FPSLREB Decisions

I. Background

1 On September 22, 2010, Susan Tsai (“the complainant”) filed a complaint against the Canada Employment and Immigration Union (CEIU) and Kathy Sand, a CEIU national representative (“the respondents”), under paragraph 190(g) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”).

2 The complainant alleges that the respondents breached their duty of fair representation by failing or refusing to represent her in a grievance in which she contested the termination of her employment with Human Resources and Skills Development Canada (HRSDC or “the employer”).

3 The respondents raised two preliminary objections, first that the complaint is untimely, and second, that it does not reveal an arguable case for any violations of the Act. They asked the Board to dismiss the complaint without a hearing.

4 The parties, as invited by the Board, filed detailed submissions dealing with both the timeliness issue and the merits of the complaint, as well as documentation supporting their respective positions.

5 The complainant commenced her employment with the HRSDC’s Citizen Services Branch on June 22, 2009 as a citizen services officer, a position classified PM-1. As is customary for most newly appointed public servants, the complainant was subject to a one-year probation.

6 Although the complainant’s employment originated with a term appointment that was eventually extended beyond the probation period, she was reminded by the employer on October 30, 2009 that all the provisions in her initial letter of offer of June 22, 2009 would continue to apply and particularly that the requirement for her services could be for a shorter period, depending on the availability of work and the continuance of the duties to be performed. She was again reminded by the employer on November 26, 2009 that her employment could be terminated during the probationary period were she unable to demonstrate competency in performing her work or were it determined that she was not suited for the position.

7 On January 18, 2010, the employer provided the complainant with a document entitled “Terms and Conditions of Employment,” which outlined work-related concerns the employer had about the complainant and that set out its clear expectations. The document was to be considered separate and apart from the Values and Ethics Code for the Public Service, contained in the complainant’s original letter of offer and was, according to the employer, a necessary measure in light of ongoing concerns with the complainant’s hours of work, behaviour and work performance.

8 On March 3, 2010, the complainant was informed that she was being rejected on probation, pursuant to subsection 62(1) of the Public Service Employment Act s.c. 2003, c. 22, ss. 12, 13,and that her employment with the HRSDC would end on March 31, 2010. She was further informed that the termination of her employment resulted from ongoing performance issues with the core competencies of her position of good communications, having a positive attitude and working with others.

9 On March 9, 2010, the complainant filed a grievance against the HRSDC, claiming that her termination was “… arbitrary, unfair and a sham for disguised disciplinary action.” It was filed with the CEIU’s support.

10 On June 23, 2010, the respondent Ms. Sand informed the complainant that the CEIU would no longer represent her with her grievance, stating that it had been determined after a thorough review of her file that her grievance was too weak for the CEIU to continue to provide representation.

11 On September 22, 2010, the complainant filed this complaint.

II. The timeliness issue

12 The respondents raised a preliminary objection to my jurisdiction on the basis that the complaint is untimely. Subsection 190(2) of the Act establishes the filing deadline for unfair labour practice complaints 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.

13 While the Board’s case law is clear that Board members are afforded no discretion to alter the 90-day deadline, I am still empowered to determine, based on the evidence before me, the date on which the 90-day period started.

14 In her complaint, the complainant often refers to events that occurred in January 2010 and even goes as far as to allege that the respondents’ inaction and lack of guidance at that time amounted to flagrant negligence. If she knew it then, her complaint was obviously untimely when she filed it. However, as suggested in her complaint form, the complainant’s knowledge of a violation of section 190 of the Act came much later, in June 2010.

15 On June 23, 2010, Kathy Sand, on behalf of the CEIU, wrote to the complainant, informing her that it would no longer represent her with her grievance. According to the answer provided by the complainant in item 5 of her complaint form, that was the date on which she knew of the act, omission or other matter giving rise to the complaint, give or take a few days. Based on the complainant’s assertion, which is unchallenged, she received the letter a few days later. Accordingly, I am satisfied that the complainant knew or ought to have known of the circumstances giving rise to her complaint on or about June 25, 2010, that is, a few days after Ms. Sand sent her letter dated June 23, 2010, by courier. I have no other evidence to suggest that the complainant received or should have received the letter at an earlier date.

16 This means that, to comply with the 90-day time limit imposed by subsection 190(2) of the Act, the complainant was required to file her complaint no later than September 23, 2010.

