FPSLREB Decisions

I. Complaint before the Board

1  On October 31, 2010, Nizar Hajjage (“the complainant”) filed a complaint against Betty Bannon and the Union of Taxation Employees (UTE) (“the respondents”). UTE is a component of the Public Service Alliance of Canada, the complainant’s bargaining agent. Ms. Bannon is the UTE’s national president. The complainant alleged that the respondents committed an unfair labour practice within the meaning of paragraph 190(1)(g) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”). The complainant wrote in his complaint that the respondents acted arbitrarily by refusing to respond to his emails or letters and by allegedly siding with the employer. The complainant requests that the respondents act reasonably and that they abide by the requirements of section 187 of the Act.

2 In section 4 of the complaint form, which comprises a concise statement of each act, omission or other matter complained of, the complainant wrote that the respondents acted arbitrarily and that they “failed to engage in a process of rational decision making as required by its mandate.” The complainant also questions why, on April 21, 2010, Shane O’Brien, a senior labour relations officer at the UTE, refused to respond to his communications. On that day, Mr. O’Brien wrote the following to the complainant: “Thank you for your input. As stated in earlier emails, I will no longer respond.”

3 The complaint involves the following provisions of the Act:

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190. (1) The Board must examine and inquire into any complaint made to it that

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(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

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185. In this Division, "unfair labour practice" means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

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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.

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4 On January 7, 2011, the respondents submitted that the complaint was untimely and that it should be dismissed on that basis. They also submitted that it failed to disclose a prima facie case. For the respondents, the issues specified in the complaint clearly fall outside the 90-day time limit prescribed by subsection 190(2) of the Act. That subsection reads as follows:

190. (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

5 After reviewing submissions received from the parties in January 2011, the Board’s registry invited them to “… submit additional written submissions dealing exclusively with the timeliness issue.” The Board’s registry also wrote in that same letter “… that the parties may file any additional relevant documentary evidence or refer to any relevant case law in support of their respective submissions.” The letter also mentioned that the Board member might decide the case based on those submissions and those already on file.

6 It should be noted that, contrary to the instructions given by the Board’s registry, a large part of the submissions from the parties dealt not with the timeliness issue but rather with the merits of the complaint. I will not summarize those submissions and the facts that they contained, as they are irrelevant to this decision, which deals exclusively with the timeliness objection raised by the respondents.

II. Summary of the facts on timeliness

7 The complainant was hired by the Canada Revenue Agency (“the employer” or CRA) for the period of December 3, 2007 to February 3, 2008. On January 14, 2008, the employer notified him that he was rejected on probation and that his last day of work would be January 25, 2008. The complainant unsuccessfully challenged his termination using the CRA staffing recourse mechanism. Later, on January 24, 2008, the complainant filed a grievance challenging his rejection on probation. He received representation and support from the respondents at the first, second and third levels of the grievance procedure.

8 At the fourth and final level of the grievance procedure, the respondents withdrew their support for the grievance. On March 10, 2010, Lyson Paquette, a UTE labour relations officer, wrote to the complainant, informing him why the respondents would no longer provide representation for his grievance. Ms. Paquette informed the complainant of his right to pursue the grievance on his own.

9 The complainant did not agree with the respondents’ decision to not represent him. On March 12, 2010, he wrote to the respondents to express his disagreement and to ask several questions. On March 15, 2010, Ms. Paquette replied. On March 24, 2010, the complainant wrote to Mr. O’Brien, alleging that the respondents and the employer were in collusion and requesting assistance for his fourth-level grievance hearing. On April 6, 2010, Mr. O’Brien had a discussion with the complainant. The same day, Ms. Paquette advised the employer that the respondents would not represent the complainant at the fourth level of the grievance procedure.

10 Between April 7 and 20, 2010, the complainant and Mr. O’Brien exchanged emails about the respondent’s decision to stop representing his grievance. On April 21, 2010, as stated in the complaint, Mr. O’Brien wrote to the complainant, stating that he would no longer respond to him. On April 29, 2010, the complainant wrote to Ms. Bannon to advise her that Mr. O’Brien had acted arbitrarily in representing him and had violated the Act.

11 According to the respondents, Ms. Bannon emailed the complainant on June 28, 2010, stating that there was nothing wrong with how he was being represented and that she would take no further action. In his submission, the complainant stated that he never received that email.

III. Summary of the arguments

A. For the complainant

12 The complainant argued that the Board must first consider subsection 190(1) of the Act before considering subsection 190(2). In this case, the respondents did not comply with subsection 190(1) before raising the timeliness issue.

13 The complaint is not untimely because it refers to issues that are not yet fully settled. The Board must also consider that the complainant did not wait many years before filing his complaint, and in that context, the issue of timeliness is of secondary importance. The Board has jurisdiction to establish when the triggering events took place. Therefore, the respondents’ timeliness arguments are baseless.

