FPSLREB Decisions

I. Complaint before the Board

1 Diane Brenner (“the complainant”) was an employee of the National Energy Board (“the employer”) and was a member of the bargaining unit represented by the Professional Institute of the Public Service of Canada (“the union”). On July 14, 2010, she filed a complaint under section 190 of the Public Service Labour Relations Act (PSLRA), alleging that the union violated section 187 of the PSLRA. The complainant alleged arbitrary and bad faith conduct, as follows:

Arbitrary Conduct:

Union failed to respond to my requests for clarification as to what process(es) they would be willing to undertake on my behalf should my employer proceed with their threat to terminate my employment while I am on certified medical leave. The broader issue of harassment in the workplace, which led to my protracted illness, has also not been addressed.

Bad Faith Conduct:

Union representative previously assigned to me told me, among other things, that she did not believe my illness was caused by the treatment I received in the workplace, that my disability lawyer gave me bad advice, and that she did not believe Sun Life would terminate someone’s benefits while they were still sick. I found the union representative’s attitude towards me hostile, judgmental, and dismissive.

2 As corrective action, the complainant asked that she receive “… respectful and fair representation for termination of employment.”

3 The union responded to the complaint on August 23, 2010. It noted that the complainant bore the burden of establishing that it had acted in a manner that was arbitrary, discriminatory or in bad faith and argued that the complainant had not met that burden. In particular, the union stated that it had attempted to represent her in a number of workplace issues and had tried to understand her workplace concerns. It stated that she had not returned phone calls to and had not followed up with her representative. The union also argued that by writing directly to the union president to obtain information and to complain about her representative, the complainant had not followed its internal protocols.

4 On September 20, 2010, the complainant replied to the union’s response to the complaint. She stated that she wrote directly to the union president because her representative told her that decisions about recourse for terminations of employment were made at the national level. She also stated that although she had received voice mails stating that she should expect a response from the president’s office, she never received one. She said that she had been ill and therefore did not respond as quickly to voice mails as she had when she had been well. She explained that, because of the unpredictable nature of her health, she preferred to deal with her complaint by way of written submissions rather than by way of an oral hearing.

5 On November 16, 2010, I held a pre-hearing teleconference with the parties. During the teleconference, the union indicated that it was willing to provide representation to the complainant with respect to her termination of employment. The parties agreed that the complaint should be placed in abeyance until January 12, 2011, in order to allow them to discuss its resolution.

6 The parties were not able to negotiate a resolution to the complaint. On January 12, 2011, the complainant advised that she had acquired new information that convinced her that the union had acted in bad faith and had engaged in arbitrary conduct toward her. She asked that the complaint be scheduled to be heard. For its part, the union asked that the matter continue to be held in abeyance because it had filed a grievance against the termination of the complainant’s employment, and it was concerned that proceeding with the complaint would strain the parties’ relationship, to the detriment of the termination grievance. The union also contended that the complaint was premature.

7 I ordered that the complaint be held in abeyance pending the outcome of the grievance against the complainant’s termination of employment in order to prevent any disruption of the union’s representation on that matter. The matter continued to be held in abeyance until October 30, 2012, when the complainant advised that the termination grievance had been heard and decided. She then asked that this complaint be placed on the hearing schedule.

8 Another pre-hearing teleconference was held on May 14, 2013. At that time, the union advised that it intended to file a preliminary objection on the basis that the complaint was moot. It was agreed that the objection would be dealt with at the hearing.

II. Summary of the evidence

9 At the outset of the hearing, the parties submitted an agreed statement of facts, with attached documents (Exhibit C-1). In addition, the complainant testified and submitted an additional document in evidence. Anna Preto and Joanne Harvey testified on behalf of the union.

