available for today’s hearing. The complainant requested that the hearing be postponed.

15 Asked why he did not request a postponement before the hearing so that only those persons required would have to attend, the complainant responded that he minimized the need for some to attend by not calling certain witnesses for whom he had obtained subpoenas. Furthermore, he decided only this week to obtain legal counsel because the bargaining agent had renewed its objection on January 12, 2009 (three days before this hearing) and because of the stress of having to question the witnesses, including, among others, Ms. Saint-Georges. The complainant stated that he wished to present certain facts but that he also wished to share the burden of the examinations at the hearing with counsel.

16 I explained to the complainant that he must decide if he wishes to be represented by counsel or to proceed alone and that if I were to grant him a postponement to allow for him to be represented by counsel, he must obtain a declaration of appearance from that counsel.

17 I granted the complainant a recess of the hearing until 15:00 to allow him to obtain the declaration of appearance from his counsel stating that he would, in fact, represent the complainant.

18 When the hearing resumed at 15:00, the complainant provided me with a letter from his counsel, Jean-François Houle, which reads as follows:

[Translation]

Dear Madam Vice-Chairperson,

The purpose of this correspondence is to confirm that I am prepared to assist Mr. Martin Ouellet during the hearing of his complaint at a later date to be set at your pleasure.

This is not the usual type of mandate as it will be limited to conducting cross-examinations of the witnesses of the employer and the union.

Humbly, we submit that while Mr. Ouellet has the option of representing himself, respectfully he has the option of engaging counsel to conduct part of the hearing.

Please excuse my absence this afternoon as my schedule does not allow me to be before you on such short notice.

Sincerely,

Jean-François Houle
Counsel

19 The complainant explained to me that the only mandate he has given to his counsel is to assist him at the hearing in cross-examining witnesses. He stated that he was ready to proceed with certain statements related to his complaint.

20 In reply to the complainant concerning his intention to proceed by statements rather than by testimony, the PSAC pointed out that a presentation of the case in which the complainant both represents himself and is represented by counsel creates an untenable situation because it is impossible to know whom to address and who is responsible for directing the evidence and the proceedings related to the complaint.

21 The complainant stressed the fact that he wanted to limit his counsel’s assistance to certain questions and to the cross-examination of witnesses and that he intends to make statements in support of his complaint that present his point of view.

22 After thoroughly considering the arguments of the complainant and the PSAC, and given that the evidence before me must be presented in an orderly manner while respecting the rights of the parties, I decided that it was appropriate to adjourn the hearing. I am of the view that the complainant’s request to have counsel present was justified so that he would have the opportunity to understand the issues raised by his complaint and to understand how a hearing is conducted before an administrative tribunal. To avoid any confusion, I indicated to the parties orally that I would render a decision clearly setting out the instructions that will serve to frame the presentation of this matter.

23 Accordingly, the following instructions apply to the complainant, his counsel and the PSAC on resumption of the hearing.

24 The letter from Mr. Houle is accepted as a declaration of appearance of counsel as the complainant’s representative in this case.

25 The postponement of the hearing in this case is granted on the grounds that the complainant requested to be represented by counsel. It is a question of natural justice to allow the complainant to fully present his case, to examine and cross-examine witnesses, and to make arguments in support of his complaint.

26 From now on, the Board’s correspondence in this case will be addressed to Mr. Houle on behalf of the complainant, whom he is representing.

27 The Board will communicate with Mr. Houle and with the PSAC to set the next dates for the hearing. Once set, the hearing dates will be deemed final.

28 At the resumption of the hearing, the complainant’s evidence is to be limited to the provisions of section 187 of the PSLRA, that is, to the bargaining agent’s duty to provide fair representation with respect to the grievance that led to the Board’s decision in Ouellet, as the complainant alleged during the hearing on January 15, 2009. The burden of proof of the complaint against the bargaining agent rests with the complainant.

29 Given Mr. Houle’s appearance, he will be considered the complainant’s spokesperson for all proceedings related to the hearing to be set and the complainant’s counsel for all purposes related to the resolution of this case.

January 27, 2009.

PSLRB Translation

Michele A. Pineau,
Vice-Chairperson