FPSLREB Decisions

I. Complaint before the Board

1 On April 15, 2009, Kabeer Sayeed (“the complainant”) filed a complaint with the Public Service Labour Relations Board (“the Board”) against the Professional Institute of the Public Service of Canada (“the respondent”), pursuant to paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”), alleging that it had committed an unfair labour practice by violating its duty of fair representation.

2 The complainant described his allegations against the respondent as follows:

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4.1. Instead of dealing with the various grievances on behalf of the Complainant in accordance with the terms of the Collective Bargaining Agreement (CBA), the Respondent demanded that the Complainant sign an agreement that absolves both the Employer’s Representatives (ER) and the Respondent from any responsibility or liability…

4.2. The Respondent threatened the Complainant with withdrawal of all services if he fails to sign the said agreement …

4.3. Colluded with the ER by attempting to absolve the employer of any and all responsibility or liability through threats to force the Complainant on pain of denial of representation to sign an agreement that achieves this objective …

4.4. Failure by the Respondent to take action on the violation of the Complainants human rights even after being requested to do so …

4.5. Failure by the Respondent to take any action against whatsoever the harassment, intimidation, threats to the livelihood by the ER even after being requested to do so …

4.6. The Respondent finally carried out the threat of complete withdrawal of all representational services to the Complainant because the Complainant was not willing to give up his lawful rights by signing the aforementioned one-sided agreement …

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10. Other matters relevant to the complaint:

It is suspected that the behavior of the Respondent towards the Complainant may be motivated by the Complainant bringing a motion for the removal of the President of the Respondent for illegally terminating (in complete violation of the by-laws of the Respondent) the stewardship role of the Complainant with the Respondent… .

[Sic throughout]

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3 The complainant seeks the following corrective measures:

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9.1. The failure of the Respondent to protect and defend the rights of the Complainant resulted in the Complainant suffering severe stress and damage [sic] his mental and physical well being. This forced (As clearly stated in the Notice of Resignation time stamped 2008 07 09) the Complainant to resign from his employment against his will thus resulting [sic] severe financial hardship as well. In order to prevent this from happening to other employees, it is necessary to impose severe and exemplary punishment upon the Respondent for the dereliction of duty, bad faith, and collusion with the Employer’s Representatives (government organizations and their officers) on its part so that it will discourage such behavior on the part of all Employee Organizations in the future. Therefore, the Complainant requests the PSLRB to take action against the Respondent by way of significant fines and penalties, and if allowed by the law, pay reasonable compensation to the Respondent as well as reasonable punitive damages.

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4 On June 10, 2009, the respondent filed a request for particulars and for the production of documents, alleging that the complaint lacked sufficient information for it to be able to respond and that documents referred to in the complaint were not attached to it.

5 On September 30, 2009, the complainant submitted the requested documents.

6 On October 14, 2009, the respondent submitted its response to the complaint, and the complainant submitted a rebuttal on October 28, 2009.

7 On December 8, 2009, the parties were informed that, pursuant to section 41 of the Act, the Board had decided that the complaint would proceed by way of written submissions, and the parties were invited to provide any additional submissions and documentation that they wished the Board to consider.

8 The complainant and the respondent filed their respective submissions on January 25, 2009, and the complainant filed additional submissions on January 26, 2009.

II. Summary of the evidence

9 The following events led to the complaint.

10 The complainant was employed by the Department of National Defence (“the employer”), and as such, he was a member of the bargaining unit represented by the respondent. On July 6, 2008, the complainant informed his employer that he was resigning and retiring from his employment. On the notice of resignation/retirement that he was asked to complete, he stated that he was resigning for the following reasons:

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Assignment of meaningless tasks without basis in valid requirements; Problems due to gross supervisory & managerial incompetence. Under-utilization of my expertise and capabilities; Arbitrary and unrealistic deadlines; Disrespect by supervisor; Denial of mandatory training and Professional development; Unfair and discriminatory practices against me; False and malicious performance appraisals; Micromanagement, bullying, arbitrary denial of leave, and many other forms of abuse, harassment and wrongdoing by supervisors.

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11 The employer expressed concerns over the reasons the complainant stated in his notice of resignation/retirement, and on July 15, 2008, it sent him a letter in which it insisted that the complainant was “[i]n no way being coerced/forced into discontinuing [his] employment.” The employer also requested that the complainant confirm his wish to retire and encouraged him to consult with the respondent before making a final decision. The respondent was copied on that letter.

12 On July 16, 2008, Karyn Ladurantaye, Employment Relations Officer for the respondent, emailed the complainant, inviting him to contact her if he wished to further discuss his decision to resign and indicating that she would undertake discussions with the employer in an attempt to resolve the complainant’s outstanding grievances.

13 On July 17, 2008, the complainant replied to Ms. Ladurantaye’s email and reaffirmed his decision to resign/retire for the reasons stated in his notice of resignation /retirement. He also indicated that “[he] requested [her] to take immediate action on this matter, protect all [his] interests, and ensure that all moneys due to [him] are paid to [him] in full without delay whatsoever… .”

14 The respondent held discussions with the employer’s representatives to resolve the complainant’s outstanding grievances. According to the respondent, there were five outstanding grievances, three of which were about performance appraisals, one about a disciplinary letter and one about a one-day suspension. From the respondent’s standpoint, the only grievance that was adjudicable was the one challenging the one-day suspension. On September 15, 2008, Ms. Ladurantaye sent a letter to the complainant informing him that the employer was willing to withdraw the letter of suspension and to reinstate the pay and benefits of that one day. Attached to the letter was a Memorandum of Agreement (MOA) that the complainant was invited to sign if he agreed with the settlement proposal. Ms. Ladurantaye indicated that she recommended that the complainant accept the settlement considering that the employer’s offer corresponded to the maximum benefit that the respondent thought could be achieved through adjudication. The letter also specified that the respondent would withdraw its representation if the complainant refused the offer of settlement and that, should that be the case, the complainant could pursue matters on his own behalf.

