Date:  20140328

File:  561‑34‑522

 

 Citation:  2014 PSLRB 39

Public Service Labour Relations Act

Before a panel of the Public Service Labour Relations Board

Between

 

Sean Cavanagh

 

Complainant

 

and

 

Maeve Sullivan and

The Professional Institute of the Public Service of Canada

 

Respondents

Indexed as

Cavanagh v. Sullivan

 

 

In the matter of a complaint made under section 190 of the Public Service Labour Relations Act

Before:  Michael F. McNamara, a panel of the Public Service Labour Relations Board

For the Complainant:  Himself

For the Respondents:  Linelle S. Mogado and Mandy Wojcik, counsel

Heard at Toronto, Ontario,

December 11 to 13, 2012.

REASONS FOR DECISION

Complaint before the Board

[1]  On June 28, 2011, Sean Cavanagh (“the complainant”) signed a complaint against Maeve Sullivan (“the respondent”) which was received by the Public Service Labour Relations Board (the Board) on July 6, 2011. At the time of the complaint, the respondent was an employment relations officer (ERO) with the Professional Institute of the Public Service of Canada (PIPSC or “the union”). The complainant alleged that the respondent 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, s. 2 (“the Act”).

[2]  The complaint involves the following provisions of the Act:

. . .

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

. . .

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

. . .

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).

. . .

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.

. . .

[3]  The complainant alleged the following of the respondent:

Maeve Sullivan of PIPSC in Toronto recused herself from my case because she wanted to provide the CRA with information that I had previously given her under privilege which she promised me would never be given to the CRA. She consulted with Dan Rafferty and came back “un‑recusing” herself from the file on the condition that I provide the information which I submitted under the assumption of privilege. This lead me to seek other representation, this was not provided out of Toronto so I said I would represent myself. I then later requested from HQ a new representative which was denied on April 7^th, 2011. It was clear that she was not working in my best interests on this file as she demanded I provided privileged information to the CRA that could harm my case and for which she obtained from me on the basis of not ever providing it.

[Sic throughout]

Summary of the evidence

[4]  The first day of the hearing was slightly delayed due to the late arrival of the complainant and a subsequent pause to finalize a joint statement of facts (Exhibit 1). Following opening statements, the parties thought that there might be some basis for an attempt to mediate the dispute. After a brief review of the issues and of the parties’ positions, it was evident that mediation would not be fruitful and the formal portion of the hearing began at 14:15.

[5]  The joint statement of fact (Exhibit 1) reads as follows:

Joint Statement of Fact

1. The named Respondent, Maeve Sullivan, is employed by the Professional Institute of the Public Service of Canada (“the Union”) as an Employment Relations Officer (“ERO”).

2. At all times relevant to this matter, Ms. Sullivan acted as an agent of the Union.

3. At all times relevant to this matter, the Union has been a party to a Collective Agreement with the Canada Revenue Agency (“the Employer” or “CRA”) in respect of employees in the Audit, Financial and Scientific bargaining unit of the Union.

4. The Complainant, Sean Cavanagh, was employed as an Auditor with the CRA until June 17, 2008 when his employment was terminated for alleged insubordination. As an Auditor, Mr. Cavanagh was a member of the Audit, Financial and Scientific bargaining unit (Tab 9).

5. At the time of his termination on or about June 17, 2008, there were three outstanding grievances relating to Mr. Cavanagh (Tabs 2, 4, 6).

6. The first grievance, filed on Mr. Cavanagh’s behalf on or about October 30, 2006, related to an order made by the Employer to Mr. Cavanagh in or around October 2006 to cease and desist from performing work outside of the CRA as a business valuator. The Employer alleged that Mr. Cavanagh’s outside business valuation work created a conflict of interest with his duties as an auditor at the CRA. The grievance referred to Article 46.1 of the Collective Agreement (Tab 2).

7. The second grievance, filed on Mr. Cavanagh’s behalf on or about February 27, 2007, related to a ten‑day suspension imposed by the Employer in or around February 2007 for Mr. Cavanagh’s alleged failure to comply with the Employer’s order to cease and desist from performing work outside of the CRA as a business valuator (Tabs 3 and 4).

8. The third grievance, filed on Mr. Cavanagh’s behalf on or about March 13, 2008, related to a twenty‑day suspension imposed by the Employer in or around March 2008 for Mr. Cavanagh’s continued alleged failure to comply with the Employer’s order to cease and desist from performing work outside of the CRA as a business valuator (Tabs 5 and 6).

9. On or about May 12, 2008, the Employer denied the grievance filed on Mr. Cavanagh’s behalf challenging the ten‑day suspension (Tab 7).

10. On or about June 17, 2008, the Employer terminated Mr. Cavanagh’s employment for alleged insubordination in connection with Mr. Cavanagh’s alleged refusal to cease and desist from performing work outside of the CRA as a business valuator (Tab 8).

11. A grievance challenging the termination was filed on Mr. Cavanagh’s behalf on or about July 8, 2008 (Tab 9).

12. On or about January 19, 2010, the Employer denied the three grievances filed on Mr. Cavanagh’s behalf challenging the October 20, 2006 direction, the twenty‑day suspension, and the termination (Tab 10).

13. The Union referred all four of the outstanding grievances to the Public Sector [sic] Labour Relations Board for adjudication. The Board’s case numbers for the grievances are as follows:

(a) The October 2006 direction grievance: #566‑34‑3542;

(b) The ten‑day suspension grievance: #566‑34‑2161;

(c) The twenty‑day suspension grievance: #566‑34‑3543;

(d) The termination grievance: #566‑34‑3544.

14. A hearing before the Board with respect to the four outstanding grievances was scheduled to begin on April 11, 2011 and continue on April 12, 13, 14, and 15, 2011.

15. In November 2010, Ms. Sullivan assumed carriage of the four grievances on behalf of the Union and began preparations for the April 2011 hearing.

16. In the course of preparing for the hearing, Ms. Sullivan requested that the Employer produce to the Union all arguably relevant documents, including a number of specific documents (Tab 11).

17. On or about March 28, 2011, counsel for the Employer acknowledged the Union’s production requests and advised that the package of documents would be sent shortly. Counsel for the Employer also specifically requested that the Union produce: “all invoices, statements of account, bills and related documents from the grievor and/or his company for the years 2003 to 2008 inclusive”. Ms. Sullivan forwarded Employer counsel’s request to Mr. Cavanagh by email the same day (Tab 11).