17 Determining exactly when the complainant filed the complaint is somewhat complicated. In fact, the complaint bears two separate receipt stamps from the Board, one dated September 28, 2010, and the other dated October 14, 2010. According to the Board’s registry, the complainant’s Form 16 complaint was received by fax on September 22, 2010 and subsequently by mail on September 28, 2010. In both the faxed and mailed copies, the complainant erroneously alleged that the respondents had breached paragraphs 190(1)(b) and (d) of the Act, which concern the collective bargaining process between bargaining agents and employers of the federal public service. On October 4, 2010, the Board advised the complainant that the noted provisions did not apply to her complaint. On October 14, 2010, the complainant resubmitted the identical complaint with a notation that she no longer relied on paragraphs 190(1)(b) and (d) but rather on paragraph 190(1)(g). That explains the second receipt stamp.

18 Despite the dates of the receipt stamps, the Board’s registry indicated that the complaint in question was filed on September 22, 2010. The explanation likely comes from subsection 3(2) of the Public Service Labour Relations Board Regulations. According to that provision, an initiating document, such as a section 190 complaint, is deemed to be received on the date of the fax transmission if its original and a copy are sent in accordance with subsection 3(1). Subsection 3(1) requires only that the original of the faxed document and a copy be sent “as soon as possible.”

19 I am not prepared to consider the October 14, 2011 filing as untimely simply because it referred to a new provision of the Act as the basis for the complaint. Although the initial filing referred to the wrong legislative provision, the information contained in the complaint form itself clearly established that the complaint dealt with the withdrawal of representation by the respondents. Rectifying which checkbox applied in the circumstances did not make the October 14 filing a new complaint.

III. The arguable case issue

A. The respondents’ position

20 Although mindful of the fact that the complainant bears the burden of establishing a violation of section 190, I have opted to outline the respondents’ position first in light of the preliminary objection they have raised.

21 The respondents state that, when the complainant was provided with the employer’s letter outlining its terms and conditions of employment, she spoke of it with Leah Dowe, a local representative, and was advised to document any events or occurrences of perceived pressure or harassment at work.

22 The respondents add that, on January 19, 2010, Ms. Sand had a lengthy conversation with the complainant, during which Ms. Sand provided advice about the next steps, including the need for the complainant to respond to the employer in writing, to provide medical documentation if any accommodation issues existed and the necessity of cooperating with the employer with respect to performance expectations.

23 The respondents state that the employer’s notice of rejection on probation, dated March 3, 2010, was given to the complainant during a meeting on March 4, 2010 and that, before the meeting, the complainant had an extensive conversation with Ms. Sand about the potential consequences and recourse available in the event of a rejection on probation, the content of which Ms. Sand reiterated in an email dated March 5, 2010. The email also served to outline the next steps to the complainant.

24 The respondents state that, after the complainant’s grievance was filed on March 9, 2010 with their assistance, the complainant was advised to make an access to information (ATIP) request to assist the respondents in their review of the relevant documentation. The respondents allege that, once she received the ATIP documentation, Ms. Sand requested, on April 15, 2010, the complainant’s comments with respect to the employer’s allegations.

25 According to the respondents, on May 12, 2010, Ms. Sand spoke with the complainant and once again went over the test that would have to be met in a rejection on probation case and explained that the complainant would be required to provide evidence that the rejection was a sham and that the employer’s decision was made in bad faith, arbitrarily or in a discriminatory fashion. During their conversation, Ms. Sand allegedly also reviewed some of the employer’s evidence, which included complaints against the complainant from multiple sources, reports of loud and aggressive behaviour, and an incident of the improper disposal of shredded documents.

26 The respondents contend that the complainant was made aware of the types of information and documentation required to enable the CEIU to determine whether it would provide representation. According to the respondents, the complainant did not dispute the contentions put forth by the employer in the rejection on probation letter, other than to state that its information was “skewed against her,” and she insisted that the CEIU should make its representation decision based on the information that had already been provided, through the ATIP request.

27 The respondents further state that Ms. Sand informed the complainant that, were the CEIU to decide not to represent her, she would nevertheless have the option of proceeding with her grievance on her own. Shortly after the discussion, Ms. Sand allegedly provided the complainant with copies of past Board decisions about rejections on probation to further emphasize the jurisdictional barriers normally associated with such grievances.

28 According to the respondents, the parties conversed again on May 13, 2010, during which Ms. Sand once again requested the complainant's response to the employer's allegations. According to the respondents, the complainant called Ms. Sand on May 17, 2010. Although she did not deny the employer's allegations, she attributed her behaviour to pressure that the employer had placed on her and the unfair treatment that she had received as a new employee. That allegedly prompted Ms. Sand to ask once again if there were any accommodation issues that could have led to the alleged inappropriate behaviour outlined by the employer. However, according to Ms. Sand none were identified by the complainant, and I have seen no evidence indicating otherwise. The medical notes recently submitted by the complainant are of no assistance, as the quality of the evidence was lacking and the said notes did not provide a basis for an accommodation argument.

