FPSLREB Decisions

Individual grievance referred to adjudication

1 This individual grievance was referred to adjudication by Darcy Gallan’s union, the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada – CSN (“the union”), on February 8, 2008. By the time of the hearing, Mr. Gallan was self‑represented and did not attend. On a motion by the employer, the Correctional Service of Canada, on January 4, 2012 at 11:30, I dismissed the grievance. My reasons follow.

2 No exhibits were entered at the hearing. The following facts were collected from the documents and file materials maintained by the Public Service Labour Relations Board (“the Board”) in PSLRB File No. 566‑02‑1793.

3 Mr. Gallan was at all material times a corrections officer employed as such at the Atlantic Institution (“the institution”), a maximum–security facility operated by the employer in Renous, New Brunswick. Mr. Gallan’s grievance arose out of events that occurred there in or about July and August 2005.

4 Mr. Gallan alleged that he had been defamed by the employer. He alleged it told his peers that his name was on a list of six correctional officers suspected of smuggling drugs into the institution. He also alleged that the list had become known to the inmates and that, as a result, he left work, fearing for his safety. He alleged that, as a result of the stress and anxiety he suffered from the employer’s allegedly false and defamatory statements, he suffered losses and damages, including the following:

1. the loss of salary and other employment benefits;
2. personal and professional embarrassment and damage to his reputation; and
3. anxiety and depression.

5 Mr. Gallan retained Clarence Bennett, a solicitor from Fredericton, New Brunswick, to launch a lawsuit against the employer and Keith Fowler, who was at the relevant time an institution Prevention Security Officer. The statement of claim was filed in the Court of Queen’s Bench of New Brunswick on or about March 17, 2006.

6 The statement of claim was served on the defendants. They were represented by Dean Smith, a solicitor with the Department of Justice.

7 At some point, Mr. Smith and Mr. Bennett agreed to transform Mr. Gallan’s complaint from a court action to a grievance. The substance of the agreement was set out in a letter dated March 30, 2007 from Mr. Bennett to Mr. Smith, the salient parts of which are as follows:

Please be advised that we have consulted with the Union in this matter and will advise you shortly whether they will be proceeding with a grievance. Please confirm by executing and returning this letter your agreement that the Employer will not be raising any issue with respect to timeliness or arbitrability if Mr. Gallan agrees to withdraw the above-noted action in favour of the grievance procedure.

8 The second page of the letter contained the following:

I, W. Dean Smith, Counsel for the Department of Justice Canada, hereby agree that the employer will not raise any issue with respect to timeliness or arbitrability if Mr. Gallan withdraws the above-noted action in favour of the grievance procedure.

9 Mr. Smith signed the letter on April 4, 2007 and returned it to Mr. Bennett, who then ultimately filed a “Notice of Discontinuance” of the court action.

10 On April 15, 2007, the union filed an individual grievance on behalf of Mr. Gallan. It stated that “… the grievor wishes to convert the attached claim to a grievance pursuant to an agreement between counsel.” The statement of claim that had been filed in the court action was attached to the grievance form.

11 On April 23, 2007, the employer filed its first–level response to Mr. Gallan’s grievance. The response was to the following effect that:

1. there never was any list of names;
2. the allegations about smuggling were made by inmates and, with one exception, had been regarded by the employer as completely false and untrue; and
3. Mr. Gallan had not at any time been under any suspicion by the employer.

12 On July 24, 2007, the employer filed its second–level response to Mr. Gallan’s grievance. The response was more detailed than its first–level response, but in essence, amounted to the same thing. It added with respect to Mr. Gallan’s claim for a loss of sick-leave credits that it had been determined that his loss of salary and of sick–leave credits was not due to work-related stress.

13 On July 29, 2007, the union agreed to represent Mr. Gallan in the referral of his grievance to adjudication.

14 On February 4, 2008, Mr. John Mancini, counsel for the union, filed a Form 21, referring the grievance to adjudication. He advised that he would be representing Mr. Gallan.

15 The Board advised the parties that, under section 94 of the Public Service Labour Relations Board Regulations, SOR/2005-79 it proposed to refer the matter to mediation unless one or both of the parties objected. In March 2008, the employer advised the Board that it was prepared to have the matter mediated by the Board’s mediation service. The union advised the Board that Mr. Mancini would represent Mr. Gallan at the mediation.

