FPSLREB Decisions

I. Complaints before the Board

1 On July 13, 2011, Des Scott (“the complainant”) filed a complaint under section 190 of the Public Service Labour Relations Act (“the Act”) against his bargaining agent, the Public Service Alliance of Canada (“the respondent” or PSAC). In the complaint form, the complainant described the nature of his complaint as follows:

PSAC commited an unfair labour practice under section 188c by failing to allow me access to a review of diciplinary actions taken against me. The arbitrary, inconsistant, and discriminatory refusal is is ongoing.

[Sic throughout]

2 On May 11, 2012, the complainant filed a second complaint under section 190 of the Act against the respondent. In that complaint form, the complainant described the nature of his second complaint as follows:

On February 3, 2012 and March 29, 2012 I filed complaints with the Union of Taxation Employees, a component of PSAC. I enclose the related correspondence. The component and I were unable to agree on a proceedure [sic] whereby the complaints would be processed.

As a result I am filing complaints against the component as follows:

Violation of Section 188(c) for failing to provide me with representation.

Violation of Section 188(c) for failing to provide me with requested documentary evidence.

Violation of Section 188(c) for failing to provide an impartial examination of my complaints.

Violation of Section 188(c) for failing to provide a safe environment in which my complaints would be investigated.

Violation of Sections 5 and 188(d) for imposition of a Letter of Censure.

3 Both complaints were heard at the same time. At the hearing, the complainant clarified that the February 3, 2012 and March 29, 2012 complaints noted in his second complaint form consisted of internal complaints filed with the PSAC, rather than complaints filed with the Public Service Labour Relations Board (“the Board”). The complainant also confirmed that the complaints he had filed with the Board and bearing file numbers 561-34-523 and 561-34-566 were based on paragraphs 188(c) and (d) of the Act. Those provisions read as follows:

188. No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

…

(c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner;

(d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or having refused to perform an act that is contrary to this Part …

…

4  In its written reply, and at the hearing, the respondent raised a preliminary objection, stating that the complaints were inadmissible and that they should be summarily dismissed because they were not filed within the time limit set out in subsection 190(2) of the Act, which 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 The purpose of the hearing was solely to determine whether the complaints were filed within 90 days of the date on which the complainant knew or ought to have known of the circumstances giving rise to these complaints.

II. Summary of the evidence

6 At the hearing, I heard the testimony of Kent MacDonald, a labour relations officer with the Union of Taxation Employees (UTE), a component of the PSAC, and that of the complainant.

7 Mr. MacDonald testified that he has been a labour relations officer with the UTE since 2007. Before that, he had acted as regional vice-president for the Northern Ontario regional office of the UTE, in Thunder Bay, Ontario.

8 In September 2005, Mr. MacDonald was asked by the UTE National President to chair an Investigation Committee in connection with approximately 13 internal complaints involving a UTE regional vice-president, members of two different UTE locals and a number of executive members of another UTE local, including the complainant, who was named in five of the complaints, either as a complainant or as the person being complained of.

9 Mr. MacDonald indicated that he conducted four interview sessions between October 26, 2005 and February 28, 2006 and that he interviewed the complainant about the five internal complaints involving him on February 27 and 28, 2006. As a result of the lengthy investigative process, Mr. MacDonald submitted five investigation reports to the UTE Executive Council on March 22, 2006, two of which involved the complainant. He submitted six additional investigation reports to the Executive Council on June 6, 2006, one of which involved the complainant. And he submitted two more investigation reports to the Executive Council on September 24, 2006, both of which involved the complainant. According to Mr. MacDonald, four of the five reports about the complainant necessitated no corrective action against him. However, in one of his reports about the complainant, the Investigative Committee recommended that a letter of censure from the UTE national president be issued against the complainant as a form of disciplinary action, which was done on June 3, 2006.

10 Following the receipt of the letter of censure, the complainant filed four separate complaints with the Board against the PSAC and the UTE under section 190 of the Act, bearing file numbers 561-34-131, 132, 142 and 143, all of which were related to the 2005 internal complaints, the internal investigation that had ensued and the issuance of the letter of censure. However, he withdrew all four complaints on July 31, 2008.

11 On July 13, 2011 and May 11, 2012, respectively, the complainant filed two new section 190 complaints against the respondent, which are the subject of this decision. According to Mr. MacDonald, the only possible disciplinary action imposed by the respondent that could form the basis of complaints under paragraphs 188(c) and (d) of the Act was the 2006 letter of censure. He was aware of no other disciplinary action imposed on the complainant by the respondent.

12 Although the complainant initially appeared hesitant to testify at the hearing, he voluntarily opted to do so after Mr. MacDonald’s testimony, for the sole purpose of introducing documentary evidence which he felt supported his complaints (Exhibits 8 to 16). He offered no additional details on the particulars of his complaints when testifying in chief. However, in cross-examination, the complainant made two significant concessions. When specifically asked whether the actions of the respondent he complained of in his first complaint (PSLRB File No. 561-34-523) essentially pertained to its decision to issue a letter of censure against him on June 3, 2006, the complainant acknowledged that they did. Similarly, when asked whether the actions of the respondent he complained of in his second complaint (PSLRB File No. 561-34-566), particularly the alleged failures to provide him with representation, with documentary evidence, with an impartial examination of his internal complaints and with a safe environment during the investigation of his complaints, and the issuance of a letter of censure, were all directly related to his 2005 internal complaints, to the internal investigation of those complaints and to the letter of censure he had received in June 2006, the complainant acknowledged that they indeed were.