18. In the course of preparing for the hearing, a dispute arose between Mr. Cavanagh and Ms. Sullivan when the Complainant ordered Ms. Sullivan not to produce certain relevant documents in response to the Employer’s production request (Tabs 12a, 12b, 12c).

19. On April 4, 2011, Mr. Cavanagh participated in a conference call with Alan Phillips, who was Ms. Sullivan’s supervisor at the time in the position of Acting Chief, Regional Operations.

20. Following the conference call, on April 4, 2011, Mr. Cavanagh sent an email to Mr. Phillips confirming that he no longer wanted to be represented by the Union in respect of his grievances and that he preferred to represent himself before the Board (Tab 13).

21. On April 6, 2011, Ms. Sullivan sought and obtained an adjournment of the April 2011 hearing dates to provide Mr. Cavanagh time to prepare for the hearing or seek outside representation. Ms. Sullivan also advised the Board that, with respect to Board File #566‑34‑3542, “the Union approves Mr. Cavanagh to represent himself at the adjudication of this grievance” (Tab 14).

22. On or about April 7, 2011, Mr. Phillips emailed Mr. Cavanagh to advise that the Union would send a letter to employer counsel and the Board advising of the change in representation and advising the Board that the Employer had consented to an adjournment of the hearing. Mr. Phillips email also stated as follows:

Finally, I should advise you that although normally the Board requires that the Union represent Grievors at the Board whose grievances are related to the interpretation and application of the Collective Agreement, in the particular circumstances of your case the Union is prepared to endorse your self‑representation in respect of the grievance relating to the “Outside Activities” article of the Collective Agreement and will so advise the Board. As for the rest of your grievances, there is no need for the Union to endorse your self‑representation, as they do not relate to the Collective Agreement. (Tab 15)

23. Mr. Cavanagh responded to Mr. Phillips’ email on April 7, 2011 requesting that the Union forward documents relating the file to him (Tab 16).

24. On or about April 8, 2011, the Board dismissed the grievance relating to the October 2006 direction (Board File #566‑34‑3542) citing section 209 of the Public Service Labour Relations Act (Tab 17).

25. Mr. Cavanagh filed the instant complaint against Ms. Sullivan on July 6, 2011.

[6]  The complainant represented himself and gave evidence on his behalf.

[7]  The complainant began by referring to his conflict of interest grievance (PSLRB File No. 566‑34‑3542). The Canada Revenue Agency (CRA or “the employer”) had first ordered him to cease his business venture, then had disciplined him for continuing to operate a business outside normal working hours, which it perceived as a conflict with his employment.

[8]  The complainant had not responded satisfactorily to the employer’s request to cease his business and was subsequently disciplined a second and a third time before being terminated on June 17, 2008.

[9]  The events that led to this complaint began in November 2010, when the respondent took over responsibility for the complainant’s four grievance files. She replaced Dan Rafferty, another PIPSC representative, who was approaching retirement.

[10]  On March 28, 2011, the employer asked for the disclosure of information from the PIPSC for the upcoming (April 11 to 15, 2011) grievance hearing, which included “. . . all invoices, statements of account, bills and related documents from the grievor and/or his company for the years 2003 to 2008 inclusive” (Exhibit 1, paragraph 17).

[11]  The disclosure issue created a dilemma for the complainant. As identified in Exhibit 1 at paragraph 18, the complainant objected to the release of documents requested by the employer on the basis that they were confidential and subject to solicitor client privilege. He testified that he had had discussions with the respondent about that privilege because the invoices provided the specific details of his clients’ names. He thought that the respondent wanted to establish, in her own mind, the nature of his “Client Business Valuation” operation and how it impacted the conflict of interest grievance. The complainant stated that he told the respondent that nothing was to be given to the CRA. He wanted to protect his clients’ identities because he wanted to retain them as clients following his planned departure from the CRA.

[12]  The complainant stated that the employer had first requested this information in May 2008 when in a final notice “. . . to cease and desist all outside employment and/or other business activities immediately,” it included a paragraph that stated, “You are further directed to make full disclosure of all outside activities as a valuator and in any other outside business or employment capacity during the past two year [sic] period from May 2006 to May 2008.”

[13]  Leading up to May 2008, the employer had suspended the complainant several times without asking for that information. He did not want that information in the employer’s hands.

[14]  The complainant also testified that in May 2008 he had ceased all outside activities and was preparing, in consultation with his employer, to be terminated for incapacity on June 18, 2008.

[15]  On June 17, 2008, the employer terminated the complainant for reasons of misconduct, effective the close of business on June 18, 2008.

[16]  The complainant introduced an exchange of emails between himself and the respondent (Exhibit 2) on March 30, 2011 in which she questions him about having performed work during a period of sick leave (February 28, 2007 to June 22, 2007). The complainant responds that his sick leave was related to a back issue and travelling to work and sitting all day and was not related to any mobility to perform the work itself. He had ample opportunity outside working hours to receive correspondence, analyze it and make site visits in the evenings or on weekends. For his site visits as a business valuator, the business owner would not want it known that the sale of the business was being contemplated. The respondent was concerned about how it would look at his grievance hearings to have invoices for work that would appear to have been done during a period of sick leave. Finally, the complainant told her that “. . . they will not get the invoices, those were for your use as you assured me of the client solicitor privilege . . . .”

[17]  The complainant next referred to an email from the respondent on March 31, 2011 (Exhibit 6, page 6), in which she states as follows:

All of the documents you have shared with me and our email correspondence and our conversations are subject to litigation privilege. That privilege does not extend however to the documents that the employer reasonably requests and that are relevant to the subject matter of your hearing.

Therefore, both you and I are obliged by law to (a) make best efforts to locate the requested documents, and, (b) provide these documents to the employer.

[18]  The respondent further explains that other documents could be requested and could be declared relevant by an adjudicator and advises the complainant that the employer does have the right to terminate him while he is on sick leave if it is able to prove that he performed outside work during this period.

[19]  The respondent advises the complainant that unless he allows her to file the invoices, as requested by the employer, she will have to recuse herself from acting as his representative, ask for a postponement of the adjudication hearing and make a recommendation to her employer about further representation given his refusal to cooperate.

[20]  The complainant responds that the tax returns are not an issue because the employer already has them. The issue is the invoices, which the employer does not require because it has suspended him twice for working or for being willing to work after hours and not because of the nature of that work. In his mind, the invoices are irrelevant to the suspensions. He then asks the respondent to ask for the adjournment and to support him in his request to represent himself at adjudication.

[21]  The respondent points out that if he was indeed working after hours, had been ordered to cease and desist, and was working in an area that the employer might consider a conflict with his CRA employment, then the invoices are very relevant. She then asks if he wants her to recuse herself and if he wishes to represent himself.