10 The agreed statement of facts (Exhibit C-1, Tab 1) provided the following:

…

1. On July 12, 2010, Diane Brenner filed a complaint under section 190 of the PSLRA alleging that The Professional Institute of the Public Service of Canada (PIPSC) practiced in [sic] an unfair labour practice. Particularly, the duty of fair representation (Attached hereto as Appendix A) [sic].
2. The Complaint alleges that Anna Preto, “union representative previously assigned to me told me, among other things, that she did not believe my illness was caused by the treatment I received in the workplace, that my disability lawyer gave me bad advice, and that she did not believe Sun Life would terminate someone’s benefits while they were still sick. I found that the union representative’s attitude towards her was hostile, judgmental, and dismissive”.
3. On August 23, 2010, the Institute filed a response to Ms. Brenner’s complaint (Attached hereto as Appendix B).
4. On September 20, 2010, Ms. Brenner wrote a letter in reply to the Institute’s response (Attached hereto as Appendix C).
5. Further to the pre-hearing teleconference of November 16, 2010, as directed by the Board member, the complaints under section 190 of the PSLRA were placed in abeyance in order to allow the parties to discuss the resolution of the complaint.
6. On December 20, 2010, a termination grievance was filed by the Institute on behalf of the Complainant.
7. On April 27, 2011, the employer National Energy Board (NEB) denied the termination grievance at the final level of the grievance process under the NEB 2011 collective agreement (Attached hereto as Appendix D).
8. On June 23, 2011, the termination grievance (reference no. 561-26-473) was referred to arbitration by the Institute (Attached hereto as Appendix E).
9. On December 14, 15, and 16, 2011 as well as on May 7, 8 and 9, 2012 the Institute represented the Complainant in an arbitration hearing dealing with her termination from NEB.
10. On September 5, 2012, the termination grievance decision before arbitrator Paul Love (file no. 2011-15) was issued (Attached hereto as Appendix F).
11. Correspondence between Anna Preto, Institute representative and the Complainant was exchanged from June 3, 2009 to April 19, 2010 (Attached hereto as Appendix G).
12. Correspondence between Anna Preto and NEB representatives was exchanged between June 11, 2009 and April 16, 2010 (Attached hereto as Appendix H).
13. Correspondence between Joanne Harvey, Chief of Regional Operations for the Institute, and Anna Preto was exchanged from May 17, 2010 to June 22, 2010 (Attached hereto as Appendix I).
14. Institute headquarters’ file for the complainant included related correspondence and documents (Attached hereto as Appendix J).
15. Between December 2009 and May 2010 three different individuals acted in the Chief of Regional Operations (CRO) position for the Respondent. Danielle Auclair was on leave as of December 14, 2009. André Lortie was acting CRO from March 15 to May 7, 2010 and Joanne Harvey was acting CRO from May 11, 2010 until her permanent appointment on April 4, 2011.
16. On June 14, 2010 Nicole Gauthier, Executive Assistant to the Office of the President called the complainant indicating that the Institute would contact her later on that same week.
17. The Policy on Conflict Resolution for Internal Labour Relations Matters describes the Institute’s process when dealing with an internal request for reconsideration (Attached hereto as Appendix K).
18. The complainant did not receive a response from the Institute to her letters of March 15, April 21 and May 28, 2010.
19. This statement of facts does not prevent either party to this complaint from calling additional oral evidence if required.

11 The complainant testified that she began experiencing workplace difficulties in 2006 and that she solicited her union’s help. She stated that she had no issue with the assistance provided to her by her union representative until 2010. However, on March 10, 2010, she had a 40-minute telephone conversation with her union representative, Ms. Preto, about a letter she received from the employer. She was not happy with the position being taken by Ms. Preto and wrote to the union president, Mr. Gary Corbett, on March 15, 2010 (Exhibit C-1, Tab A). Her letter explained her reaction to Ms. Preto’s actions. She also asked that a new representative be assigned to assist her.

12  The complainant did not receive a response from Mr. Corbett, and on April 21, 2010, she sent another letter to him (Exhibit C-1, Tab A). When she still did not receive a response, she sent him a third letter on May 28, 2010 (Exhibit C-1, Tab A). On June 14, 2010, she received a phone call from Mr. Corbett’s assistant, who advised her that Mr. Corbett would contact her soon. However, she did not receive a response from Mr. Corbett. In cross-examination, the complainant acknowledged that the letters she sent to Mr. Corbett did not use the word “urgency” and that in them she asked for advice and assistance in the event that her employment were terminated.