13 Finally, the complainant stated in cross-examination that he considered the 2006 letter of censure meaningless and of no consequence. That corroborated Mr. MacDonald’s testimony, who had stated earlier that, despite the issuance of the letter of censure, the complainant had subsequently been successful in being elected as the president of his UTE local in 2007 and had remained in that position for three years.

III. Summary of the arguments

A. For the respondent

14 The respondent argued that it is abundantly clear that the circumstances giving rise to these two complaints pertain exclusively to events that took place in 2005 and 2006, namely, the five internal complaints involving the complainant, the internal investigation that ensued and the letter of censure issued against him on June 3, 2006. According to the respondent, the complainant’s admissions in cross-examination established those facts beyond a doubt.

15 The respondent also argued that these complaints are no less than an attempt by the complainant to revive previous unfair labour practice complaints that he had initiated in 2006 but that he subsequently withdrew in 2008.

16 The respondent contended that the complaints are untimely since they were not filed within the mandatory 90-day time limit provided by subsection 190(2) of the Act. According to the respondent, subsection 190(2) is mandatory, and the time limit that it sets cannot be extended. Therefore, if it can be shown that the complainant knew or ought to have known of the circumstances giving rise to his complaints before the applicable 90-day window, which the respondent argued was so in this case, then the complaints must be found untimely.

17 The respondent also contended that no evidence was presented during the course of the hearing establishing that the complainant ever availed himself of the PSAC’s internal appeal process to challenge the 2006 letter of censure or that he had ever expressed an intention to do so.

18 According to the respondent, the evidence, especially the complainant’s admissions in cross-examination, has clearly established that the real source of his complaints dates back to 2006, which means that his complaints are untimely.

19 The respondent referred me to prior decisions of the Board, including Walters v. Public Service Alliance of Canada, 2008 PSLRB 106, Panula v. Canada Revenue Agency and Bannon, 2008 PSLRB 4, Bouchard v. Public Service Alliance of Canada et al., 2008 PSLRB 82, and Roy v. Professional Institute of the Public Service of Canada, 2011 PSLRB 142.

B. For the complainant

20 The complainant read two written submissions he had prepared in connection with each of his complaints, which submission I found somewhat confusing and of limited relevance. I have reproduced both documents as appendices to this decision. The complainant’s submissions on complaint 561-34-523 can be found at Appendix I of this decision and his submissions on complaint 561-34-566 can be found at Appendix II. The complainant’s references to exhibit numbers in these submissions do not correspond to the exhibits that were entered at the hearing.

21 Essentially, the complainant’s arguments with respect to complaint 561-34-523 focused on his allegation that the respondent did not provide him with what he considers to be a mandatory appeal process.  His submission on this issue addressed his contention that his bargaining agent was obligated to provide such a procedure in accordance with the terms of the Act. His submissions do not, however, address the timeliness issue in any respect. His submissions with respect to complaint 561-34-566 focused largely on his allegation that he and the respondent were “unable to agree on a procedure whereby the complaints would be processed”. The final portion of his submissions does include a lengthy citation of section 190 of the Act, the section where the time limit for complaints is set out, followed by a conclusion that his complaints are timely. However, no analysis or explanation of his conclusion was provided by the complainant.

IV. Reasons

22 This decision deals exclusively with the respondent’s objection that the complaints are untimely. As I stated in Roy, timeliness is a fundamental factor, and the key element of timeliness is prescribed in subsection 190(2) of the Act as follows:

190. (2) … 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.

23 I agree with the respondent’s contention that the 90-day time limit prescribed by subsection 190(2) of the Act is mandatory and that no other provision of the Act gives the Board jurisdiction to extend it. That is an accurate account of the state of the law that applies in this case. It means that I must determine when the complainant knew or ought to have known of the circumstances giving rise to his complaints and whether he filed his complaints within 90 days of that date.

24 Having considered the evidence that was presented to me, I am satisfied that the circumstances that gave rise to these complaints did not occur within the 90-day window that preceded their filing. As was the case in Panula, “… the real sources of the complaints are of much greater vintage.” They go back to 2006, five years before the complaints were filed.

25 It is abundantly clear that the circumstances that gave rise to the complaints are directly related to the five internal complaints involving the complainant, which were filed with the PSAC in 2005, to the internal investigation that ensued, which was chaired by Mr. MacDonald, and to the letter of censure, which was issued against the complainant on June 3, 2006. Those fundamental facts were clearly established by the evidence, including the complainant’s admissions in cross-examination.

26 I was not presented with any evidence suggesting that the circumstances giving rise to the complaints were in any way related to the complainant’s access to a review of the respondent’s decision to censure him in 2006. Therefore, I find that that was simply not the case. I am convinced that the true nature of these complaints starts and ends with the letter of censure that the complainant received in 2006. As suggested by the respondent, the complainant is attempting to contest a matter that occurred five years before he filed his complaints and to relitigate complaints that he withdrew in 2008. I find the complainant’s attempts both abusive and frivolous.

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

V. Order

28 The complaints are dismissed.

June 21, 2013.

Stephan J. Bertrand,
a panel of the Public Service
Labour Relations Board