14 The complainant argued that the respondents never advised him of the 90-day time limit to file a complaint with the Board. The complainant questioned the reasonableness of the respondents accusing him of breaching a provision of a statute that they never informed him of. Even were the respondents’ timeliness arguments true, the complainant submitted that they should not be used to cover up the substance of his complaint.

15  A large part of the complainant’s submissions dealt with his claim that the respondents sided with the employer and that they did not perform their duty of fair representation. I will not summarize those submissions since they are irrelevant to the timeliness issue.

16 The complainant referred me to Panula v. Canada Revenue Agency and Bannon, 2008 PSLRB 4. He argued that, in Panula, the Board examined the merits of the complaint even though it determined that the complaint was untimely.

B. For the respondents

17 The respondents argued that the complaint refers to events that occurred before the 90-day time limit specified in the Act. The jurisprudence is clear that the 90-day time limit is mandatory and that the Board has no discretion to extend or modify it.

18  According to the complaint, the triggering event was an email from Mr. O’Brien dated April 21, 2010. That is clearly outside the 90-day time limit. The complainant claimed that his complaint deals with issues not yet fully settled. The fact that the complainant pursued his grievance on his own does not create an on-going matter for the purpose of determining the start of the 90-day time limit.

19 The complainant submitted that it was unreasonable of the respondents not to advise him of the 90-day time limit. He made no related inquiries.  The respondents submitted that it is reasonable to not provide such information if it is not requested.

20 A large part of the respondents’ submissions also dealt with the merits of the complaint. I will not summarize those submissions since they are irrelevant to the timeliness issue.

21 The respondents referred me to Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78.

IV. Reasons

22 This decision deals exclusively with the respondents’ objection that the complaint is untimely. In January 2011, the Board’s registry invited the parties to make submissions on timeliness. The Board’s registry informed the parties that the Board member could decide the case based on those submissions and those already on file. After reviewing the file and the submissions, I have determined that I have enough information to decide the objection raised by the respondents.

23 The Board has repeatedly found in its past decisions that it is without authority to extend the time limit for filing a complaint and that the 90-day time limit must be respected at all times. The Castonguay and Panula decisions, referred to by the parties, are part of those past decisions. In reference to the interpretation of subsection 190(2) of the Act, the Board, at paragraph 55 of Castonguay, wrote the following:

That wording is clearly mandatory by its use of the words “must be made no later than 90 days after the events in issue”. No other provision of the PSLRA gives jurisdiction to the Board to extend the time limit prescribed in subsection 190(2). Consequently, subsection 190(2) of the PSLRA sets a boundary, limiting the Board’s power to examine and inquire into any complaint that an employee organization has committed an unfair labour practice within the meaning of section 185 (under paragraph 190(1)(g)) of the PSLRA) and that is related to actions or circumstances that the complainant knew, or in the Board’s opinion ought to have known, in the 90 days previous to the date of the complaint.

24  The only possible discretion for the Board when interpreting subsection 190(2) of the Act is determining when the complainant knew, or ought to have known, of the action or circumstances that gave rise to the complaint. Contrary to the complainant’s arguments, the Board should not first examine a complaint’s validity (subsection 190(1)) and then consider its timeliness. Timeliness must come first. The only complaints that the Board should examine on their merits are those filed within the 90-day time limit.

25 The complainant signed his complaint on October 29, 2010, and the complaint was received at the Board on October 31, 2010. That means that the complaint must be based on actions or circumstances that the complainant knew of or ought to have known of by late July or early August 2010 or later. Actions or circumstances attributable to the respondents that occurred before late July or early August 2010 and that the complainant knew of could not have given rise to this complaint because they would be untimely.

26 In his complaint, the complainant specifically referred to the refusal by Mr. O’Brien on April 21, 2010 to respond to his communications. That incident is outside the 90-day time limit.

27 In his submissions, the complainant referred to Ms. Bannon’s email of June 28, 2010, which is also outside the 90-day time limit. Furthermore, the complainant submitted that he never received that email. If so, then that email cannot have given rise to the complaint.

28 The complainant also referred in his submissions to his disagreements with Mr. O’Brien and Ms. Paquette about their decision to not continue to represent him in his grievance. The last of those exchanges took place in April 2010. That is also outside the 90-day time limit.  

29 The complainant argued that the respondents should have advised him of the 90-day time limit in which to file a complaint with the Board. The respondents were not obliged to advise the complainant that he could file a complaint. Nor were they obliged to advise him that, according to subsection 190(2) of the Act, a complaint must be filed within 90 days of the day on which the complainant knew or ought to have known of the actions or circumstances that gave rise to it.

30 Finally, the complainant submitted that his complaint is not untimely because it refers to issues that are not yet fully settled. The complainant probably meant that his grievance with the employer about his rejection on probation was not yet settled. That is a different issue altogether with which the respondents are not involved since they withdrew their support in March 2010. The fact that the complainant’s grievance against his former employer has not yet been settled is irrelevant to this complaint, which involves representatives of a bargaining agent.

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

V. Order

32 The complaint is dismissed.

August 12, 2011.

Renaud Paquet,
Vice-Chairperson