29 The respondents contend that Ms. Sand reasonably concluded that there was no evidence to support an argument based on unfair treatment and that there was evidence which indicated that the employer had previously brought its concerns to the complainant's attention, provided additional training and repeatedly warned her that her employment could be terminated while on probation.

30 The respondents state that on June 4, 2010, Ms. Sand requested further clarification of a newly disclosed health-related issue of stress and back pain. In particular, Ms. Sand sought information as to how the complainant’s back problems could have been linked to her behaviour in the workplace. Although the complainant provided some details about treatments and visits to doctors for back-related issues, the respondents contend that the complainant never provided any evidence of any accommodation request, of any denial of such a request, or of a link between her health issues and her work-related behaviour. The complainant did not deny this contention and I note that no such evidence was included in the complainant’s materials.

31 According to the respondents, in an email to the complainant dated June 7, 2010, Ms. Sand further explained the grievance process and the jurisdictional barriers associated with rejection on probation grievances, pointing out that, if the employer were able to show employment-related reasons for the rejection on probation, her grievance would likely be unsuccessful. That email, according to the respondents, prompted the complainant to question and criticize the CEIU’s support, or lack thereof.

32 The respondents state that the letter of June 22, 2010, was sent to the complainant because the documentation on file at that time confirmed that the complainant had not, in the past, responded to such requests from both the CEIU and the employer. As with past requests, the complainant did not provide the clarification and medical evidence sought.

33 The respondents contend that the CEIU’s decision to no longer represent the complainant with her grievance, which was communicated to her in writing on June 23, 2010, was made after due consideration of the extensive earlier exchanges with her and after thorough review of the documents on file, including those received from the ATIP request. In addition, the respondents also point out that, attached to Ms. Sand’s letter of June 23, 2010, was a detailed 9-page case analysis of the complainant’s grievance, that itemized no less than 23 separate incidents involving her and her employer, and that referred to meetings, discussions, email exchanges and other forms of communication, all of which occurred between July 20, 2009 and March 3, 2010, a period of roughly 7 months.

34 The respondents submit that they have met their duty of fair representation, that the Act does not oblige a bargaining agent to refer every employee's grievance to adjudication, and that it is sufficient for a bargaining agent to demonstrate that it has examined the circumstances of the grievance, considered its merits and made a reasoned decision whether to pursue the case. In support of that proposition, the respondents refer me to Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509.

35 According to the respondents, the complainant has failed to demonstrate that they acted in a manner that was arbitrary, discriminatory or in bad faith with respect to the disposition of her grievance and that, hence, she has failed to identify any action that contravenes the Act.

B. The complainant’s position

36 The complainant states that she contacted the respondents in January 2010 after receiving the employer’s letter dated January 18, 2010, which contained the terms and conditions of employment. The complainant felt that the employer’s action was unwarranted and that it served only to demonstrate that she was not considered a valued and respected employee. The complainant adds that, from then to June 23, 2010, she focused all her energies on trying to convince the respondents that her behaviour and work performance were acceptable, hoping to obtain their support.

37 Although this complaint details alleged failures by a bargaining agent and one of its representatives, most of the complainant’s allegations are aimed at discrediting the employer’s findings, which form the basis of the rejection on probation. While most of her allegations may prove useful in her grievance against the employer, for the most part they do not provide any useful insight to this complaint. For that reason, I have opted not to repeat many of the complainant’s contentions concerning the actions of her employer.

38 For example, the complainant states that, despite her employer’s claim, the numerous weekly meetings that she was compelled to attend during the months preceding her termination did not provide meaningful coaching or training and that the employer mismanaged her career development. She adds that she was flabbergasted by how her supervisor managed the workplace. Be that as it may, those statements do not provide me with a strong factual basis that can assist me with the determination that I must make.

39 The complainant admits that the employer’s letter of January 18, 2010, which primarily imposed strict terms and conditions of employment on her, also confirmed the employer’s understanding that no accommodation was requested or required. According to the complainant, at that time she was able to manage the effects of her medical ailments with minimal absences from work.

40 The complainant states that she has been under medical care since approximately late October 2009 and alleges that she suffers from a disabling medical condition without specifying what it is, how it affected her work or providing any medical confirmation.

41 In essence, the complainant feels that, after she received the employer’s terms and conditions of employment and in the months that followed, the respondent did not provide her with strong support. The complainant states that, although she had taken offence with the employer’s claims that she constantly had to be reminded to be on time for work, to adhere to break times, and to serve clients with respect and attentiveness, the respondents had failed to act as strong allies by proving the employer wrong.

