FPSLREB Decisions

I. Complaint before the Board

1 On February 27, 2012, Suzhen Chen (“the complainant”) filed a complaint under section 190 of the Public Service Labour Relations Act (“the Act”) against Pierre Ouellet (“the respondent”), a representative of her bargaining agent, the Professional Institute of the Public Service of Canada (“the bargaining agent”), claiming he did not provide her with fair representation.

II. Summary of procedure

2 The parties proceeded by way of written submissions.

3 The complainant made a submission on March 23, 2012, in which she provided her reply to the respondent’s response and in which she articulated the reasons for her request for a hearing.

4 On April 23, 2012, the Public Service Labour Relations Board (“the Board”) requested submissions from the parties on the issue of a hearing. The complainant did not make any further written submissions, but the respondent filed a submission on May 7, 2012.

5 On May 15, 2012, the complainant argued the respondent, in his response of May 7, 2012, had made some false statements, and she submitted this matter should be the subject of a hearing. The respondent took strong issue with these comments by letter dated May 16, 2012.

6 The Board asked the complainant to advise what false statements had been made by the respondent. On May 30, 2012, she wrote to the Board. In this letter, it is noted the complainant referred to only one error, which was who was in attendance at a meeting that occurred on January 11, 2012.

7 The respondent immediately replied and took the position that who was in attendance at this meeting was irrelevant. What was relevant was the meeting took place and was for the purpose of discussing the bargaining agent’s internal appeal process. The complainant took issue with this by letter dated June 6, 2012.

8 On June 26, 2012, the Board wrote to the parties and asked the complainant to provide the following by July 17, 2012:

Further to a review of the submissions already submitted by the parties, the Board Member assigned to this matter has requested further written submissions from both parties on the issue of the complainant’s allegation that the NRC abused the WFA process. The Board Member has requested that the complainant’s submission contain the following:

1-       a brief summary of the facts that she intends to prove with respect to her allegation,

2-       a brief statement of the evidence that she intends to introduce, including brief will-say statements for the witnesses whom she intends to call to testify, and,

3-       a brief statement of how those facts constitute a breach of the union’s duty of fair representation.

9 On July 4, 2012, the complainant requested an extension to file her submission. By letter dated July 12, 2012, I granted the complainant until August 13, 2012, to file her submission.

10 In addition to this request for extension, despite the respondent’s opposition, I granted other extensions to the complainant. Originally, the deadline was set for September 24, 2012, then it was extended to October 24, 2012, and eventually, the complainant asked for and received an extension until August 30, 2013.

11 On August 27, 2013, the complainant filed her written submission. The respondent filed his submission on September 26, 2013, and the final reply submission was filed by the complainant on October 7, 2013.

12 Upon my review of the submissions, I noted the complainant provided a statement from Dr. Joan Boulanger respecting a conversation between him and the respondent, the contents of which appeared relevant to this matter. As a result, I ordered a hearing of this matter in order to allow the complainant to call Dr. Boulanger and for the respondent to call any evidence in response. This hearing was conducted in Ottawa, Ontario, on April 28 and 29, 2014.

III. Evidence of conversations between Dr. Boulanger and the respondent

13 Dr. Boulanger was a colleague of the complainant at the National Research Council of Canada (“the employer”). In June 2011, the employer introduced a workforce adjustment (WFA) program, which affected both Dr. Boulanger and the complainant.

14 As noted, Dr. Boulanger prepared a statement, which he signed on July 22, 2012, concerning two meetings he had with the respondent. This statement was attached to the written brief submitted by the complainant, and it became apparent what Dr. Boulanger stated was said by the respondent in these meetings may be relevant to the complaint before me. As such, I ordered a hearing to inquire into what might or might not have occurred during these meetings.

15 The Board convened on April 28 and 29, 2014. I heard evidence from Dr. Boulanger and the respondent.

16 The statement of Dr. Boulanger was marked as an exhibit. The evidence of Dr. Boulanger was that this document, in addition to a document to which he referred during his testimony and that was not entered as an exhibit, were both completed by himself but after consultation with the complainant.