15 The proposed MOA attached to the letter referred to the five outstanding grievances and contained the following paragraphs:

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3. By signing this Memorandum of Agreement, it is agreed by the parties that all aforementioned grievances are considered to be withdrawn.
4. By signing this Agreement, the grievor, on behalf of himself, his heirs, executors, administrators, successors and assigns, releases and forever discharges Her Majesty the Queen in Right of Canada, her officers, servants, agents, and employees, from all damages, liability, costs, expenses, claims, complaints, grievances, causes of action, and any other matters or proceedings of any kind or nature whatsoever in law, in equity or otherwise existing up to the present time or which are now known, anticipated, or unknown but which may arise in the future arising out of or connected to his present employment with the Department of National Defence.

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No party admits to any wrongdoing or liability. The terms of this Agreement are private between the parties, and will not be subject to any publicity. This agreement does not form a precedent and does not prejudice any party.

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The parties agree that this agreement constitutes full and final settlement of all the matters referred to herein. 

16 The complainant was not satisfied with the MOA and refused to sign it. On October 2, 2008 he sent an email that contained the following:

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2. I am unable to accept your proposal for the resolution of the outstanding work place problems as embodied in refs. 2 and 3. Ref. 3 requires me too give up my lawful rights in this matter in order to obtain compensation that is currently owed to me under the laws of Canada. Such an imposition is completely uncalled for and has no place in laws abiding society. Such unfair and one-sided conditions make your proposal unacceptable to me.

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17 On October 6, 2008, Danielle Auclair, Manager, Regional Representation Services for the respondent, replied to the complainant indicating that she had reviewed the proposed MOA and that she endorsed Ms. Ladurantaye’s position. She also informed the complainant that he was free to appeal her decision to the respondent’s president.

18 The complainant appealed Ms. Auclair’s decision. On November 7, 2008, Michèle Demers, President of the respondent, replied to the complainant. The letter contained the following:

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Up to the time of your resignation and retirement, we had taken action to the fullest extent within our mandate on all remaining issues you asked us to represent you on. We grieved the performance reports and followed up on your requests for accommodation and training and grieved your suspension and letter of discipline. Representing you regarding the performance reports was critical as these could have led to a possible demotion as the department was of the strong opinion that you were not performing at the CS 3 level. The fact that you have resigned significantly changes the reasonableness of our representation and the requirement for our interventions on the performance and disciplinary letter issues as they have become moot and are not adjudicable. Subsequent to your retirement we pursued the settlement of the grievance which affected you financially and obtained reinstatement of the lost pay and benefits.

With a view to resolve some of your concerns regarding what appear to you to be the one-sided contents of the draft settlement, I have determined that the only improvement we could attempt to make to the memorandum of settlement would be to add the rescinding of the performance reports and the letter of discipline dated August 13 in return for the withdrawal of those grievances despite the fact that you have retired. The rest would remain unchanged. Should the department refuse to make the recommended modifications, I will uphold Ms. Auclair’s decision, because I believe that we will have represented you to the best of our abilities and will have fulfilled our responsibilities to the extent possible…

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19 In a November 28, 2008 letter to the complainant, Ms. Ladurantaye informed him that the employer was willing to have more discussions to attempt to resolve the complainant’s outstanding grievances and asked the complainant to confirm that the proposed improvements would satisfy him.

20 On December 2, 2008, the complainant replied to Ms. Ladurantaye and informed her that he was refusing the proposed settlement. His email contains the following:

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2. You have already been advised of my position on this matter via refs. 6 and 7 which was written in response to refs. 4 and 5.

3. The position taken by you in refs. 8 and 9 does not differ in any substantial manner to those taken by you in earlier correspondence. To state it very mildly, I believe that your position is “ultra vires”.

4. The following are a few of the issues that need to be addressed by you among many issues that have been brought to your attention:

4.1. Violations of my rights including but not limited to human rights.

4.2. Harassment.

4.3. False performance appraisals,

4.4. Compensation for overtime work done.

4.5. Forced resignation and retirement.

4.6. Financial compensation for all damages and losses suffered by me including but not necessarily limited to my my [sic] mental and physical health.

5. I reiterate that it is your duty and responsibility to protect me, represent me, and fight for my rights. I further reiterate that you are attempting to coerce me through refs. 1, 3, 4, 5, and 8 into signing a one-sided agreement that has no legal place in the grievance process and which is clearly engineered to nullify all my legitimate rights to obtain redress under the applicable laws.

6. I once again call upon you to take action to the FULLEST extent permitted by the law, without any further delay, in order to ensure that I am fully compensated financially and otherwise for the hardship, suffering, and any and all damages that have been inflicted upon me by one or more rogue representatives of my employer, the Public of Canada.

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21 On January 8, 2009, Ms. Demers replied to the complainant’s letter of December 2, 2008 and informed him that the respondent acknowledged that the complainant was “[n]ot interested in attempting to further negotiate the terms of the proposed MOA, regarding the settlement of all outstanding grievances” and that, as a result, the respondent was withdrawing its representation for all five grievances.

22 The complainant responded to Ms. Demers on the same day in an email that contains the following:

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2.1. It is extremely inappropriate and reprehensible on your part to demand that I sign any so-called “Memorandum of Agreement”.

2.2. It is your duty and responsibility as my representative to follow the process laid down in the legislation, regulations made thereunder, agreements, etc., as applicable, to address any work place related problems including, but not necessarily limited to, grievances.

2.3. It is your duty and responsibility to pursue all workplace related matters to the fullest extent permitted under the applicable legislation, regulations made thereunder, agreements, etc.