[22]  Finally, the complainant writes as follows:

. . . when a lawyer threatens recuse, it means the relationship has degenerated and she wants to; confidence is lost on both sides. Therefore you made the decision all ready and I have to accept that. So please do the paperwork required for self‑representation, I think an adjournment is prudent at this point as I need disclosure and to learn the process I am entering into. . . .

[Sic throughout]

[23]  The complainant felt that the union was abandoning him and that the only option was self‑representation. He also felt that he had lost control of the process. He wondered if the respondent was working for him or for the CRA.

[24]  The complainant spoke with his previous representative, Mr. Rafferty, and asked for a different representative, but none was provided. Mr. Rafferty was not available either.

[25]  Since he no longer had confidence in the respondent, the complainant felt that he had to represent himself.

[26]  On April 4, 2011, the complainant participated in a conference call with Alan Phillips, the respondent’s supervisor, and perhaps Mr. Rafferty as well, but he was not sure on that point. He talked to Mr. Phillips about the lack of union support.

[27]  Following the call, Mr. Cavanagh sent the following email to Mr. Phillips (Exhibit 7):

Mr. Phillips:

As we spoke on the phone, I would like to self‑represent my grievances in arbitration. I request that you ensure my local PIPSC office has contacted and arranged with the employer and their counsel to adjourn the arbitration as my former PIPSC representative has suggested she would do. To also inform that I will be self‑represented in all matters. I also would like assurance there will be no continued discussion of my case by Maeve Sullivan or any other representative in PIPSC or associated thereto with anyone either orally, written or other form. Mrs. Sullivan has recused herself from the file as of March 31, 2011 and started this process. Now she seems to have changed her mind and now further jeopardising my case intentionally. There is a breakdown in trust in this office, there does not seem to be the requisite competency to complete the file and therefore I am forced to self‑represent. All that I ask is that PIPSC not administratively confuse this process, as it seems they are doing, to damage my chances of success.

I would further ask that you direct all communication between PIPSC and the employer and the employer counsel be retained as well with all internal communication within PIPSC.

Again, I need confirmation the union has adjourned the arbitration, submitted to the employer I am self‑representing, and will discontinue any further discussion of my file.

If at any time you would like to discuss this matter further, including e‑mails relating to this situation, please let me know.

[Sic throughout]

. . .

[28]  The respondent wrote to the Public Service Labour Relations Board on April 6, 2011, with instructions that Mr. Cavanagh would be representing himself in his four grievances. She also advised the Board that she had spoken with the employer and that she was requesting an adjournment of the hearing to allow him to assume the carriage of his files.

[29]  The respondent also advised the Board (Exhibit 8) as follows:

. . . With respect to Board File # 566‑34‑3542, the Union notes that this is a grievance relating to the interpretation and application of the Collective Agreement, particularly Article 46.01. The Union approved of this grievance and represented Mr. Cavanagh throughout the grievance process and referred the grievance to adjudication. The Union approves Mr. Cavanagh to represent himself at the adjudication of this grievance. . . .

[30]  Mr. Phillips e-mailed the complainant on April 7, 2011 (Exhibit 9) and advised him about the action that had been taken as a result of his request to self‑represent. Included in that email was a paragraph about his request for self‑representation and the union’s recommendation to the Board about self‑representing on an issue that normally required union representation, as follows:

. . .

Finally, I should advise you that although normally the Board requires that the Union represent Grievors at the Board whose grievances are related to the interpretation or application of the Collective Agreement, in the particular circumstances of your case the Union is prepared to endorse your self‑representation in respect to the grievance relating to the “Outside Activities” article of the Collective Agreement and will so advise the Board. As for the rest of your grievances, there is no need for the Union to endorse your self‑representation, as they do not relate to the Collective Agreement.

. . .

[31]  The complainant responded on April 7 (Exhibit 25) thanking him for his assistance and asking that all documents be forwarded to the complainant’s attention.

[32]  On April 8, 2011, the Board wrote to the complainant (Exhibit 3), and in the last paragraph, it stated as follows:

. . .

An employee cannot proceed to adjudication in this type of matter without the support of the bargaining agent, the withdrawal of the bargaining agent’s support and representation, in this case, is considered a withdrawal of the grievance. This is to advise the parties that the proceedings are terminated and the file is closed.

. . .

[33]  The complainant’s reaction to this event was that this action took away the heart of his case on the issue of conflict of interest and on the other grievances. This put everything else in jeopardy. Looking at the chronology of events, he was never advised of this possible outcome. He stated, “The union was acting in bad faith by saying that I could self‑represent but knowing (or should have known) that I could not. This was central to all other matters, therefore, that’s it.”

[34]  At the beginning of cross-examination, the respondent introduced a number of exhibits to identify the chronology of the actions taken by the employer and the grievances filed by the complainant in response. These exhibits are as follows:

1) Exhibit 10 - The conflict of interest grievance filed by the complainant on October 30, 2006 in response to the employer’s October 20, 2006 order to cease his outside activities.

 

2) Exhibit 11 - A 10-day suspension imposed on the complainant by the employer on February 22, 2007 for disregarding instructions given to him on July 22, 2004 and his commitment to the employer of August 13, 2004.

 

3) Exhibit 12 - A grievance filed by the complainant and dated February 27, 2007 contesting the 10-day suspension.

 

4) Exhibit 13 - A 20-day suspension imposed on the complainant by the employer on March 5, 2008 for disregarding instructions given to him on November 5, 2003, July 22, 2004, October 20, 2006, January 3, 2007 and March 15, 2007.

 

5) Exhibit 14 - A grievance filed by the complainant and dated March 13, 2008 contesting the 20-day suspension.

 

6) Exhibit 15 - The final-level response from the employer dated May 12, 2008, denying the 10-day suspension grievance.

 

7) Exhibit 5 - The letter of termination to the complainant, dated June 17, 2008.

 

8) Exhibit 18 - A grievance filed by the complainant about ongoing harassment and contesting his termination.

 

9) Exhibit 19 - The final-level response from the employer dated January 19, 2010 denying the conflict of interest, the 20-day suspension and the termination grievances of the complainant.