17 What is certain is Dr. Boulanger met with the respondent on August 4 and 8, 2011, to discuss the WFA. Additionally, although the statement of Dr. Boulanger does not allude to this, there were at least two if not three telephone calls between these two individuals in this time frame.

18 I accept that Dr. Boulanger is a respected scientist with a PhD in fluid mechanics, which he obtained from a university in France in 2002.

19 The essence of the testimony of Dr. Boulanger was the respondent told him he had been advised by the director general of the employer that the goal of the WFA was “to get rid of Dr. Suzhen Chen.”

20 Additionally, Dr. Boulanger concluded that based on his conversations with the respondent, he was “… discovering that the union has chosen to participate to the retaliation against Dr. Chen instead of helping her as a union member, and as in fact, through that, crediting this fake WFA I am, according to this very same union, a victim of which.”

21 Pierre Ouellet is an employment relations officer (ERO) with the bargaining agent, a position he has held since 2007. His experience in similar positions with other unions dates back almost 20 years.

22 The respondent acknowledged he met with Dr. Boulanger on August 4 and 8, 2011, and additionally had two or three telephone conversations with him during this time frame. His recollection of these discussions fundamentally differed from that of Dr. Boulanger. He testified that, first and foremost, the director general of the employer at no time suggested that the WFA was designed to get rid of the complainant.

23 The respondent further testified that he at no time suggested to Dr. Boulanger the WFA was a sham to get rid of the complainant.

24 In support of his testimony, he introduced his notes of his two conversations with Dr. Boulanger, which he testified were prepared within an hour of these meetings.

IV. Relevant facts

25 The complainant worked for the employer. In 2006, she was a victim of harassment.

26 Although an apology was issued by the employer on September 20, 2006, the complainant continued to express dissatisfaction with its response to this harassment. Nonetheless, she agreed to work at another lab, that being the Gas Turbine Lab (GTL).

27 On December 19, 2008, a member of management sent an internal email concerning the complainant to other members of the team. A portion of this email reads as follows:

… Yes this is what we offered! The wording is not true “HR speak”, but it amounts to the same thing.

I went over this with Pierre, her PIPSC rep. He was surprised that she had made this change to the original wording in her letter to you. He did say, however, that she was adamant – she would not accept an assignment (which is what a “temporary deployment” can only mean!) He told me that the longer they discussed this – the less sense she made and the less of an argument she had to not the sign the agreement. His frustration was evident.

It was at this point I explained to him that it was very likely management would simply decide that she carry out the job she was deployed from AL to do, i.e., with Lelyong, for Lelyong’s group and that Benner would simply get his work done elsewhere. I think this is the best route to take, especially since Pierre told me that if management were to entertain the idea that Suzhen would carry out Benner’s work from within Lelyong’s group, it was her intention to “negotiate” the workplan that Mike had prepared. I was firm in telling him that the workplan was not negotiable since Benner had his own deadlines to respect. Pierre said that he understood that from the discussion at the meeting we had, but that – for some reason - Suzhen has other ideas.

28 In November 2009, the complainant filed a complaint with the Canadian Human Rights Commission (CHRC).

29 Negotiations eventually resulted in an agreement being reached. During the course of the negotiations, the respondent sent an email to the employer stating as follows:

Benoit

It was our system (again…..). Things are back to normal now.

I have just sent a copy of the proposed agreement to Suzhen. I have strongly advised her to agree with the terms of the agreement. I asked her to call me tomorrow morning and let me know if the agreement is acceptable to her or not.

30 The WFA in June 2011 resulted in the elimination of several positions, including the complainant’s position.

31 The complainant filed a grievance on July 8, 2011, with her employer, alleging her termination was unjustified and was as a result of her “past complaints and grievances.”