2.4. I am not obliged to sign any so-called “Memorandum of Agreement” or participate in any process that is NOT required by the applicable legislation, regulations made thereunder, agreements, etc. I do NOT believe that my signing or participation in any manner whatsoever in the matter of the so-called “Memorandum of Agreement” is required by the applicable legislation, regulations made thereunder, agreements, etc.

2.5. Therefore, I will not be signing or participating in the matter of the so-called “Memorandum of Agreement” with the representatives of the employer.

3. You are hereby requested to pursue and prosecute all grievances to the fullest extent permitted by the applicable legislation, regulations made thereunder, agreements, etc., without any further delay.

4. You are hereby requested to pursue and prosecute the following issues to the fullest extent permitted by the applicable legislation, regulations made thereunder, agreements, etc., without any further delay.

4.1. Violations of my rights including but not limited to human rights (including but not necessarily limited to the outright and blatant refusal by the employer to provide accommodation to me).

4.2. Harassment in the work place.

4.3. Blatantly false performance appraisals.

4.4. Compensation for overtime work done.

4.5. Forced resignation and retirement.

4.6. Financial compensation for all damages and losses suffered by me including but not necessarily limited to my my [sic] mental and physical health.

4.7. Any and all other issues that I have brought to your attention.

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23 On February 5, 2009, Ms. Demers replied to the complainant’s letter in the following manner:

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Please be advised that you are correct in your assertion that you do not have to sign the Memorandum of Settlement. Given your refusal to consider participating in further discussions on a global resolution of all your issues, most of which are not adjudicable, we believe that we have represented your interests to the fullest extent possible. We believe we can obtain a remedy far better than what we estimate you can obtain via the internal grievance process for the non adjudicable issues and the full corrective action that could be granted by an adjudicator on the grievance which is adjudicable.

Your refusal to entertain further negotiations on the MOU is preventing us from attempting to obtain the complete removal of the performance appraisals from your file which is the best outcome you could hope for. We believe that this may be obtainable should we go back however, your refusal has closed the door to this possibility.

Regarding specific issues you raised once again in your latest letter let me reiterate our position:

4.1     It is our position that we were representing you on the issue of accommodation when you voluntarily retired.

4.2     You pursued a harassment case which we were not involved in and since you have retired, we believe that the matter is moot.

4.3     At the time you retired, we were representing you regarding these issues and were in discussions to have them removed from your file via the MOU however, you refuse to entertain these discussions with us.

4.4     Overtime – you have never raised these issues with us

4.5     It is our position that you retired voluntarily.

4.6     You have never requested us to represent you on a mental or physical health issue aside from your accommodation issue. You have never requested that we represent you on such a compensation issue.

As indicated to you in my January 8, 2009 letter, we will advise the department that we are withdrawing our representation on these issues. You are free to pursue them at your own risk and cost.

24 On February 19, 2009, Ms. Ladurantaye sent a letter to the employer, advising it that the respondent would no longer represent the complainant, and on April 15, 2009, the complainant filed this complaint against the respondent.       

III. Summary of the arguments

A. For the complainant

25 The complainant reproached the respondent in several ways. He contended that the respondent failed in several ways to carry out its duty of fair representation with respect to different workplace-related issues for which he allegedly asked the respondent for representation.

26 The complainant substantiated his submissions in an email dated October 28, 2009, which he sent in reply to the respondent’s response to the complaint. The following excerpt outlines his main contentions:

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3.3. BLACKMAIL BY THE RESPONDENT:

3.3.1. Blackmail has been defined as follows:

“TO FORCE OR COERCE INTO A PARTICULAR ACTION, STATEMENT, ETC.”

3.3.2. One of the most egregious violations committed by Respondent (Union, PIPSC) is its attempt to BLACKMAIL me into signing an agreement, that not only completely deprived me of all recourse against those Employer’s representatives who were ill-treating me, but also completely DEPRIVED me of the right to bring a complaint against the Respondent (Union, PIPSC) before an investigative body such as yourself. The Respondent attempted to ENFORCE this blackmail by THREATENING to withdraw representation if I did not sign the said agreement as PRESENTED to me by it. If the Respondent had succeeded in its blackmail attempt, I would have had no grounds whatsoever, even to make a complaint against it. The nature of the Respondent’s violation will be made even more clear in the following discussion:

3.3.3. The agreement, ref. 5, states the following:     

3.3.3.1. “By signing this Agreement, the grievor, on behalf of himself, his heirs, executors, administrators, successors and assigns, releases and forever discharges Her Majesty the Queen in Right of Canada, her officers, servants, agents, and employees, from all damages, liability, costs, expenses, claims, complaints, grievances, causes of action, and any other matters or proceedings of any kind or nature whatsoever in law, in equity or otherwise existing up to the present time or which are now known, anticipated, or unknown but which may arise in the future arising out of or connected to his present employment with the Department of National Defence.”.

3.3.3.2. “No party admits to any wrongdoing or liability.”.

3.3.3.3. “The parties agree that this agreement constitutes full and final settlement of all the matters referred to herein.”. 

3.3.3.4. The aforementioned clauses have the effect of absolving the rogue Representatives of my former Employer, the Public of Canada, of any culpability for ill-treating me and the Respondent (Union, PIPSC) from its SACRED duty to defend those who are being mistreated in the work place, such as myself, to the fullest extent of the law.

3.3.3.5. The covering message, namely, ref. 4, to which the aforementioned egregious agreement, namely, ref. 5, was attached, states the following:

3.3.3.6. “........ you are entitled to make representation on your own behalf and should you not respond and reject this offer for settlement, I will accept this as your decision and closed our files....... . Additionally, I will advise the Employer that you will be representing yourself in these matters and to contact you directly”.