 

[35]  In cross-examination, the complainant was posed a number of questions about the issue of producing copies of invoices for the employer. In Exhibit 4, a letter from the employer dated May 23, 2008, the complainant was directed to cease and desist all outside employment, and at paragraph 3, to make full disclosure of all outside activities as a valuator. He admitted that the employer never specifically requested invoices from his clients but that during discussions with his employer, it became known that he had operated a business valuation business since 1999. It had not been a conflict in the past, and the employer had signed off on it. When the employer first directed him to cease and desist his business activities, the complainant complied, in writing, but asked the employer for specifics of the conflict. When the employer failed to respond, the complainant rescinded his commitment to cease and desist, and the employer began the disciplinary process. The complainant believed that the employer might have wanted access to his invoices to establish that he was working while on approved sick leave.

[36]  The complainant was also asked about his proposed termination agreement with the employer. He was attempting to negotiate a medical termination in advance of some serious back surgery. He indicated that this issue was not relevant to the after‑hours business issue, although there was some union involvement on that issue through Mr. Rafferty. The complainant stated that the termination was his decision to make but that it would have had to happen before his surgery to protect his critical injury insurance. The employer was working on it before his surgery.

[37]  It seems that the employer had two different strategies, according to the complainant. On one hand, it was working with him to terminate him for incapacity in such a way he would qualify for disability insurance and maintain his medical and life insurance, while on the other hand, it was in the process of terminating him for cause.

[38]  During this time, the employer was trying to identify the outside work that the complainant was doing. He told the employer that he had ceased all outside work. The employer was not satisfied and subsequently terminated him.

[39]  In November 2010, the respondent took over his file. One of the first issues of concern to the complainant was the issue of solicitor-client privilege. His testimony was that at a meeting in the respondent’s office in November, she told him that she was “a lawyer and this applies.” He emphasized that this was a topic at every meeting and that there were multiple meetings. He was unable to provide any notes or dates of the meetings. The complainant stated that he had had this understanding about the solicitor-client relationship with Mr. Rafferty and that he wanted it with the respondent.

[40]  She asked him for information, in November 2010, to prepare for his April 2011 adjudication hearing. He provided that information only on March 30, 2011. He said that all the requested documents were already on the union’s file, however he had not produced the invoices for 2007 or 2008. The employer was requesting them, before the adjudication hearing.

[41]  He believed that the employer wanted the invoices to establish that there was a conflict of interest.

[42]  The situation escalated when the complainant told the respondent that she was not to forward any invoices to the employer. When she indicated that she would have to recuse herself from the file because of that refusal, the complainant insisted that she was not to provide the invoices to the employer.

[43]  On March 31, 2011, the complainant replied to the respondent as follows (Exhibit 6, page 4):

. . .

Of course I mean the invoices! Think about what you said, you will give them my invoices but not my tax returns. They already have my tax returns!! The two suspensions have no relevance to my invoices, I freely admitted to the CRA at the time I was either working or would work. I was suspended for this action not the nature of the work I was doing, that is why they did not want or need the invoices. Now, it seems you are trying to use the invoices to solve their termination problem which has no relation. Yes, it would be better to recuse yourself from the case notwithstanding the impossible position this puts me in. You know as well as I do, you are the only competent person in the office. You can ask for an adjournment if you want, but what is preferable, is that you submit and support that I represent myself in this arbitration.

. . .

[44]  The respondent replied that she would continue with the representation if the complainant gave the invoices to the employer, but that was not satisfactory to him.

[45]  There followed an exchange of emails confirming that the respondent was still his representative but seeking clear direction from him that he wanted to represent himself.

[46]  The complainant replied on March 31 (Exhibit 22, at paragraph 5) as follows:

. . .

. . . [W]hen a lawyer threatens recuse, it means the relationship has degenerated and . . . confidence is lost on both sides. Therefore you made the decision all ready [sic] and I have to accept that. So please do the paperwork required for self‑representation, I think an adjournment is prudent at this point as I need disclosure and to learn the process I am entering into. . . .

. . .

[47]  The respondent continued to press the issue of being provided clear written instructions, and the complainant continued to insist that he was now representing himself following her recusal.

[48]  The complainant was asked if he thought at that time that he was losing control of his litigation and that he wanted to direct or control the process. He responded that he wanted to use his expertise to assist. Professional designation issues are very technical. He could not trust the respondent to look after his best interests. He wanted to decide what was of relevance.

[49]  The complainant agreed that he and Mr. Rafferty had had their battles as well and that they had gone back and forth on the issues. There was another grievance for which a strategy had been developed, and then Mr. Rafferty left. Ms. Sullivan had a different approach – “my way or the highway.” With Mr. Rafferty, there had been sparks. Mr. Rafferty had developed the grievances. The conflict of interest grievance was the foundation for the complainant’s defence; he felt that the nature of the work was not relevant.

[50]  The complainant agreed that Mr. Rafferty did not say that none of his outside work was relevant. He also agreed that the employer did think that his outside work was relevant. The complainant agreed that the issue was a conflict of interest, and he was terminated because of his refusal to cease and desist his outside work.

[51]  The complainant opted for self‑representation as a result of the respondent’s recusal statement. He did not want the invoices disclosed. When Ms. Sullivan offered not to recuse herself if the complainant provided the invoices directly to the employer, the complainant felt that his hand was being forced. He would produce them only if ordered to by the adjudicator.

[52]  The self‑representation issue was resolved in an exchange of emails between the union and the complainant, (Exhibit 6) as follows:

April-01-2011 9:24 AM – [respondent to complainant

Please let me know what you have decided today and, in particular, whether you will continue to refuse to allow me to produce your invoices to the employer.

04/01/11 9:53 AM – [complainant to respondent]

I don’t understand this question, I have emphatically stated from the first time we met and in every communication verbal and written since that time that no invoices go beyond you. Be no means should any information be forwarded, shared or discussed with anyone. I can’t be more clear than that.

April-01-11 12:11 PM – [respondent to complainant]

I have re‑read and then shared your emails with my colleagues. It is our view that you have not provided me with sufficient clarity in order for me to inform the Board or opposing counsel that I am no longer representing you. As you have not provided me with a clearly written email stating that you elect to represent yourself along with your contact information for the Board, I am assuming that we are moving forward with me as your representative. For the reasons I have set out in earlier correspondence I am obliged by law to disclose your invoices to opposing counsel because they are documents that are relevant to the subject matter of our litigation. I will see you next week to prepare for our hearing.

April-04-11 10:16 AM – [respondent to complainant]]

Further I consider any discussion with your colleagues about my file and any discussion about our conversations a breach of trust. It is one thing to discuss the implications of recusing yourself from the file, but in no way can you discuss any information, from whatever form, with any of your colleagues. Once you recused yourself, and I was forced into self‑representation, PIPSC is no longer privy to any of my information. As a lawyer I know you know this, however I need confirmation from you in a rely to this email that since you stated that you had to recuse yourself from the file in the email dated march 31, 2011 at 1:28pm, you have not discussed, verbally, in written form or any other way, my file with anyone, whomsoever.