16 The Board appointed a mediator. The mediator’s office made numerous efforts between June 2008 and January 2009 to contact Mr. Mancini. The messages were never returned. The Board’s mediator concluded on May 15, 2009, that since the messages had not been returned, it appeared that Mr. Gallan had no interest in mediation. The mediator closed his file and returned it to the Board’s registry so that a hearing could be scheduled.

17 On February 18, 2010, the employer raised an objection to the jurisdiction of an adjudicator to hear the matter, which at that point had been scheduled for April 20 and 21, 2010 in Moncton, New Brunswick. The employer pointed out that, although the grievance had been referred to adjudication under paragraph 209(1)(b) of the Public Service Labour Relations Act (“the Act”), there had been neither a disciplinary action nor any financial penalty or suspension. The employer’s position was that the grievance was, on its face, defective for failing to allege any action that fell within that paragraph and that, accordingly, the grievance should be dismissed without a hearing. This letter was copied to the union.

18 On February 22, 2010, the Board notified counsel for the union and the employer that the employer’s letter of February 18 would be brought to the attention of the adjudicator assigned to hear the grievance.

19 On March 17, 2010, the Board notified counsel for the union and the employer that the hearing of the grievance would take place on April 20 and 21, 2010 at the Crowne Plaza Hotel in Moncton. The notice contained the following warning: “[If] you fail to attend the hearing or any continuation thereof, the Board may dispose of the matter on the evidence and representations placed at the hearing without further notice to you”.

20 On April 7, 2010, the Board noted that the employer’s objection had been brought to the attention of the adjudicator assigned to the file. The adjudicator had directed the union to provide its response to the employer’s objection by April 28, 2010. The adjudicator also directed that the hearing be postponed.

21 On April 22, 2010, Mr. Mancini, the union’s counsel, responded to the Board’s correspondence of April 7. He advised that “… there is no need to address the employer’s objection.” He explained that he was “… currently in the process of obtaining the bargaining agent’s withdrawal of their support for the grievance.” He expected to receive that authorization at the next monthly meeting of the union executive, and in the meantime he asked the Board to “put the file on hold.” The Board agreed to hold the matter in abeyance pending confirmation that the union had withdrawn its support.

22 Confirmation was slow in coming. Eventually, after a number of prompts from the Board, the union filed, on March 22, 2011, confirmation that “the National Executive of UCCO-SACC-CSN has just recently withdrawn its support for the … grievance.” It went on to advise that the Board “… can therefore withdraw this grievance … from adjudication.”

23 On March 24, 2011 the Board notified Mr. Gallan directly that it had been advised that the union was no longer representing him. It requested his advice by April 7 as to how he would like to proceed “with [his] reference to adjudication.”

24 On March 30, 2011, Mr. Gallan phoned the Board. He advised that he wished to continue with his grievance. He was told that he should advise the Board in writing of that intention.

25 On April 4, 2011, Mr. Gallan emailed the Board to confirm that he wished to continue with his reference to adjudication and that he would “. . . have the information on my representation shortly.”

26 On April 18, 2011, Mr. Gallan was advised by the Board by letter that the hearing had been tentatively scheduled for October 12 and 13, 2011 in Moncton. He was asked to advise by May 5 if those dates were not acceptable. The Board received no word from Mr. Gallan but the date was postponed at the request of the employer.

27 On July 11, 2011, Mr. Gallan, who was still self-represented at that point, was advised that the hearing had been set for January 4 and 5, 2012 in Moncton. He was also advised of the employer’s February 18, 2010 objection to the Board’s jurisdiction. He was provided with an extension to August 5, 2011 to provide his response. On July 14, he phoned the Board and requested and received a three–week extension to August 26 to provide his position. He also emailed the Board to the same effect on July 15. The employer did not oppose this request.

28 On August 22, 2011, Mr. Gallan called the Board. He advised that he now had counsel and that his counsel was seeking information as to the employer’s objection to jurisdiction. The Board agreed to provide his counsel with that information. The information was emailed to him on the same day.

29 On August 25, 2011, Mr. Bennett wrote to the Board. His letter was copied to Mr. Gallan. He advised that he had been retained by Mr. Gallan and that “[w]e are available on January 4 and 5, 2012 for the arbitration.” With respect to the employer’s objection, he enclosed copies of

1. his letter of March 30, 2007 to Mr. Smith; and
2. an email exchange between them on May 11, 2007 about that agreement.

30 The issue of jurisdiction was eventually placed before me as the adjudicator assigned to hear the matter. Upon reviewing the file materials, I determined that a decision about the employer’s objection could be made only after hearing evidence and submissions at the hearing. The representatives of the parties were so advised.