3.3.3.7. Clearly, the above statement in a thinly veiled THREAT of withdrawal of ALL representational services should I not comply with the Respondent’s demand that I sign the agreement which was presented to me by the Respondent (Union, PIPSC) as a “fait accompli’’. It should be apparent to any observer, that the Respondent was colluding with certain rogue Representatives of my Employer, in the preparation of the agreement and the attempt to COERCE me into signing it. Needless to say, the sided agreement that had the effect of depriving me of ALL the rights provided to me under the applicable laws.

3.4 FAILURE BY RESPONDENT TO UPHOLD THE COLLECTIVE BARGAINING AGREEMENT (CBA):

3.4.1. Another egregious violation committed by the Respondent (Union, PIPSC), was the fact it had violated the terms and conditions of the Collective Bargaining Agreement (CBA) that it was bound to comply with as well as uphold and enforce in the work place. The Respondent should be perfectly aware of the fact that the CBA contains a procedure through which work place grievances must be resolved. All grievances have to go through several steps including the final step which is adjudication by yourself wherever applicable. The Respondent had not right to ABANDON the process contained in the CBA without the consent of the aggrieved party and, instead, attempt to force the aggrieved party to sign an agreement against the will of the aggrieved party using the threat of withdrawal of representational services. The Respondent has thus violated the terms of the CBA.

3.5. UNFAIR AND ARBITRARY WITHDRAWAL OF REPRESENTATION:

3.5.1. Yet another violation is the unfair and arbitrary withdrawal of representational services for pending grievances, particularly, when such grievances dealt with ILLEGAL suspension and denial of compensation by certain rogue Representatives of my former Employer, the Public of Canada. The Respondent should also be perfectly aware of the fact that such grievances are subject to adjudication by you. The Respondent has thus failed to comply with the terms of the CBA in more ways than one. It should be noted that the Respondent is being funded by resources that belong to the Public of Canada and it cannot expend these resources in an arbitrary manner. It is very strictly accountable for its use of these resources in a fair manner. By arbitrarily and unjustly denying me representational services, the Respondent is in serious violation of its duty under the law and under the principles of natural justice.

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3.7. FAILURE BY THE RESPONDENT TO PROVIDE FAIR REPRESENTATION:

3.7.1. In para. 4 of ref. 3, the Respondent (Union, PIPSC), makes the claim that it has provided fair representation to me. The above discussion should demonstrate very clearly that the Respondent has singularly failed in its duty to provide fair representation to me. The Respondent, apart from producing irrelevant references and making false statements, has not any provided ANY proof whatsoever of its having carried out its duty to me. Its claim is therefore patently FALSE.

3.8.    FALSE CLAIM BY RESPONDENT OF VOLUNTARY RETIREMENT:

3.8.1. In para. 5 of ref. 3, the Respondent (Union, PIPSC), makes the FALSE statement that I had voluntarily retired from the Public Service of Canada. Nowhere have I stated that I am resigning “voluntarily”.

3.8.2. As a matter of fact, the patent FALSITY of this statement can be seen from the very documents contained in the so-called “Appendix” to ref. 3 provided by the Respondent. One of these documents, namely, the document titled “Notice of Resignation/Retirement” clearly states that I have been FORCED to DISCONTINUE my employment. The reasons for these have been stated in no uncertain terms therein. These reasons include unfair and discriminatory practices against me, bullying, denial of mandatory training, arbitrary denial of leave, harassment, and other forms of ill-treatment in the work place. The said notice was also signed by an authorised representative of my Employer. At no time have I withdrawn the said notice.     

 3.8.3. My forced termination of employment was in no small part due to the lack of support and representation from the Respondent against the various abuses that I was subjected to, all of which had been notified to it promptly. Instead of supporting me, the Respondent clearly sided with certain rogue Representatives of my former Employer, the Public of Canada, and attempted to blackmail me into signing a one-sided agreement that merely protected itself and the rogue Representatives of my Employer.

3.8.4. It is my position that I was constructively dismissed from my employment with the Public Service of Canada.

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3.9. RESPONDENT’S POSITION ON RESIGNATION/RETIREMENT A VIOLATION OF RIGHTS OF PUBLIC SERVANTS:

3.9.1. Again, in para. 5 of ref. 3, the Respondent (Union, PIPSC) is clearly attempting to absolve itself of its responsibility to provide fair representation by using the rather specious argument that I voluntarily retired “without prior discussion or consultation with the Respondent”.

3.9.2. There is no provision in the Collective Bargaining agreement (CBA) or any law or the land that enjoins a Public Servant to resign or retire only after discussing or consulting this with a union or with any other body. Clearly, the position of the Respondent violates the rights of Public Servants. Such a position is clearly “ultra vires”.

3.10. FAILURE BY RESPONDENT TO TAKE ACTION WHEN ADVISED OF FORCED TERMINATION OF EMPLOYMENT:

3.10.1. Again, the Respondent’s (Union, PIPSC) statement in para. 5 of ref. 3 that I voluntarily retired “without prior discussion or consultation with the Respondent” is clearly an afterthought. The Respondent was informed at the same time as the Employer … that I was resigning. On receiving my notification, the Respondent, however, never breathed a word about my having retired “without prior discussion or consultation”.

3.10.2. Also, the Respondent never advised me on hearing of my forced resignation that it was premature, never came forward with an alternative course of action, and never ever proposed to take action against the rogue Representatives of my former Employer, the Public of Canada.

3.10.3. Furthermore, it is the responsibility of the Respondent to provide fair representation and to protect my rights regardless of whether I was dismissed, constructively dismissed, or forced to resign from employment. It is indicative of a highly irresponsible, immoral, and unethical attitude on the part of the Respondent to use my employment situation in an attempt to absolve itself of its responsibilities under the CBA, related legislation, and the principles of natural justice.   