April-04-11 10:16 AM – [respondent to complainant]

Please see my earlier email regarding my continuing representation of you. I expect to see you tomorrow unless I hear otherwise from you.

April-04-11 10:51 AM – [complainant to respondent]

You stated you recused yourself from the file. I accepted. Now I will take on the responsibility for representing myself. I don’t know how clear I have to be on this. Further, I have been emphatic about you sending NOT NEVER EVER any invoices to anyone. THERE IS NO NEED FOR A MEETING THIS WEEK.

PLEASE SEND ME ALL INFORMATION YOU HAVE IN YOUR POSSESSION RELATING TO MY GRIEVANCES. PLEASE DO NOT COMMUNICATE ANYTHING RELATING TO MY FILE TO ANYONE, INCLUDING YOUR COLLEAGUES.

April-04-11 11:24 AM – [respondent to complainant]

I continue to be your representative until such time as you terminate our relationship. I have told you my obligations under the law. Please let me know how you want to proceed.

April-04-11 12:07 PM – [complainant to respondent]]

I have already done this, unless there is a certain script you have in mind or prefer sky writing, then it is clear. As of last Thursday you have broken the relationship, you have recused yourself and I have decided to press forward myself. . . .

April 4, 2011 – 12:09 PM – [complainant to respondent]]

I will be proceeding to make a complaint to PIPSC and the LSUC.

April 4, 2011 1:03 PM – [complainant to respondent]]

TERMINATION OF THE RELATIONSHIP

April 4, 2011 1:21 PM – [complainant to Mr. Phillips]

As we spoke on the phone, I would like to self‑represent my grievances in arbitration. I request that you ensure that my local PIPSC office has contacted and arranged with the employer and their counsel to adjourn the arbitration as my former PIPSC representative has suggested she would do. To also inform that I will be self‑represented in all matters. . . .

April-07-11 6:38 AM – [Mr. Phillips to complainant]

. . .

Now that I have received your email, below, I understand that you would like to represent yourself at the hearing of your grievances currently scheduled to proceed on April 11, 2011.

. . .

Finally, I should advise you that although normally the Board requires that the Union represent Grievors at the Board whose grievances are related to the interpretation and application of the Collective Agreement, in the particular circumstances of your case the Union is prepared to endorse your self‑representation in respect of the grievance relating to the “Outside Activities” article of the Collective Agreement and will so advise the Board. As for the rest of your grievances . . .

April 7, 2011 – 10:24 AM – [complainant to Mr. Phillips]

Thank you for your assistance in this matter. I would then request that all documents relating to this file be forwarded to me. This would include all internal and external correspondence relating to my grievances from 2005 to current.

[Sic throughout]

[53]  On April 6, 2011, the respondent wrote to the Board, advising of the complainant’s request to self‑represent. It also stated the following:

. . . the Union notes that this is a grievance relating to the interpretation and application of the Collective Agreement, particularly Article 46.01. The Union approved of this grievance and represented Mr. Cavanagh throughout the grievance process and referred the grievance to adjudication. The Union approves Mr. Cavanagh to represent himself at the adjudication of this grievance.

[54]  On April 8, 2011 the Board wrote to the complainant, dismissing the grievances as follows:

. . .

As an employee cannot proceed to adjudication in this type of matter without the support of the bargaining agent, the withdrawal of the bargaining agent’s support and representation, in this case, is considered a withdrawal of the grievance. This is to advise the parties that the proceedings are terminated and the file is closed.

. . .

[55]  Subsequently, in decision 2014 PLSRB 21 rendered February 21, 2014, it was confirmed that the grievor could not self-represent on his collective agreement grievance. The complainant did not understand the consequences of his plan to self‑represent and he did not question Mr. Phillips about the issue in his April 7, 2011 response. He stated that if he had known that he would not be able to proceed without union representation, he probably would have asked for a different representative because of the breach of trust. He indicated that the Board told him that he needed to have the union’s representation, but the union did not want him.

[56]  In re‑direct and in summation, the complainant stated that grievances are both strategic and technical. Another PIPSC member had grieved a similar situation and had developed a strategy with Mr. Rafferty, who was responsible for all responses. The complainant drafted some of his own responses, Mr. Rafferty drafted others; they worked together. The complainant handled the technical part, and Mr. Rafferty handled the union part. Mr. Rafferty signed some grievances on the complainant’s behalf. As the respondent progressed on the file, the issue became the invoices. At their first meeting, the complainant told her that he wanted his clients protected. The invoices were irrelevant and were part of his personal life. He stated, “The union controlled the file, I wasn’t leading the pony.”

[57]  The respondent testified on her own behalf. She is responsible for providing advice and assistance, on a daily basis, when the union decides that representation is warranted including providing advice on any decisions to terminate representation.

[58]  The respondent is an ERO. She stated that she is not legal counsel to any PIPSC member.

[59]  Legal counsel would begin by asking for a retainer. The client would provide instruction, communications would be privileged, and a solicitor-client relationship would exist and would be sacrosanct. Nothing would be disclosed without client instructions. Legal counsel cannot be summonsed.

[60]  As an ERO, the respondent is appointed to be a given PIPSC member’s representative. The PIPSC member has no choice as to who is appointed. He or she could request a change in representative, but it is not an entitlement. The union would fairly consider a change and would consider the circumstances of the request.

[61]  As an ERO working for a union, and not for a client, the respondent is excluded from the Act, and solicitor-client privilege does not exist.

[62]  The respondent stated that no discussion took place about privilege. If the complainant had asked about privilege, she would have asked him why he was asking. Consequences could have arisen from such a discussion.

[63]  In an email dated March 31, 2011, the respondent explains that litigation rules provide that relevant documents must be provided to the employer when requested.

[64]  The respondent took over the file in November 2010 at the request of Mr. Rafferty, who told her that the complainant did not appear to be happy with him. Mr. Rafferty was approaching retirement, and a fresh set of eyes might have been good for the complainant. The grievances had all been referred to the Board, although no formal decision to proceed had yet been made based on their merits.

[65]  The respondent was asked to make an assessment as to whether to proceed. She met with the complainant in early December 2010 and found it difficult to get to the heart of the issues. She asked for information to make the assessment. She sent follow‑up emails for information. She sought info on outside income. No corroboration was forthcoming. They met again at the end of January 2011, but there were still difficulties with getting questions answered.