13 The complainant testified that she later learned that Ms. Preto claimed to have tried to contact her in March and April 2010, but was unable to reach her and was unable to leave a message because the complainant did not have voice mail. However, the complainant testified that she did have voice mail and entered into evidence her telephone bill (Exhibit C-2). The complainant stated that she kept a log of all incoming calls. In cross-examination, she explained that she extracted the numbers of all incoming calls from the call display on her phone. She agreed that her telephone service blocked calls from 900-number calls. She acknowledged that the telephone log was not an official document and that it was possible that she would not have noted blocked calls and that she might have missed some calls.

14 In cross-examination, the complainant agreed that Ms. Preto did not refuse to represent her. She acknowledged that Ms. Preto had been successful in persuading the employer to postpone making a decision about terminating her employment. She acknowledged that Ms. Preto advised her to write to the employer and that the letter to the employer dated March 11, 2010 (Exhibit C-1, Tab G), was written on Ms. Preto’s advice. She stated that Ms. Preto would have had no idea that she was unhappy with her representation. She also stated that had her employment been terminated at that point, she would have sought assistance from Ms. Preto and would have filed a grievance. She also stated that her complaint was based solely on her perception of Ms. Preto’s attitude and approach to her situation, although she believed that Ms. Preto would have acted on her behalf had it been necessary.

15 Ms. Preto testified that since 2006, she represented the complainant on a number of issues. She explained that the complainant had been off work due to illness since July 2007. Problems arose with the complainant’s disability benefits, and she retained counsel to deal with them but also asked for assistance from the union.

16 In June 2009, the complainant asked the union for help because the employer wanted her to choose between returning to work, resigning or taking a medical retirement. The employer told the complainant that if she did not respond to the proposal, her employment would be terminated. Ms. Preto explained that the complainant did not wish to choose any of the options proposed to her by the employer at that time. Instead, she wanted to take a leave of absence without pay and asked Ms. Preto to help her negotiate one with the employer.

17 Ms. Preto stated that she spoke at length with the complainant about her options. She gave the complainant information on leave without pay and priorities under the Public Service Employment Act. She also gave the complainant copies of the legislation and the relevant collective agreement so that the complainant could look at the severance provisions. Ms. Preto stated that she emailed everything to the complainant. She also said that after her conversation with the complainant, she spoke to the employer to obtain an extension to the deadline to reply.

18 On June 15, 2009, the complainant advised Ms. Preto that her doctor had not cleared her to return to work. On July 14, 2009, the complainant and Ms. Preto met with the employer. The complainant told the employer that her doctor had not approved her return to work, and she provided a medical certificate in support of that advice. She also told the employer that she had retained counsel and that she was appealing the insurer’s decision to terminate her disability benefits.

19 In January 2010, the complainant advised Ms. Preto and the employer that her doctor had advised her to remain off work for another three months. Ms. Preto testified that the employer contacted her in February 2010 after it had been unable to reach the complainant. The employer wanted to set up another meeting with the complainant and Ms. Preto to discuss questions arising from the most recent medical certificate. Ms. Preto testified that she did not hear from the complainant.

20 In February 2010, the employer sent the complainant another letter, which presented her with employment options. Although Ms. Preto tried to contact the complainant, she did not hear from her until she received a copy of a doctor’s note that the complainant sent to the employer. On March 10, 2010, Ms. Preto received a phone call from the complainant, who told her that she was in litigation against the disability benefit provider and that her counsel in that matter had advised her to ignore the employer’s letter of February 16, 2010. Ms. Preto testified that she advised the complainant against ignoring the letter. She recommended that the complainant seek a postponement of the decision about her employment status until the litigation concluded. Ms. Preto provided draft text for a letter to the employer that the complainant used. On March 17, 2010, Ms. Preto received a copy of the letter that the complainant sent to the employer, with the complainant’s thanks.