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3.15. ADDITIONAL FAILURES AND IMPROPRIETIES ON THE PART OF THE RESPONDENT:

3.15.1. The Respondent has seriously failed to protect me in several other matters including violation of human rights, discriminatory treatment in the work place, and other issues in spite of being requested in writing to do so. I do have documentation to support this and reserve the right to produce this documentation at appropriate times during the investigation against the Respondent.

3.15.2. I believe that the actions of the Respondent were due to ulterior motives on its part. There is documentation to indicate the causes of these motives which will also be produced at the appropriate time.

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[Sic throughout]

27 The complainant substantiated the alleged “ulterior motives” of the respondent in his submissions filed January 25, 2010. The complainant referred to events that occurred in 2005 when he was acting as a steward of the respondent. He explained that he intervened in his capacity as a steward and undertook recourses under the Canada Labour Code on behalf of members of the bargaining unit. The complainant alleged that his intervention led the employer to make a complaint against him. The complainant further stated that “[t]he Respondent’s president, Ms. Michele Demers, then engineered a bogus complaint against the Complainant … ” The complainant stated that the complaint was investigated and that he was absolved but that, despite the fact that the complaint was found to be without any basis, Ms. Demers removed him from his position as a steward. The complainant stated that he then made a complaint against Ms. Demers with the Board of Directors of the respondent in which he requested that Ms. Demers’ actions be investigated. He also filed a resolution at the annual meeting of the General Body of the respondent in November 2007 requesting an independent investigation of Ms. Demers’ conduct.

28 In his submissions, the complainant contended the following:

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REGARDLESS of the outcome of the complaint and resolution against the actions of the Respondent’s President, it should be clear that the denial of representational services to the Complainant was NOT a mere COINCIDENCE because it took place during the tenure of its President, Ms. M. Demers against whose actions, the Complainant had filed complaints.

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29 He further submitted the following:

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18. In the light of the above, the following should be apparent:

18.1. That the Respondent’s withdrawal of representational services Complainant are clearly MALA FIDE.

18.2. They are based on ulterior motives.

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B. For the respondent

30 The respondent submitted that the complainant had the burden of proving that it failed to fulfill its duty of fair representation and that the complainant failed to discharge that burden.

31 The respondent contended that it carried out its duty of fair representation in all the complainant’s workplace issues, including the grievances that he filed.

32 The respondent indicated that the complainant had voluntarily retired from the public service and that he did not consult with its representatives before making his decision. The respondent contended that it had handled several grievances on the complainant’s behalf before his resignation and that it pursued those grievances beyond the complainant’s notice of retirement.

33 The respondent submitted that the MOA it negotiated with the employer was a good settlement, that it even went further by convincing the employer to improve the offer of settlement and that its decision to withdraw representation was made “[a]s a result of serious consideration and reconsideration of [the complainant’s] file by various Institute representatives.” It further contended that its representatives had “[a]cted fairly and reasonably in light of existing jurisprudence and the particular circumstances of the Complainant’s case.” The respondent also insisted that, despite its withdrawal of representation, the complainant was free to pursue his grievances on his own behalf.

34 In its additional submissions filed on January 25, 2010, the respondent added the following:

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As indicated in our October 14, 2009 submissions, the burden of proof rests on the Complainant to establish that the bargaining agent has acted in a manner that is arbitrary, discriminatory or in bad faith. The Board has consistently taken this position under both the Public Service Staff Relations Act (see Miller and PSAC 2003 PSSRB 85) and under the Public Service Labour Relations Act (see Ouellett v. St-Georges and PSAC 2009 PSLRB 107; Hayes v. Tuffin 2009 PSLRB 131; Tench v. CAPE 2009 PSLRB 154).

The Board has also held in Paulik and PIPSC, Board file 161-2-792 that a bargaining agent does not breach its duty of fair representation when it recommends that an offer of settlement be accepted when it deems such settlement to be a reasonable response to the circumstances of the case.

Furthermore, a bargaining agent’s decision not to pursue a grievance is not a breach of the duty of fair representation if the decision is not taken in an arbitrary manner and made in good faith without discrimination: Kowallsky v. PSAC et al. 2007 PSLRB 30.

As indicated in our submissions dated October 14, 2009, the bargaining agent did undertake several grievances on behalf of the Complainant and pursued these grievances beyond his notice of retirement and the decision to withdraw representation to the Complainant came as a result of serious consideration and reconsideration of his file by various Institute representatives. The Respondent submits that Employees do not have an absolute right to be represented by their bargaining agent in the grievance process: Richard v. PSAC 2000 PSSRB 61.

The Respondent also submits that the Complainant could have proceeded on his own with his grievances as the grievances do not require the support of the Respondent.

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[Sic throughout]

IV. Reasons

35 The respondent has a duty of fair representation toward all its members. Section 187 of the Act sets out this duty in the following terms:

187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

36 By defining a breach of the duty of fair representation, section 187 of the Act also sets out the scope of the Board’s jurisdiction over an allegation of unfair representation. The Board must determine whether the bargaining agent, in its representation of the member involved, acted in bad faith or in a manner that was otherwise arbitrary or discriminatory. The Board does not sit on appeal of decisions made by a bargaining agent, and its mandate is not to determine whether the bargaining agent’s decisions were correct. The Board’s jurisdiction is limited to determining whether the bargaining agent acted within the parameters of section 187 of the Act.

37 The duty of fair representation is not unique to the bargaining agents in the public service labour environment. It is a fundamental principle in labour relations legislation across Canada. The duty of fair representation does not mean that members of the bargaining agent have an absolute right to representation or that they have the final say with respect to the manner in which the bargaining agent carries out its obligations in their cases. The bargaining agent is allowed a fair amount of discretion in deciding whether to file a grievance, to refer it to adjudication or arbitration or to represent a member in the grievance process. It also has fairly broad discretion in determining how to handle a grievance and when to settle it. The parameters that circumscribe the bargaining agent’s duty of fair representation were well enunciated by the Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509 at 527:

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The following principles, concerning a union’s duty of representation in respect of a grievance, emerge from the case law and academic opinion consulted.