[66]  The respondent then spoke with Mr. Rafferty and told him that not enough information was provided to make a proper assessment. Mr. Rafferty suggested that she move forward with what the complainant wanted on the termination grievance and continue to obtain information through email.

[67]  In an exchange of emails with the employer representatives, in anticipation of the upcoming adjudication hearing, the union sought disclosure of certain relevant documents. In its reply, the employer asked for documents as well, which is when the rift appeared between the parties to this complaint.

[68]  The employer asked to be provided with “. . . all invoices, statements of account, bills and related documents from the grievor and/or his company for the years 2003 to 2008 inclusive” (Exhibit 20).

[69]  When the respondent forwarded this request to the complainant, he responded that he did not want the documents handed over to the employer and, that he would consider it a breach of trust. He had provided them only to the union and did not expect them to be handed over to the employer (Exhibit 6, page 5).

[70]  The respondent responded that unless he gave his permission to hand over the documents, she would have to recuse herself from the file and to make a recommendation to the PIPSC on whether it should proceed in light of the complainant’s refusal to cooperate (Exhibit 6, page 5).

[71]  Mr. Rafferty was again consulted. He recommended that representation continue but that perhaps the complainant should be advised to provide the invoices to the employer himself. The respondent was to continue to exchange emails with the complainant unless he sent a “termination of relationship” message to the union.

[72]  Emails were exchanged, but the union continued to represent the complainant. It sought corroboration that he was clearly and unequivocally demanding to represent himself and found that his responses, which continued to imply that the respondent had broken the representation bond by recusing herself, were not satisfactory. He did not formally notify the union in a manner satisfactory to it until his April 4, 2011 email to Mr. Phillips.

[73]  A conference call was held between the respondent, Mr. Rafferty, Mr. Phillips and three PIPSC legal counsel. During the call, the respondent and Mr. Rafferty spoke about the difficulties with the representation of the complainant. Recent emails were reviewed. Counsel agreed with the then-current approach. The complainant needed to cooperate to be represented.

[74]  During the conference call, an email was received from the complainant seeking self‑representation on his grievances. The email was forwarded to counsel.

[75]  Counsel then advised those present on the conference call that the complainant had made a decision.

[76]  The union then had to advise the Board of the change in representation, ask for an adjournment to accommodate the complainant and inform the employer to obtain its consent to the adjournment.

[77]  The union was then to write to the complainant to inform him that he could seek other representation.

[78]  During the discussion, it was acknowledged that since one of the grievances involved the interpretation and application of the relevant collective agreement, it was possible that the complainant could not proceed without the PIPSC’s approval and representation. It was questioned whether the complainant could properly continue to represent himself and whether he had lost the opportunity to present his collective agreement interpretation grievance. It was acknowledged that the loss of such an opportunity could have been important to the other grievances. The union decided to write to the complainant and advise him that the union would support his self‑ representation, that the union had no issues of concern and that it would attempt to craft language that would allow the Board to hear the grievance.

[79]  Mr. Phillips arrived late to the conference call as he had been talking with the complainant. The complainant had called Mr. Phillips to advise that he wanted to discontinue being represented by the union.

[80]  The respondent then prepared two letters. The first would go to the complainant and would summarize the conference call and would be signed by Mr. Phillips. The second was to be from Mr. Phillips to the Board. The letters were to be reviewed by Mr. Rafferty and the union’s legal counsel before being mailed.

[81]  The respondent testified that it was important to communicate to the complainant that the Board might not approve the union’s action and to identify the greater risk for the conflict of interest grievance.

[82]  In the subsequent exchange of correspondence, advice was forwarded to the complainant, but the timing misfired when the union wrote to the Board on April 6, 2011. As the result of an email malfunction, it did not advise the complainant until April 7. The respondent acknowledged that the complainant would not necessarily have understood the consequence of his demand to self‑represent until April 8, when the Board wrote to him about closing the file on his conflict of interest grievance for lack of union representation.

[83]  The complainant cross‑examined the respondent. She indicated that while he thought that the conflict of interest grievance was central to his overall strategy, the union did not share his perspective. However, it was central to the disagreement between Mr. Cavanagh and herself. While the conflict of interest grievance was important to the complainant, the facts were that he failed to cease and desist his external work and had ignored repeated instructions from the employer to do so, which resulted in his suspensions and dismissal, based on a breach of the employer’s code of ethics.

[84]  The respondent testified that solicitor-client privilege was not discussed during their initial conversation. They later exchanged emails about solicitor-client privilege as it applied to documents and the communication of documents in preparation for litigation. The complainant continued to refer to himself as a client in the process, which she clearly emphasized in her testimony was not the case.

[85]  The respondent also testified that she was not aware that the complainant was working on another deal with the employer which involved his resignation. Mr. Rafferty had been involved with some of those discussions, but the deal did not go forward for a number of reasons.

[86]  The respondent testified about the invoices in question and the fact that she had continued difficulty obtaining them as well as other information from the complainant and that it hampered her ability to prepare for the upcoming adjudication and to determine if the invoices were relevant to the time frame that the employer was concerned about. The invoices helped the respondent establish periods when the complainant was compliant with his employer’s instructions and periods when he was not. It was important that she had all available information to assess the strength of the case.

[87]  The invoices were relevant because they dealt with the nature of the complainant’s outside work. It appeared that he worked during periods of sick leave. The complainant pointed out that the work could have been done outside his normal hours of work or on weekends or that the invoices were vague about any time frame when work was actually performed. The invoices were dated but did not identify when work was performed. For that reason, he thought that they were not factually relevant to the issue.

[88]  The respondent summed up the discussion on the conference call of April 4, 2011. The union thought that the complainant would be able to represent himself on all four grievances, even though one of them concerned the interpretation and application of the collective agreement. The union would write to the Board and support his decision. If the Board did not allow it, there was really no prejudice, as he would still be able to carry forward with the other three grievances.

[89]  Ms. Sullivan stated that there are times when the union withdraws its support, even on collective agreement issues. However, in this case it was the complainant’s decision to sever the relationship. It had become apparent to her that he would not cooperate. The union could have withdrawn because of this lack of cooperation, but he acted first.

[90]  Finally, the complainant asked why he was not expressly advised about the possibility that he would not be allowed to proceed on his own. The respondent told him that it was covered in Mr. Phillips’ email of April 7, 2011.

Summary of the arguments

[91]  The complainant outlined the reasons for his complaint. He wants the union to re‑engage his case.