42 According to the complainant, she communicated with Ms. Sand after receiving the terms and conditions of employment. Ms. Sand advised her that she should respond to the employer and express her position in writing, something that the complainant found very difficult to do at that time. The complainant’s submissions do not specify whether she responded. Rather, her submissions suggest that she expected the respondents to respond to what she describes as very oppressive and unconscionable terms of employment, but there is no evidence that she clearly communicated her expectation to the respondents at the relevant time.

43 Nevertheless, the complainant states that she initially benefitted from the respondents’ support when she opted to file her grievance and recognizes that Ms. Sand provided her with the necessary wording, which helped her fill out the grievance form.

44 The complainant also recognizes that the case analysis prepared by Ms. Sand was in fact based on a review of the ATIP documents, which had generated in excess of 300 pages of email exchanges between the employer and the complainant. However, she contends that Ms. Sand’s case analysis is not an exact interpretation of what actually transpired in the months preceding her rejection.

45 At the end of the day, the complainant feels that the respondents never played a strong supportive role when they could have and that they took action much too late, only to later withdraw their support and leave her stranded, conduct that she qualifies as grossly negligent. According to her, union solidarity and support would have provided her with a greater chance of being reinstated, as it would have convinced the employer that she had legitimate support and a strong case.

46 The complainant also took offence with the fact that Ms. Sand provided her with numerous Board decision summaries, none of which were in favour of the employees, and with the fact that Ms. Sand allegedly stated that grievors very rarely succeed with rejection on probation grievances. Although that may not have been the advice that the complainant wanted to hear, I cannot say that it is far from reality. The complainant admits that she always understood that she was on probation.

IV. Reasons

47 Since this complaint was filed under paragraph 190(1)(g) of the Act, it must necessarily allege an unfair labour practice within the meaning of section 185, which reads as follows:

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).

48 The provision of the Act referenced under section 185 that applies to this complaint is section 187, which provides as follows:

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.

49 That provision was enacted to hold employee organizations to a duty of fair representation, a duty that, according to the complainant, the respondents did not fulfill.

50 I am satisfied that the written submissions filed by the parties allow me to decide this complaint without convening an oral hearing, as there are no critically contentious issues aside from the characterization of the evidence. My authority to proceed in this fashion is provided by section 41 of the Act, which reads as follows:

41. The Board may decide any matter before it without holding an oral hearing.

51 For the reasons that follow, I have concluded that the complaint on its face, does not demonstrate that the respondents breached their duty of fair representation. Hence, I have determined that the complaint must be dismissed.

52 As stated by the Board in Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107, the burden of proof in a complaint under section 187 of the Act rests with the complainant. That burden requires the complainant in this case to present evidence sufficient to establish that the respondents failed to meet their duty of fair representation.

53 In Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28, at para 17, the Board commented as follows on the right to representation and rejected the idea that it was an absolute right:

17. The respondent, as a bargaining agent, has the right to refuse to represent a member, and a complaint to the Board is not an appeal mechanism against such a refusal. The Board will not second-guess the bargaining agent’s decision. The Board’s role is to rule on the bargaining agent’s decision-making process and not on the merits of its decision …

54 As alluded to in Halfacree, the Board’s role is not to determine whether the respondents’ decision to cease representation of the complainant was appropriate or correct, good or bad, or even with or without merit. Rather, it is to determine whether the respondents acted in bad faith or in a manner that was arbitrary or discriminatory in the decision-making process of the representation issue.

55 Nevertheless, although the discretion afforded to bargaining agents and their representatives in determining whether to represent bargaining unit members is broad, it is not absolute. The scope of that discretion was set out by the Supreme Court of Canada (SCC) in Canadian Merchant Service Guild, at page 527. In that decision, the SCC describes the principles underlying the duty of fair representation as follows:

…

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.

…

56 Duty of fair representation complaints (and the proof required to sustain an allegation of bad faith or of arbitrary or discriminatory action) have been canvassed by a considerable number of Board decisions. In Ménard v. Public Service Alliance of Canada, 2010 PSLRB 95, the Board refers to some of the leading cases in the following manner:

…

22 With respect to the term “arbitrary,” the Supreme Court wrote as follows at paragraph 50 of Noël v. Société d’énergie de la Baie James, 2001 SCC 39:

The concepts of arbitrary conduct and serious negligence, which are closely related, refer to the quality of the union representation. The inclusion of arbitrary conduct means that even where there is no intent to harm, the union may not process an employee’s complaint in a superficial or careless manner. It must investigate the complaint, review the relevant facts or seek whatever advice may be necessary; however, the employee is not entitled to the most thorough investigation possible …