21 The employer did not agree to postpone the decision about the complainant’s employment status. On March 25, 2010, Ms. Preto received a copy of the employer’s letter (Exhibit C-1, Tab H) to the complainant and noted that the complainant was asked to respond to the employer by March 31, 2010. On April 16, 2010, Ms. Preto received a call from the employer’s representative, who advised that the employer had not heard from the complainant and had not been able to reach her.

22 Ms. Preto asked the employer to delay any decision while she tried to reach the complainant. She testified that she was not successful and that her last attempt was made on April 19, 2010, when she sent an email (Exhibit C-1, Tab G) to the complainant advising her to reply to the employer immediately. She did not hear from the complainant and did not know at the time whether the employer took steps to end the complainant’s employment.

23 Ms. Preto testified that in her last conversation with the complainant on March 10, 2010, she was frustrated. She said that communication with the complainant was difficult because she would not keep Ms. Preto informed about the progress of her case and would simply stop calling. Ms. Preto said that while she did not think that she raised her voice, her frustration might have been evident, and she certainly gave the complainant a reality check, because it was clear that the employer was becoming impatient.

24 In cross-examination, Ms. Preto did not recall making any negative comments about the complainant’s lawyer or telling the complainant that the disability insurer would not discontinue her benefits while she was on sick leave in the March 10, 2010, conversation. However, she agreed that she and the complainant discussed the implications of the advice given by the complainant’s lawyer to ignore the employer’s letter.

25 Ms. Preto testified that she stopped working on representation files for the union in late May or June 2010, and then she went on sick leave. She prepared a chronology of her work on the complainant’s files at Ms. Harvey’s request in May 2010 (Exhibit C-1, Tab I).

26 Ms. Harvey became the acting chief of regional operations for the union in May 2010. Regional representatives, such as Ms. Preto, reported to the chief of regional operations. Ms. Harvey explained that the position of Chief had been vacant for some time in 2009 and 2010.

27 Ms. Harvey testified that she saw the complainant’s final letter of complaint to Mr. Corbett but not the first one. She said that she could see that the complainant was upset with the regional representative and that she wanted a different representative assigned. That was not an unusual request, and she did not view it as an urgent matter. She consulted the union’s information management system to see if there were active files for the complainant. She stated that although the complainant had mentioned a possible termination of employment in her letters, there was no active file relating to termination, although there were three other active issues.

28 Ms. Harvey wrote to Ms. Preto in May 2010 to determine if she had been contacted about the complainant’s letters. At that time, there was a backlog of correspondence in the office, and there was a lot of paperwork to be dealt with. There was a shortage of staff, and because the regional representatives maintained their own files, it was sometimes difficult to get information. For example, Ms. Preto maintained all her information on her personal laptop. Ms. Harvey said that she finally received a copy of the complainant’s file on July 9, 2010.

29 Ms. Harvey stated that she would have told the complainant that Ms. Preto was providing adequate representational services and that given the union’s general practice, a grievance would be filed on her behalf were she terminated. She explained that, as a general rule, the regional representative would file a grievance on behalf of a member whose employment was terminated and would discuss the case with the member, setting out its strengths and weaknesses. At that point, if the member was unhappy with the regional representative’s recommendations, he or she could ask for a reconsideration of the union’s decision.

30 Ms. Harvey explained that the union had a policy on conflict resolution for internal matters (Exhibit C-1, Tab K). That policy set out a process under which union members could seek a reconsideration of union decisions. The internal reconsideration process usually took a week or two, although the policy set out no timelines, and if there was not enough information in the file, it might take longer. Ms. Harvey noted that grievance timelines would be protected during the process. The decision to refer a grievance to adjudication had to be approved by the union’s national office. Ms. Harvey noted that the complainant did not follow the internal union process.

31 Ms. Harvey stated that in July 2010, Ms. Preto was on leave, so it would have been necessary to assign the complainant’s file to someone else. However, in her review of the file, she saw nothing that suggested that a change of representatives was required. In cross-examination, she explained that nothing in the letters sent by the complainant suggested urgency. The complainant asked what the union would do “should” her employment be terminated. She did not state that her employment had been terminated. Ms. Harvey said that had there been an actual termination of employment, the file would have been treated as urgent. However, she acknowledged that the complainant’s letter should have been responded to sooner. She also said that there was no doubt that the union would have filed a grievance on the complainant’s behalf in the event her employment had been terminated.