[92]  The complainant believed that his relationship with the union broke down because a lack of trust developed with the respondent.

[93]  Originally, Mr. Rafferty had the complainant’s file. They worked together, developed a strategy, tried to find a solution, and were working towards that when the CRA became very aggressive with the complainant’s refusal to follow instructions, which caused a breakdown in the complainant’s relationship with Mr. Rafferty.

[94]  When the respondent took over, she denied having all the information needed, but it was in the file. She had the file for four months and made no progress, would not follow his advice on the invoices and played semantics with references to litigation and solicitor-client privilege issues.

[95]  The respondent used scare tactics to force him to do something that would clearly jeopardize his case and make his clients vulnerable. He alleged that she tried to bully him. He stood up to her and as a consequence he became uncooperative. He would not allow his representative to lead his case. The union created the animosity by developing its own strategy. The complainant stated as follows:

. . .

Ms. Sullivan didn’t understand my strategy, she didn’t get it. The reason I am here is to get my Conflict of Interest grievance back. It lays the groundwork for the other grievances. This was the first grievance and should be heard first. I have to establish that the employer must provide me with reasons to cease and desist and when that is done, the other grievances go away because the discipline was inappropriate.

The Union should have told me that I would not be able to self‑represent on my COI grievance, but I was told by two reps that I could do this. The notice to me was untimely, and not even in direct language. They knew that they had this obligation to tell me and they didn’t.

This is bad faith, therefore, provide me with outside counsel.

. . .

[96]  The union argued that the onus was on the complainant to establish that he has been unfairly represented, and he has not met his burden.

[97]  To put everything into context, four grievances were filed. In 2010, the respondent was assigned the files. At that time, no assessment had yet been made about proceeding to adjudication. Her first task was to assess the files.

[98]  This was a big task. She had difficulty obtaining the facts, information and necessary documents, which she repeatedly requested. The invoices were provided to her only on March 30, 2011, less than two weeks before the hearing. They still did not provide a clear picture of what had happened or when. She still had no ability to assess the situation to put forward the best case.

[99]  Part of the respondent’s job is to advise PIPSC members when information might be problematic. The invoice dates that coincided with periods of sick leave could have been a problem. Then there was the introduction of the solicitor-client privilege issue, which clearly established a rift between the parties. The respondent wanted the invoice information in order to assess the situation and the complainant did not want the information in the hands of his employer. However, she was doing her job. She was collecting all the information needed to effectively assess the merits of the case going into the adjudication hearing. She cannot be faulted for that.

[100]  But the issue has become credibility. Is the respondent’s position more credible than the complainant’s position? The complainant insisted that he would determine everything about where and when to disclose information and about what to disclose.

[101]  Leading up to the hearing date, the respondent continued to represent the complainant and continued to seek his cooperation. The issue identified by the complainant was that the respondent effectively removed herself as his representative when she told him that she would have to recuse herself if he refused to allow her to disclose documents to the employer.

[102]  The respondent conferred with Mr. Rafferty and convened a conference call to assess the situation. The union reviewed the emails and the grievances. It reviewed the substance of the Phillips-Cavanagh phone call. It determined that the complainant did not want union representation.

[103]  The union then proceeded to obtain an adjournment and determined that the complainant could proceed on his own. It decided to write to the Board to inform it of that decision. Finally, it discussed the chances of success of the conflict of interest grievance and how that would affect the complainant’s other grievances. Its concern was that the employer had alleged misconduct going back to 2003 and this was a bigger issue than the conflict of interest issue.

[104]  Inadvertently, the notice went to the Board before the email went to the complainant. Once the complainant had the email but before the Board wrote to the complainant, his response to the union was not, “Can I change my mind?” but “Thank you and send me my info.”

[105]  The complainant suggested that he might have worked harder had he known about the consequences; he might have given different instructions. It is clear that he still believes that he is a client and that he has the right to instruct his representative.

[106]  It is difficult to accept that his instructions would have been different, and the union does not accept that assertion.

[107]  In examining the case law, the union relied on Baun v. National Component, Public Service Alliance of Canada, 2010 PSLRB 127; and Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107, to establish that there is no absolute right to continued representation and that if a union member is uncooperative, the union has the ability to decline further representation.

[108]  The complainant wanted control of the issues, to dictate their relevance and to determine disclosure. Ultimately, he would not cooperate. It was his decision to withdraw. He has fallen far short of the onus he bears.

Reasons

[109]  The factual centre of this dispute began over the issue of invoices. The union felt that the complainant was obliged to disclose them for two reasons. Firstly, it wanted them so that it could assess and prepare his case. On this point, the union’s position was reasonable and the evidence discloses that the complainant failed or refused to accept the union’s position on this issue. Rather, the complainant’s position was that the union was little more than his mouthpiece. As he himself stated in argument, he would not allow his representative to lead his case. The union understandably had serious concerns about proceeding with his case on the basis of incomplete evidence and in light of the complainant’s intransigence, particularly on an issue such as conflict of interest and outside employment. It also, understandably, expressed concern that there could be an issue regarding whether or not the complainant had worked on his outside business during a period of sick leave and wanted to view the invoices in an effort to address this possible issue. The complainant was aware of the reasons for which it wanted him to disclose the information. As outlined in paragraph 11 of this decision, he testified that he understood that the respondent wanted the invoices to establish the nature of his business and how it impacted the conflict of interest grievance. The union was entitled to explore such issues and to expect cooperation from the complainant in the preparation of his grievances. A union is not obliged to represent every grievor at adjudication and can, within limits, select those cases which it chooses to represent, and can refuse to do so if, for example, its evaluation of the merits of the grievance leads it to conclude that it should withdraw representation or in the event that a grievor refuses to cooperate with it.

[110]  In this case, I find that the union was, in March 2011, in a position to advise the grievor that it would no longer represent him as a result of his refusal to cooperate with it. The union’s requests for information had been met with refusal and delay by the complainant and his attitude made it clear that he expected to be in charge of his defense rather than the union. Given that the collective agreement was in issue and given the union’s responsibility to the bargaining unit as a whole, it was reasonable for the union to decide to withdraw representation, even if such a withdrawal would mean that the grievor could not proceed on his own with one of his grievances. However, I also find that the issue of the consequences of such a decision is relevant to the issue of the union’s ability to decide to withdraw representation and will return to that issue later in these reasons. For the time being, I find that as a general rule, a grievor’s refusal to cooperate with his or her union would provide it with grounds on which to withdraw representation.