…

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

…

57 A bargaining agent’s determination as to whether it should provide representation was also examined by the Board in Mangat v. Public Service Alliance of Canada, 2010 PSLRB 52, which offered the following guidance and useful concepts:

…

44 … It is the role of a bargaining agent to determine what grievances to proceed with and what grievances not to proceed with. This determination can be made on the basis of the resources and requirements of the employee organization as a whole (Bahniuk v. Public Service Alliance of Canada, 2007 PSLRB 13). This determination by a bargaining agent has been described as follows, in Judd v. Communications, Energy and Paperworkers Union of Canada, Local 2000, 2003 CanLII 62912 (BC L.R.B.):

…

42. When a union decides not to proceed with a grievance because of relevant workplace considerations -- for instance, its interpretation of the collective agreement, the effect on other employees, or because in its assessment the grievance does not have sufficient merit -- it is doing its job of representing the employees. The particular employee whose grievance was dropped may feel the union is not "representing" him or her. But deciding not to proceed with a grievance based on these kinds of factors is an essential part of the union's job of representing the employees as a whole. When a union acts based on considerations that are relevant to the workplace, or to its job of representing employees, it is free to decide what is the best course of action and such a decision will not amount to a violation of [the duty of fair representation].

…

58 The decisions quoted above imply that bargaining agents and their representatives should be afforded substantial latitude in their representational decisions. As the Board stated recently in Manella v. Treasury Board of Canada Secretariat and Public Service Alliance of Canada, 2010 PSLRB 128, at para 38, “[t]he bar for establishing arbitrary conduct — or discriminatory or bad faith conduct — is purposely set quite high.” It requires the complainant to make out an arguable case for a violation of section 187 of the Act, which in turns requires her to put forward evidence that the respondents’ decision not to represent her was made perfunctorily or in a cursory fashion. I have closely examined the facts alleged by the complainant for evidence of discriminatory, arbitrary or bad faith behaviour on the part of the respondents but have found nothing that establishes, on a balance of probabilities, a violation of section 187.

59 Even were I to assume all the facts alleged by the complainant in her complaint and her subsequent submissions as true, I remain convinced that this complaint does not reveal an arguable case for a violation of section 190 of the Act. The fact that the complainant disagrees with the employer’s depiction of her behaviour and work performance does not necessarily assist me in determining whether the respondents acted arbitrarily, in a discriminatory fashion or in bad faith.

60 Although the complainant states that she has been under medical care since approximately late October 2009, without offering any further details, she states so only to counter any apparent delay associated with filing her complaint. And, although the complainant alleges in her submissions that she suffers from a disability, the nature of which is not clearly specified in her documents, there is no evidence before me that a disabling medical condition was ever brought to the attention of the employer or of the respondents before June 23, 2010. The complainant contends that she was never advised about the necessity of obtaining a medical note. However, she does admit that, in the past, the Service Delivery Manager and the Acting Team Leader both asked if she required any accommodation. The evidence indicates that she either denied any need, or did not respond.

61 On the other hand, the respondents communicated frequently with the complainant and sought additional information from her on several occasions, with little or no response. The evidence also discloses that they reviewed in excess of 300 pages of correspondence, which form part of the ATIP materials, and that Ms. Sand prepared a 9-page case analysis that referred to 23 separate events involving work-related issues over a period of seven months preceding the complainant’s rejection on probation. The complainant did not deny that these events occurred. In addition, the respondents considered past Board decisions and provided them to the complainant, in support of their decision, and they provided advice and guidance about procedural issues and about the grievance process as a whole.

62 While it is not my role to second-guess the respondents’ reasoning, in these circumstances they should not be faulted for presenting what was ultimately perceived by the complainant as a grim appraisal of the complainant’s chances of success. As reflected by past Board decisions, the threshold in rejection on probation cases is high.

63 Therefore, I am satisfied that the respondents demonstrated that the circumstances of the complainant’s case were investigated, that its merits were properly considered and that a reasoned decision was made as to whether to pursue it.

64 Clearly, the respondents did not demonstrate an uncaring or cavalier attitude toward the complainant’s interests; nor was it established that the respondents acted fraudulently, for improper motives or out of personal hostility or that they distinguished between their members based on illegal, arbitrary or unreasonable grounds.

65 For those reasons, I find that, both in her complaint and in her submissions, the complainant has failed to present an arguable case that the respondents committed an unfair labour practice.

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

V. Order

67 The complaint is dismissed.

June 13, 2011.

Stephan Bertrand,
Board Member