31 On November 22, 2011, the Board gave formal notice of the time and place of the hearing to Mr. Bennett and to the employer’s representative. They were advised that it would be held in Moncton at the Crowne Plaza Hotel on January 4 and 5, 2012, commencing at 09:30 each day. The notice contained the same warning as in the March 17, 2010 notice: “[If] you fail to attend the hearing or any continuation thereof, the Board may dispose of the matter on the evidence and representations placed at the hearing without further notice to you.”

Events surrounding the hearing scheduled for January 4 and 5, 2012

32 On Tuesday, January 3, 2012, the Board received information from the union that Mr. Gallan stated in the workplace that he would be representing himself at the hearing. Until that point, the Board’s information (based in part on Mr. Bennett’s letter of August 25) was that Mr. Gallan was being represented by Mr. Bennett as his counsel.

33 On Wednesday, January 4, I convened the hearing at 09:30. Present on behalf of the employer were Michel Girard, counsel; his advisor, Anne-Renée Bergeron, Labour Relations Advisor; Keith Fowler and David Niles, witnesses; and two observers, Tracey Thériault and Georgette Henri-Ward, both Human Relations Advisors.

34 No one on behalf of Mr. Gallan was present, neither him nor his counsel, Mr. Bennett.

35 I requested that the employer’s representatives attempt to track down Mr. Gallan. I was advised that they contacted the Dorchester Penitentionary, where Mr. Gallan was on a work assignment. That institution advised its records showed that Mr. Gallan was scheduled to start his shift at 14:30 on January 4 and that there was no indication in its records of any request from him for time off on January 4 to attend a hearing.

36 Mr. Bennett’s office was then contacted. He was apparently in a meeting. An assistant in the office advised that Mr. Bennett understood the following:

… that he did not have to appear at the hearing and had not planned on attending because he was no longer representing Mr. Gallan; and that he understood that Mr. Gallan was being represented by his union or that he was representing himself at the hearing.

37 I note that, until that point, neither Mr. Bennett nor Mr. Gallan had provided any notice of any kind to the Board of any change in Mr. Bennett’s status as counsel for Mr. Gallan.

38 A representative of the employer then called Mr. Gallan’s home. I was advised that a person answered, identified himself as Mr. Gallan’s brother‑in‑law and said that Mr. Gallan was “in Moncton” for the day. Mr. Gallan’s cell number was called, but there was no response.

39 I was also advised that the employer’s representative then checked with the employer’s office in Moncton, on the off‑chance that Mr. Gallan had gone there instead. She was advised that no one by that name had shown up at the front desk. A message was left, informing him to attend the hearing if he did show up. The same advice was left at the front desk of the hotel hosting the hearing.

40 Everything transpired before 10:30. I decided to adjourn to 11:30 to see whether Mr. Gallan would show up. A message was left at the front desk of the hotel to that effect. The hearing details had also been posted in the hotel lobby.

41 I reconvened the hearing at 11:30 Mr. Gallan was still not present. Nor was there any indication that he had called or emailed the Board’s offices (as he had in the past).

42 At that point, counsel for the employer made a motion that I dismiss the grievance for want of prosecution.

Reasons

43 I have set out the facts as they appear in the materials in the Board’s file. The grievance concerns events that occurred well over six years ago. The file materials justify a conclusion that Mr. Gallan was well aware of the date, time and place of the hearing. He contacted the Board in the past, and if (on January 4) he had shown up at the wrong place, he would have had ample time to contact the Board to advise it of any such mistake and to learn of the correct location. He appears to have made no such effort. He has benefited from both personal counsel (Mr. Bennett) and union counsel (Mr. Mancini) over the years. Presumably, they too have advised him of the importance of showing up at the hearing. In Mr. Bennett’s case, he would presumably also have provided Mr. Gallan with notice of the time, place and date of the hearing.

44 On the evidence, I can arrive at no other conclusion but that Mr. Gallan has abandoned his grievance. Alternatively, his failure to appear – in the absence of any appropriate explanation or justification – suggests a cavalier approach both to his grievance and to the Board’s procedures that warrants a conclusion that he is abusing the adjudication procedure. In either event, an order dismissing the grievance is appropriate. In reaching my decision, I made no finding or ruling with respect to the employer’s ongoing objection to the Board’s jurisdiction to hear the matter on its merits.

45 For all the above reasons, I make the following order:

Order

46 The grievance is denied.

February 16, 2012.

Augustus Richardson,
adjudicator