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.

4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

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38 Although those principles were enunciated in the context of the bargaining agent’s discretion to file a grievance and refer it to arbitration, they serve as a guide for all aspects of the bargaining agent’s duty of fair representation.

39 The Board has applied those criteria on numerous occasions. In Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107, the Board outlined its role in the following manner:   

…

30.     … Thus, the Board’s role is not to examine on appeal the bargaining agent’s decision of whether to file a grievance or to refer it to adjudication but rather to evaluate the manner in which it handled the grievance. In other words, the Board rules on the bargaining agent’s decision-making process and not on the merits of a grievance or complaint. That said, it is often necessary to review the facts to determine whether the bargaining agent’s decision-making process reflects the value and seriousness of a given case.

31.     In a complaint under section 187, the grievor bears the onus of presenting evidence sufficient to establish that the bargaining agent failed to meet its duty of fair representation.

32.     Moreover, the bargaining agent’s duty of fair representation assumes that the grievor takes the necessary measures to protect his or her own interests. He or she must inform the bargaining agent of his or her willingness to file a grievance and act within the time limits set out in the collective agreement. He or she must collaborate with the bargaining agent by providing the information required to prepare his or her case and follow the bargaining agent’s advice on how to behave during the grievance process. If the grievor neglects any of those things, he or she risks the Board dismissing the complaint. The Board will not usually allow a complaint where the bargaining agent obtained a reasonable settlement that the complainant subsequently rejected.

…

39.     In short, the bargaining agent’s obligation is to carry out its duty of representation in a reasonable manner, taking into account all the related facts, investigating the situation, weighing the conflicting interests of the employee, drawing considered conclusions as to the potential outcomes of the grievances and then informing the employee of its decision on whether to pursue the grievance.

…

40 The Board has often reiterated that an employee does not have an absolute right to be represented by his or her bargaining agent and that he or she cannot dictate the extent of the representation or the manner in which the bargaining agent handles the grievance. In the same vein, a disagreement with one’s bargaining agent does not amount to a breach of the duty of fair representation ( see Martel et al. v. Public Service Alliance of Canada, 2009 PSLRB 16; and Boshra v. Canadian Association of Professional Employees, 2009 PSLRB 100). In Bahniuk v. Public Service Alliance of Canada, 2007 PSLRB 13, the Board expressed the following on the extent to which a member can dictate a bargaining agent’s actions:

…

[69]    In summary, Mr. Bahniuk makes a number of extreme allegations against the bargaining agent, including collusion with the employer to undermine him, which are not supported by the evidence. Further, the duty of fair representation does not require the bargaining agent to take the direction of individual members when deciding what grievances to pursue, when to negotiate extensions of times and what grievances to settle. Finally, an individual member of a bargaining agent has the right to representation, but that is not an absolute or unlimited right. It does not mean, for example, that the member can insist that the bargaining agent provide a representative whenever he wants one. As long as the bargaining agent is not arbitrary or discriminatory or acting in bad faith when it exercises its judgment in these matters, it is entitled to distribute the limited resources of the organization in a reasoned fashion.

…

41 With respect to the decision not to refer a grievance to adjudication or to settle a grievance, the principles that should guide the Board were well summarized as follows in Nowen et al. v. UCCO-SACC-CSN, 2003 PSSRB 98:

…

[68]    Bargaining agents and their representatives are given fairly wide latitude in the settlement of grievances (Richard and Public Service Alliance of Canada, 2000 PSSRB 61 and Lipscomb and. [sic] Public Service Alliance of Canada, 2000 PSSRB 66. [sic] In Trade Union Law in Canada (MacNeil, Lynk and Englemann), the principle is summarized as follows:

A union which fully turns its mind to the grievance, after having made a thorough investigation, and concludes that it should not be arbitrated because it believes there is little likelihood of success will have fulfilled its obligations, even if a board might have reached a different conclusion. [para. 7.480]

[69]    The question for me to decide is not whether I agree with the bargaining agent’s assessment that the grievance settlement was better than what it could achieve at adjudication, but whether it acted in bad faith, discriminatorily or arbitrarily in coming to that assessment…

…

42 In International Longshore and Wharehouse Union, Ship and Dock Foremen, Local 514 v. Empire International Stevedores Ltd., [2000] F.C.J. No. 1929 (C.A.)(QL), the Federal Court of Appeal stated that, to prove a breach of the duty of fair representation, “… the member must satisfy the Board that the union’s investigation into the grievance was no more than cursory or perfunctory.”

43 Applying those principles to this case, I conclude that the complainant has not established that the respondent breached its duty of fair representation.

44 I will start by commenting on the resignation of the complainant, which became a material element in the orientation taken by the respondent.  

45 In July 2008, the complainant decided to resign from his employment. Subsequently, the complainant alleged that he had been constructively dismissed and requested that the respondent take action on that issue (December 2, 2008 and January 8, 2009 emails).

46 When the complainant decided to resign, he chose not to seek advice or support from the respondent for his decision. The documentary evidence shows that the employer had concerns with the reasons stated in the complainant’s notice of resignation and that it urged the complainant to reconsider his decision to resign and to consult with his bargaining agent. In an email sent to the complainant on July 16, 2008, Ms. Ladurantaye invited him to further discuss his decision to resign. The complainant replied to the employer and to the respondent on July 17, 2008, clearly reiterating his decision to resign.

47 Although the complainant stated in his notice that his resignation was justified by what he perceived as faulty management and unfair treatment by his employer, he did not file a grievance or undertake any other recourse against the employer in relation to his resignation, and he did not request that the respondent do so on his behalf.  