[111]  The second reason for which the union felt that he was required to disclose the invoices to the employer was its evaluation that they were relevant to the case against him. However, in its discussions with the complainant, the issue of solicitor client privilege became the focus of the complainant’s assertions and indeed the issue was thoroughly canvassed by both parties in the hearing. Although the union is perhaps correct in its evaluation that an adjudicator would decide the invoices were relevant and that no solicitor-client privilege existed between it and the complainant, other forms of privilege, such as litigation or labour relations communications privilege might well attach to the invoices. Indeed, the union raised the issue of the possibility of litigation privilege attaching to the invoices in an email to the complainant dated March 31, 2011. While a claim of privilege might have given the union grounds on which to dispute the employer’s request for disclosure, it was not required to argue that any form of privilege operated to exclude the invoices from disclosure if a proper evaluation of the issue lead it to believe that doing so would not provide the result desired or was not in the best interests of the bargaining unit. I find that in this case, the union considered the issue in a reasonable manner and came to a reasonable conclusion that disclosure should be made, a conclusion that it was entitled to come to. The complainant’s representative was aware of the factual issues in his case, had considered the complainant’s arguments as expressed in his email correspondence with her and had come to the conclusion that they were relevant to the issues between the complainant and his employer and would likely be ordered disclosed by an adjudicator. The union is not required to be correct in its evaluation of the merits of the issue, only reasonable, and in this case, it was.

[112]  The critical question in this case is whether the union abdicated its responsibilities towards the complainant in violation of the Act, by acting as it did without first expressly advising him of the possible consequences? In the particular circumstances of this case, I find that it was not. First, I find that the withdrawal of representation did not come as a surprise to the complainant. The union, in an email dated March 31, 2011 (Exhibit 6, page 5) clearly advised the complainant that it would withdraw representation if he did not begin to cooperate, although it did not clearly set out in that email the consequences of such a decision on its part. Despite clear warnings from the union that it would not continue to represent him unless he changed his ways, the complainant did not become more cooperative and instead stood his ground.

[113]  I also find that the evidence discloses that in any event, had the union warned the complainant of the consequences of its withdrawal of representation, such a warning would have made no difference to the complainant’s attitude and behaviour. I find, on the basis of the evidence before me, that the complainant would have persisted in his approach to the union and would have filed an unfair labour practice complaint rather than changing his behaviour. Indeed, in this hearing, he clearly argued that the union should be made to represent him anew but there was no acknowledgement on his part that his behaviour also had to change. Indeed, in his testimony he stated that he felt that the union was abandoning him and that he had “lost control of the process”. There was no acknowledgement at all that in cases of grievances that raise a question regarding the interpretation or application of the collective agreement, it is the union that is and must be in control. In argument he maintained that he and not the union would be the one to direct the case. It was the complainant’s misapprehension of the union’s role in this matter which lead to the breakdown in the relationship between the parties and I find that that attitude on his part remains to this day. In his argument, the complainant stated that the breakdown in his relationship with the union began when CRA “became very aggressive with the complainant’s refusal to follow instructions” without any acknowledgement that he had played any role in that breakdown. He also argued that his relationship with Ms. Sullivan in particular was rocky at least in part because she “would not follow his advice on the invoices”. Even today, the complainant continues to believe that he must be in charge of his case and of all decisions regarding its presentation, relegating the union to playing the role of simple hired gun. He argued that the union had developed “its own strategy” and that he had stood up to the respondent’s “bully” tactics by becoming uncooperative. All of this leads me to conclude that the complainant continues to view the union as little more than a mouthpiece that is obligated to pursue the case in the manner dictated by the complainant. While he objected to what he described as Ms. Sullivan’s “my way or the highway” approach, he failed to appreciate that he himself had also adopted such a position. I find that it is this belief on the complainant’s part which lead to the breakdown in the relationship and that he persists with this belief to this day.

[114]  The complainant is convinced that the failure of the union to carry forward his conflict of interest grievance means that the issue of conflict of interest and its role in his termination cannot be addressed. On this, I believe that he is mistaken. I should first caution that I am not making a finding regarding what arguments can and cannot be advanced before the adjudicator seized of his termination grievance. First, I am not seized of the grievance and it would therefore be improper for me to make any finding on the matter. Secondly, the parties have not argued the issue before me. However, I have read the termination letter (Exhibit 5) and it clearly states that the grievor was terminated for having refused to cease his activities as an outside business valuator given the employer’s assertion that such work constituted a conflict of interest. The issue of conflict of interest is at the heart of his termination and, it appears to me, will be at the heart of any hearing at adjudication into the merits of his termination grievance. While a grievance founded in the collective agreement article on conflict of interest might be necessary for a grievor who has complied with the employer’s order to wind up their outside business but who wishes to contest that order, that is not the factual scenario in this instance. In this case, the employer accuses the complainant of not having ceased to carry on his outside business and it has terminated him for that reason. As his termination is disciplinary in nature and based on his alleged failure to follow an employer order, the employer’s ability to have issued that order will be in issue before the adjudicator.

[115]  Even if this were not the case, and the complainant’s right to argue that no conflict of interest existed ended with the withdrawal of the union’s support, the complaint would still be unfounded as the union has the right to withdraw representation in all cases where it does so within the limits of the duty of fair representation. As I have already found, withdrawing representation from a member due to their lack of cooperation is an acceptable reason for refusing to represent and in this case, the union had even warned the complainant that it would do so in its email of March 31, 2011. Nothing in the evidence indicates to me that the complainant would have altered his behaviour had he been warned that the union’s withdrawal of representation would have resulted in the withdrawal of his collective agreement grievance. Indeed, I have come to the opposite conclusion and am of the firm belief that nothing would have changed, even had he been so warned.

[116]  The parties spent a great deal of time on the issue of who ended the relationship first. The complainant claimed, both at the hearing and in all his emails, that the union had effectively withdrawn from its representation of him, even though the union, in all of its subsequent correspondence to the complainant, maintained that it was still representing him and would continue to do so until it received express instructions that they were to withdraw. I find that the issue of who ended the relationship first is not relevant to the matter in issue. Rather, the issue in this case is whether or not the union was within its rights to end its representation of the complainant and whether it had to first advise him of the consequences of that withdrawal. I have already found that regardless of who ended the relationship first, the union was within its rights, in March of 2011, to advise the complainant that it would no longer represent him. I have also found that in the circumstances of this case, the union did not first have to advise the complainant of the consequences of such an action, particularly since doing so would have made no difference.

[117]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

Order

[118]  The complaint is dismissed.

March 28, 2014.

Michael F. McNamara,

a panel of the Public Service Labour Relations Board