III. Summary of the arguments

A. For the complainant

32 The complainant stated that the union failed to represent her during the termination of her employment. She noted the evidence established that the union thought that there was no urgency to respond to the three letters she wrote to the union president asking for assistance. She noted that the union stated that she would have eventually received a response to her letters. She also noted that the union stated that attempts to contact her had been made but had failed because she had no voice mail. However, as her evidence proved, she did have voice mail. The complainant stated that that act alone constituted bad faith.

33 The complainant noted that the union’s internal policy on conflict resolution contained no timelines. She stated that the failure to follow timelines was an issue in the final-level grievance response and in the adjudication decision on her grievance against the termination of employment. She argued that her request for assistance in addressing the employer’s threat to terminate her employment should not have been treated as an internal union matter.

34 The complainant argued that although the union claimed it did not refuse to represent her, no effort was made to communicate that any action was taken on her behalf. In the absence of a response to her correspondence, the complainant alleged that the union failed to represent her while she was in the process of losing her job. She stated that it did not occur to her to act on her own or to phone Ms. Preto for assistance.

35 The complainant stated that she pursued this complaint because she wanted to know why she did not receive the union’s help when she needed it. She said that she wanted an acknowledgment that the union’s lack of response to her meant that she was left without the help that she needed to deal with the termination of her employment.

B. For the union

36  The union reiterated its objection to jurisdiction on the grounds that the complaint is moot. It stated that to determine mootness, it is necessary to examine the character of the complaint. This complaint was filed with the goal of obtaining representation. The corrective action sought by the complainant was representation with respect to her termination of employment. The union did provide representation, so it must be acknowledged that the essential character of the complaint changed and that the reason for the initial complaint has disappeared.

37 The union argued that the leading case on mootness, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, established a two-step analysis. The first question that must be answered is whether there remains a live controversy between the parties. If the question between the parties is largely theoretical or hypothetical, then it is necessary to determine whether the discretion to consider the issue should be exercised.

38 In that context, Borowski set out some of the elements that should be considered and, in particular, noted that the adversarial context of the judicial system could provide a sufficient rationale for the exercise of discretion because one of the tenets of the adversarial system is that issues are fully argued. Another element that could be considered is whether it is worthwhile to devote scarce judicial resources to a claim that is moot. If a decision might have some practical effect on the parties’ rights, even though it might not determine the original claim, there might be some value in the exercise of the discretion to hear the matter. Similarly, an issue of public interest could warrant the exercise of discretion to hear the matter. Finally, the Court also noted that a court must also be sensitive to its adjudicative role and must be aware that issuing decisions in the absence of a live controversy could be perceived as intruding into the role of the legislative branch.

39 The union stated that Borowski was adapted in Brant Haldimand-Norfolk Catholic District School Board, [2001] OLRB Rep. March/April 292, to fit the labour relations context. In Professional Institute of the Public Service of Canada v. Treasury Board, 2009 PSLRB 102, the Board dismissed an objection based on mootness and heard a complaint on its merits, on the grounds that there were public policy issues that justified the exercise of discretion. However, in this complaint, there are no such public policy issues that would justify the exercise of discretion to hear a matter that is moot. The Board must ask what purpose would be served in examining whether the union acted appropriately in the circumstances of this case.

40 The termination of the complainant’s employment is no longer an issue. The union stated that had the complainant worked with her union representative, her situation would be very different. She had a representative who provided advice to her, but she did not like the advice. However, it is notable that in the reasons for the decision on her termination, the adjudicator confirmed the advice given to the complainant by her union representative.

41 The union argued that it did not make sense to hear a complaint about obtaining representation after the union provided the representation sought. It would be difficult to explain what useful purpose would be served by deciding the complaint on its merits. The union noted that in Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 130, a complaint was found moot, and the Board declined to exercise its discretion to hear the matter on the grounds that there were no factual, legal or policy reasons to do so.

