FPSLREB Decisions

Complaint before the Board

1 Diane Pilon (“the complainant”) filed an unfair labour practice complaint under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”) on April 9, 2011. She alleged that Tiffani Murray and the Public Service Alliance of Canada (“the respondents”) failed in their duty of fair representation when they refused to represent her in five grievances.

Summary of the evidence

2 In her complaint, the complainant submitted that the respondents acted arbitrarily and that they failed to represent her when they withdrew their representation for five grievances. Specifically, for two of the grievances, which involved the interpretation of the relevant collective agreement, the respondents withdrew them from adjudication, while for the other three, which concerned discipline, they withdrew their support for adjudication.

3 On July 4, 2011, in their detailed submissions, the respondents denied the allegations and contended that they are not required to provide representation for every grievance and that they acted within their rights in this matter.

4 On August 3, 2011, the complainant commented on the respondents’ submissions of July 4, 2011, taking issue with the timing of the withdrawal of representation and with the respondents’ attempts to settle the grievances. She concluded by reiterating that the respondents failed in their duty of fair representation under section 190 of the Act.

5 On August 11, 2011, the Public Service Labour Relations Board (“the Board”) informed the parties by registered mail and email that the hearing of the complaint was tentatively scheduled to begin February 20, 2012 and that they were to inform the Board if they were not available.

6 On September 14, 2011, the Board confirmed with the parties via registered mail and email that the hearing would take place on February 20 to 22, 2012 and that these dates were considered final. That information was successfully delivered to the parties on September 16, 2011.

7 On January 17, 2012, the Board issued a notice of hearing to the parties confirming that the hearing would take place on February 20 to 22, 2012. The notice of hearing stated the following:

AND FURTHER TAKE NOTICE that 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.

8 That notice of hearing was successfully delivered to the parties via Priority Post on January 18, 2012.

9 On February 9, 2012, the Board convened the parties, via email, to a pre‑hearing conference by phone. The complainant did not respond to the invitation and provided no justification.

10 On February 14, 2012, the Board sent another email to the complainant confirming the upcoming hearing for February 20 to 22, 2012.

11 On February 20, 2012, I started the hearing at 09:30 at the location indicated on the notice of hearing. The respondents’ representative was present with his witness. The complainant was not present. She did not contact the Board to indicate that she would not attend or that she had been delayed.

12 Since the complainant had been informed many times of the hearing dates and since she did not provide a reason justifying her absence, I decided to go ahead with the hearing.

Summary of the arguments

13 The respondents’ representative indicated that the complainant filed a complaint against the respondents after they decided not to represent her in five grievances.

14 The respondents’ representative strongly denied any failure of the duty of fair representation on the part of the respondents.

15 Moreover, the respondents’ representative argued that the complaint should be dismissed since the complainant was not present to prove the alleged failure of fair representation.

16 The respondents’ representative argued that the complainant, in her case alleging a failure of fair representation, had the burden of proof. She had to adduce evidence supporting her allegations. Her serious allegations needed proving. By not attending the hearing, after being duly notified about its dates and location, the complainant failed to meet her burden of proof.

17 The representative for the respondents argued that the notice of hearing of January 17, 2012 clearly stated that the Board might decide the matter even if a party did not show up at the hearing.

18 In the circumstances, the representative for the respondents urged me to dismiss the complaint for lack of evidence.

19 The representative for the respondents referred me to Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107, Singaravelu v. Public Service Alliance of Canada, 2009 PSLRB 95, Reid v. Professional Institute of the Public Service of Canada, 2001 PSSRB 48, Boulanger v. Jasmin et al., PSSRB File No. 161-02-683 (19930715), Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28, Halfacree v. Public Service Alliance of Canada, 2010 PSLRB 64, Nowen et al. v. UCCO-SACC-CSN, 2003 PSSRB 98, Pavlik v. Professional Institute of Public Service of Canada, PSSRB File No. 161-02-792 (19970324), Tsai v. Canada Employment and Immigration Union and Sand, 2011 PSLRB 78, and Sayeed v. Professional Institute of the Public Service of Canada, 2010 PSLRB 44.

Reasons

20 I agree with the respondents’ representative that the complainant’s allegations of the respondents’ breaches of fair representation are very serious and that they need to be proven. In Reid at paragraph 48, the Deputy Chairperson decided as follows:

[48] A complaint of breach [sic] of the duty of fair representation is a very serious concern for a bargaining agent. It questions the very foundation of its purpose. A bargaining agent needs to have complaints questioning fair representation determined as soon as possible, to correct wrongs if any, or to affirm its credibility. To keep a complaint outstanding indefinitely can create great harm to a bargaining agent and is contrary to sound labour relations principles…

I agree with the Deputy Chairperson’s comments.

21 In this case, the complainant, without justification, failed to appear before the Board to prove her allegations of unfair representation.

22 I agree with the respondents’ representative that, in this case, the burden of proving the allegations rested with the complainant. Since she did not adduce any evidence and did not give any valid explanation for her absence, I have no choice but to dismiss the complaint against the respondents for lack of evidence.

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

Order

24 The complaint is dismissed, and I order this file closed.

April 27, 2012.

Linda Gobeil,
Vice-Chairperson