48 The bargaining agent’s duty of fair representation does not extend to presuming that a member who has resigned or retired wants to take subsequent recourses against the employer on the grounds of alleged constructive dismissal. The employee has a responsibility to inform the bargaining agent of his or her desire to file a grievance or to undertake another action. It must also be added that the complainant could have filed a grievance on that matter on his own initiative, without the support or consent of the bargaining agent. As the Board stated in Ouellet:

…

32.     … the bargaining agent’s duty of fair representation assumes that the grievor takes the necessary measures to protect his or her own interests. He or she must inform the bargaining agent of his or her willingness to file a grievance and act within the time limits set out in the collective agreement…

…

49 The complainant also alleged that his “… forced termination of employment was in no small part due to the lack of support and representation from the Respondent against the various abuses that [he] was subjected to … ” With respect, the evidence does not show a lack of support from the respondent. On the contrary, when the complainant resigned, the respondent was quite active in representing him in grievances and other employment-related issues.

50 I will now discuss the respondent’s actions and decisions with respect to the negotiation of a settlement of the complainant’s outstanding grievances and the subsequent withdrawal of representation.  

51 At the time of the complainant’s resignation, the respondent was representing him on several issues, among which were five grievances. Three of those grievances were about performance appraisals, one about a disciplinary letter and one about a one-day suspension. The respondent was also representing the complainant on accommodation issues.

52 The complainant’s resignation made the respondent reassess the merits of the grievances and the accommodation issue. The respondent estimated that the accommodation issue was moot considering that the complainant was no longer in the work environment. As far as the grievances were concerned, Ms. Demers’ November 7, 2008 letter to the complainant outlined as follows the respondent’s evaluation of the merits of the grievances:

…

Up to the time of your resignation and retirement, we had taken action to the fullest extent within our mandate on all remaining issues you asked us to represent you on. We grieved the performance reports and followed up on your requests for accommodation and training and grieved your suspension and letter of discipline. Representing you regarding the performance reports was critical as these could have led to a possible demotion as the department was of the strong opinion that you were not performing at the CS 3 level. The fact that you have resigned significantly changes the reasonableness of our representation and the requirement for our interventions on the performance and disciplinary letter issues as they have become moot and are not adjudicable. Subsequent to your retirement we pursued the settlement of the grievance which affected you financially and obtained reinstatement of the lost pay and benefits.

…

53 Based on its assessment of the situation, the respondent held discussions with the employer about the one-day suspension grievance and obtained a solution that it thought corresponded to the maximum benefit that the complainant could have achieved through adjudication. Thus, the respondent recommended that the complainant agree to sign an MOA that provided for the withdrawal of the one-day suspension and the reinstatement of pay for that day. The proposed MOA also indicated that all five outstanding grievances were deemed withdrawn, and it contained discharge clauses that prevented any other disputes between the parties about the complainant’s employment with the employer. 

54 The complainant was not satisfied with the proposed settlement. First, he did not believe that the MOA offered him a satisfactory resolution to his outstanding grievances, and he refused to sign an MOA that would prevent him from taking further recourses against the employer and the respondent. The complainant also estimated that the respondent had not pursued all the issues that it should have pursued to protect his interests and to obtain compensation for the employer’s faults.

55 Acknowledging that the complainant was not satisfied with the proposed MOA, the respondent’s president offered to pursue discussions with the employer to improve the offer of settlement. In her November 7, 2008 letter to the complainant, Ms. Demers outlined as follows the improvements that she was willing to seek:

…

With a view to resolve some of your concerns regarding what appear to you to be the one-sided contents of the draft settlement, I have determined that the only improvement we could attempt to make to the memorandum of settlement would be to add the rescinding of the performance reports and the letter of discipline dated August 13 in return for the withdrawal of those grievances despite the fact that you have retired. The rest would remain unchanged. Should the department refuse to make the recommended modifications, I will uphold Ms. Auclair’s decision, because I believe that we will have represented you to the best of our abilities and will have fulfilled our responsibilities to the extent possible…

…

56 On November 28, 2008, Ms. Ladurantaye informed the complainant that the employer was willing to discuss further and requested that the complainant indicate if the proposed improvements would be satisfactory. On December 2, 2008, the complainant replied that the proposed improvements would not satisfy him. He further requested that the respondent represent him on additional issues.

57 On January 8, 2009, Ms. Demers informed the complainant that, as a result of his position, the respondent would withdraw its representation on all outstanding grievances. The complainant replied to Ms. Demers on January 8, 2009. He reiterated his opposition to the respondent’s position and requested that the respondent continue to represent him on the outstanding grievances and on other issues:    

…

3. You are hereby requested to pursue and prosecute all grievances to the fullest extent permitted by the applicable legislation, regulations made thereunder, agreements, etc., without any further delay.

4. You are hereby requested to pursue and prosecute the following issues to the fullest extent permitted by the applicable legislation, regulations made thereunder, agreements, etc., without any further delay.

4.1. Violations of my rights including but not limited to human rights (including but not necessarily limited to the outright and blatant refusal by the employer to provide accommodation to me).

4.2. Harassment in the work place.

4.3. Blatantly false performance appraisals.

4.4. Compensation for overtime work done.

4.5. Forced resignation and retirement.

4.6. Financial compensation for all damages and losses suffered by me including but not necessarily limited to my my [sic] mental and physical health.

4.7. Any and all other issues that I have brought to your attention.

…

58 Ms. Demers’ reply of February 5, 2009 demonstrates that the respondent took a very different view of its obligations for those issues:

…

Regarding specific issues you raised once again in your latest letter let me reiterate our position:

4.1.    It is our position that we were representing you on the issue of accommodation when you voluntarily retired.

4.2     You pursued a harassment case which we were not involved in and since you have retired, we believe that the matter is moot.