42 The union argued that the complainant did not establish any factual, legal or policy reasons that the Board should exercise its discretion to hear this matter, which is clearly moot. Therefore, the complaint should be dismissed on the grounds that it is moot.

43 The union also argued that even if the complaint is decided on its merits, it should be dismissed on the grounds that the complainant did not meet her onus of establishing that the union breached its duty of fair representation. Although the complainant alleged that the union failed to represent her, the evidence established that Ms. Preto would have represented the complainant for the termination of her employment had the complainant asked her, but she did not ask her. The sole basis of the complaint is that the union failed to respond to the letters that she sent to the president, which the complainant alleged constituted bad faith.

44 Decisions such as Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, Ouellet v. Luce St. Georges and Public Service Alliance of Canada, 2009 PSLRB 107, and Manella v. Treasury Board of Canada Secretariat and Public Service Alliance of Canada, 2010 PSLRB 128, establish that the onus rests on the complainant to prove that the union acted in an arbitrary, capricious, discriminatory or wrongful manner in its representation.

45 Citing Judd (Re), (2003) 91 C.L.R.B.R. (2d) 33, the union argued that events cannot be examined in isolation. The union’s conduct as a whole must be considered. In Judd, the Board held that representation conducted in bad faith will involve an improper or deceitful purpose. The union stated that there was no evidence to suggest any intention to deceive the complainant in a way that affected the quality or manner of its representation. In Judd, discriminatory treatment was described as unequal treatment on a prohibited ground. The union stated that there was no evidence that it treated the complainant in a discriminatory fashion. Judd held that arbitrariness encompassed a failure to be aware of relevant information, a failure to make a reasoned decision, or representation that was carried out with blatant or reckless disregard. The union stated that there was no evidence that the union’s conduct was arbitrary, as described in Judd.

46 The union argued that its failure to respond to the complainant’s questions as to whether it would represent her at adjudication would not amount to reckless conduct. Citing McRaeJackson (Re), 2004 CIRB 290, the union stated that delay would not constitute arbitrary behaviour and noted that, in any case, it was entitled to make an honest mistake.

47 The union argued that it cannot be held responsible for failing to file a grievance on the complainant’s behalf when it did not know that her employment had been terminated. Citing Ouellett and Sayeed v. Professional Institute of the Public Service of Canada, 2010 PSLRB 44, the union argued that employees have a responsibility to take the necessary steps to protect their interests.

48 The union also argued that employees have a responsibility to provide it with clear direction and instruction. In this case, the complainant did not provide clear instructions, and the letters that she sent to the president did not clarify matters. However, it is also important to note the context that surrounded these events, as the complainant had made it clear that whatever happened, she did not want to jeopardize her litigation against the disability benefit provider. In those circumstances, it was impossible for the union to know what she wanted, without clear instructions. The union cited Satnam Manhus v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 3789, (2007) 149 C.L.R.B.R. (2d) 253.

49 The union stated that, for all those reasons, the complaint should be dismissed as being without merit. However, if it is upheld, then the only appropriate remedy in all the circumstances of the case would be a declaration. The union also argued that if a declaration is issued, it should take note of the complainant’s shared responsibility in the matter.

IV. Reasons

50 On July 14, 2010, the complainant filed a complaint under paragraph 190(1)(g) of the PSLRA, in which she alleged that the union engaged in arbitrary and bad faith conduct, in breach of section 185. As corrective action, she requested “… respectful and fair representation for termination of employment.”

51 For ease of reference, the acts complained of by the complainant are as follows:

Arbitrary Conduct:

Union failed to respond to my requests for clarification as to what process(es) they would be willing to undertake on my behalf should my employer proceed with their threat to terminate my employment while I am on certified medical leave. The broader issue of harassment in the workplace, which led to my protracted illness, has also not been addressed.

Bad Faith Conduct:

Union representative previously assigned to me told me, among other things, that she did not believe my illness was caused by the treatment I received in the workplace, that my disability lawyer gave me bad advice, and that she did not believe Sun Life would terminate someone’s benefits while they were still sick. I found the union representative’s attitude towards me hostile, judgmental, and dismissive.