4.3     At the time you retired, we were representing you regarding these issues and were in discussions to have them removed from your file via the MOU however, you refuse to entertain these discussions with us.

4.4     Overtime – you have never raised these issues with us

4.5     It is our position that you retired voluntarily.

4.6     You have never requested us to represent you on a mental or physical health issue aside from your accommodation issue. You have never requested that we represent you on such a compensation issue.

As indicated to you in my January 8, 2009 letter, we will advise the department that we are withdrawing our representation on these issues. You are free to pursue them at your own risk and cost.

59 It is quite apparent from that exchange of correspondence that the parties’ standpoints were irreconcilable. However, the fact that the parties were in profound disagreement does not imply that the respondent failed to meet its duty of fair representation. I reiterate that the Board’s role is not to determine whether it agrees or disagrees with the bargaining agent’s decisions but whether the evidence supports a conclusion that the bargaining agent acted in bad faith or in a manner that was arbitrary or discriminatory.

60 The respondent’s handling of the complainant’s employment-related issues and grievances involved different actions, including the following:

• the respondent reassessed the complainant’s grievances and other related issues in the context of his resignation and sought resolution for the grievances that it thought were adjudicable;
• it concluded a settlement with the employer that provided for the withdrawal of the one-day suspension letter and the reimbursement of pay and benefits for that day in exchange for the withdrawal of all outstanding grievances and a discharge clause that would prevent any other disputes between the complainant and the employer;
• it recommended that the complainant accept the proposed settlement and sign an MOA outlining the terms of settlement and indicated that it would cease to represent him if he did not agree to sign the MOA;
• it pursued further discussions with the employer to obtain improvements to the MOA, namely, the withdrawal of the grieved performance appraisals;
• it informed the complainant that it would not represent him on the additional issues to which he referred, namely, allegations of harassment, claims of overtime, mental or physical health issues, and an allegedly forced resignation; and
• it finally withdrew its representation for the five outstanding grievances.

61 I find no support for a conclusion that the respondent acted in bad faith or in a manner that was arbitrary or discriminatory in its handling of the complainant’s cases.

62 I will start by saying that the evidence does not support any assertion that the respondent’s decision were tainted by bad faith or that they were motivated by discriminatory considerations, by animosity or hostility toward the complainant, or by any other irrelevant considerations. The complainant made serious allegations that the respondent’s actions were motivated by ulterior motives related to his dispute about Ms. Demers’ conduct. Those allegations are simply not supported by the evidence.     

63 Nor do I consider that the respondent acted in an arbitrary manner. After the complainant’s resignation, the respondent reassessed the complainant’s grievances and their possible outcomes in light of the discontinued employment relationship. Nothing leads me to conclude that the respondent’s assessment of the grievances was “cursory or perfunctory” or that the respondent’s representatives did not thoroughly analyze the situation.

64 The respondent’s representatives negotiated a settlement with the employer’s representatives and recommended that the complainant accept the proposed settlement. The fact that the complainant was not satisfied with the proposed settlement does not imply that the respondent’s recommendation was arbitrary. Before concluding and recommending the proposed MOA, the respondent analyzed the situation and pondered all relevant considerations, including the merits of the grievances in the context of the complainant’s resignation. The grievances and the proposed MOA were analyzed by three different representatives, including the manager of Regional Representations Services and the respondent’s president. To alleviate the complainant’s dissatisfaction with the proposed MOA, the respondent even had further discussions with the employer. The complainant may well believe that the proposed settlement was not satisfactory, but it cannot be said that the respondent took the complainant’s interest lightly or that it did not commit to finding an acceptable resolution of the outstanding issues. I will go further by saying that I see nothing unreasonable about the proposed MOA. The complainant strongly disagreed with the discharge clauses that it contained. He was free to refuse to sign it, and I do not want to express an opinion of his decision. However, I will say that discharge clauses are fairly standard and not uncommon in a context where the employment relationship is discontinued and where parties try to resolve all outstanding issues and at the same time prevent any other potential dispute.

65 I will now turn to the additional issues for which the complainant wanted the respondent to represent him. I already discussed the allegation of forced resignation. The evidence did not establish that the respondent was representing the complainant on issues of harassment in the workplace, overtime or health and safety issued other then the one relating to accommodation. Therefore, the respondent cannot be said to have acted in an arbitrary or discriminatory manner, or in bad faith, with respect to those issues.      

66 A word now on the respondent’s decision to withdraw its representation. It clearly appears from the exchange of correspondence between the complainant and Ms. Demers that the parties’ positions were irreconcilable. The complainant did not have an absolute right to representation, and the respondent estimated that it had represented the complainant’s interests to the fullest extent possible. Nothing leads me to conclude that, in the circumstances, the respondent’s decision to withdraw its representation was made lightly or that it was arbitrary or even unreasonable.

67 One final word. Despite the respondent’s decision to cease all representation, the complainant was not deprived from all recourses, and he was free to pursue his grievances himself.

68 In short, I conclude that the respondent did not fail to meet its duty of fair representation and that it did not handle the complainant’s grievances in a manner that was arbitrary or discriminatory or in bad faith. The same conclusion applies to the respondent’s decision to withdraw its representation. That decision was made after considerable efforts were made to resolve the complainant’s outstanding grievances in a manner that would satisfy him and after a thorough analysis of the possible outcomes through adjudication. It became clear that the parties’ perspectives and opinions about the proposed settlement and about the extent of the respondents’ duties were irreconcilable and, in the circumstances, the respondent’s decision to withdraw representation was far from unreasonable.

69 For all of the above reasons, the Board makes the following order:

V. Order

70 The complaint is dismissed.

March 26, 2010.

Marie-Josée Bédard,
Vice-Chairperson