52 The evidence in this matter reveals that the complainant had been on sick leave from her position for a number of years preceding the events leading to the complaint. Ms. Preto, the complainant’s assigned union representative, had provided representation on a number of issues since 2006. In February and March 2010, the employer attempted to address the complainant’s employment status by requiring her to make a decision on a number of options or face the termination of her employment.

53 Ms. Preto attempted to assist the complainant, who wanted to postpone making a decision until other issues had been resolved. On March 10, 2010, Ms. Preto and the complainant spoke at length over the phone about the employer’s demand that she choose one of the options provided to her. Although she used the draft letter provided by Ms. Preto as a result of that conversation and thanked Ms. Preto for her assistance, in fact, the complainant was not happy with the advice being given to her, and as a result, she wrote a letter to the union president on March 15, 2010. In the letter, she outlined her concerns about Ms. Preto’s advice and asked to have a different representative assigned to assist her. She also asked that the union provide her with clarification as to what processes it was prepared to undertake on her behalf if the employer terminated her employment. The complainant did not receive a response to her letter and wrote again on April 21 and May 28, 2010, asking for a response.

54 In the interim, the employer rejected the complainant’s request to delay making a decision on the options presented to her. In a letter dated March 23, 2010, which was copied to Ms. Preto, the employer asked the complainant to respond to the options provided to her by March 31, 2010, or face the termination of her employment. Ms. Preto testified that she heard nothing concerning the matter until April 16, 2010, when the employer contacted her to advise that it had not heard from the complainant, despite attempts to reach her. Ms. Preto attempted to reach the complainant by phone and sent her an email on April 19, 2010, advising the complainant to contact either Ms. Preto or the employer. She heard nothing further on the matter, and the complainant did not contact her.

55 The complainant’s employment was terminated on April 20, 2010. The complainant did not file a grievance or take any steps to protect her rights within the grievance time limits. In argument, she explained that it did not occur to her to call the union or to act on her own.

56 Following the filing of this complaint, the union undertook to file a grievance against the termination of the complainant’s employment and to represent her in the grievance. The complaint was held in abeyance at the complainant’s request while the grievance worked its way through the process. The grievance was referred to adjudication and was dismissed on the grounds that it was untimely. The union provided representation throughout the entire process.

57 The union argued that this complaint should be dismissed on the grounds that it is now moot. The complainant had asked that the union provide respectful and fair representation for the termination of her employment. In response, the union filed a grievance against the termination of the complainant’s employment and provided representation up to and including adjudication, satisfying the corrective action demanded in the complaint.

58 I agree with the union that this complaint is moot. The complainant was seeking representation on the termination of her employment, and the union provided that representation. The fact that the grievance was dismissed on the grounds that it was untimely cannot be laid at the union’s door. The union representative assigned to the complainant attempted to reach her in the days preceding the employer’s decision to terminate her employment. Ms. Preto testified that she left messages for the complainant and in support of that testimony provided a copy of an email sent to the complainant on April 19, 2010, which the complainant did not answer. I accept Ms. Preto’s evidence on this matter. The fact that the complainant’s voice mail system might not have recorded the calls does not mean that they were not made, and in any case, the evidence that Ms. Preto attempted to reach the complainant by email was not challenged.

59 The complainant stated at the hearing that her purpose in pursuing this complaint was to receive an acknowledgement from the union that it abandoned her when she most needed its assistance. As the evidence demonstrated, that was not the case. Ms. Preto attempted to assist the complainant. Through her complaint, the complainant attempted to shift responsibility to the union for her failure to act in a timely fashion to the termination of her employment and for her failure to protect her own interests. In my opinion, the complainant was solely responsible for her situation.

60 Given those circumstances, I find that there are no grounds to support an exercise of my discretion to hear a complaint that I have found moot. There is no ongoing issue between the parties that would be resolved by an examination of the merits of the complaint and no issue of public policy that would justify a decision on the merits. The complainant bore the burden of persuading me that I should hear the complaint, even though it is moot. She did not meet that burden.

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

V. Order

62 I order the file closed.

January 9, 2014.

Kate Rogers,
a panel of the Public Service
Labour Relations Board