32 On July 28, 2011, a grievance hearing was held, where the complainant was represented by the respondent. The day of the hearing, the respondent sent an email to the employer, which stated as follows:

[Translation]

Just wanted to let you know that I will be doing the bulk of the presentation this afternoon. I will read the notes that Suzhen prepared. If you have questions about what Jamie Eddy is going to say, don’t hesitate to ask Suzhen.

Don’t shoot the messenger ….

33 The employer denied the grievance in August 2011.

34 The respondent wrote to the complainant on September 1, 2011, and agreed to submit the grievance to adjudication. In a letter to the complainant, he indicated in part as follows:

Please sign at the bottom of the second page and return it as soon as possible.

Please note that although I make the recommendation to proceed with your case to the PSLRB with a view to resolve it in mediation, the decision to proceed might be reassessed following the employer’s disclosure of all information related to the litigation of this case.

35 The grievance was referred to adjudication on September 24, 2011.

36 On November 29, 2011, the CHRC wrote a report outlining its investigatory findings and provided it to the complainant.

37 The employer advised the bargaining agent it would not participate in mediation, and Mr. Ouellet withdrew support for the grievance. In so doing, the respondent provided the complainant the following explanation on December 16, 2011:

Further to our meeting of December 9, 2011, this is to inform you of my decision to recommend withdrawing our representation in regards to your grievance filed on 8 July 2011 and referred to adjudication with the Public Service Labour Relations Board on 8 September 2011.

As discussed with you during the aforementioned meeting, and previously addressed to you in writing, I have carefully reviewed your case and have come to the conclusion that NRC’s decision to terminate your employment as part of the June 2011 Work Force Adjustment as NRC-IAR can hardly be interpreted as a retaliatory action against you for your past complaints and grievances. In all, seven (7) indeterminate RO’s and RCO’s lost their position, you obviously being one of them.

On 1 September 2011 I sent you an e-mail advising you that “although I make the recommendation to proceed with your case to the PSLRB with a view to resolve it in mediation, the decision to proceed might be reassessed following the employer’s disclosure of all information related to the litigation of this case”.

Further to my e-mail of September 1, we have received on September 28 a memo from NRC to the PSLRB indicating that NRC was not interested in participating in mediation. This was confirmed by the PSLRB on October 4.

I also recently received the list of all 45 positions you were assessed to while you were on the priority list. Of the 45 you indicated you were not interested in one of them, 8 positions were not filled and you were screened out on 36 others (4 because of language, 13 because of education and 19 because of experience).

As part of our discussions, you have raised some concerns with regard NRC’s implementation of the WFA policy. I do not totally disagree with you. However, as I indicated to you, we have challenged NRC’s WFA decisions in 2007, with limited success. I refer you to “Powell and NRC, 2010 PSLRB 25” in explaining how the arbitrator concluded that, despite issues in the implementation of the WFA policy “(he) was not sure whether the end result would have been different for the grievor had the employer kept him informed at all times of the available positions”. As it is unlikely that you would have been offered a position even if NRC has properly kept you informed at all times of the available positions, and based on the document received indicating that you were assessed against available positions, I can only conclude that the failure of the NRC to keep you informed of the available positions has had no impact on the end result.

I have also carefully reviewed your past grievances and complaints against NRC and JAR managers and taken into consideration your current complaint with the Canadian Human Rights Commission. These were separate and have been addressed using the proper mechanisms. It is my understanding that your complaint with the CHRC is still being investigated. The Institute will continue to represent you if you wish.

At our December 9, 2011 meeting I gave you a copy of the “Policy on Conflict Resolution Procedures for Internal Labour Relations Matter”. I remind you of your right to request a reconsideration of my decision based on this policy. If you wish to do so, please communicate your rationale, along with supporting documents, to Joanne Harvey, Chief Regional Representational Services at jharvey@pipsc.ca. at your request, please submit your documents by Friday, January 27, 2012.

38 After a meeting between the complainant and Joanne Harvey of the bargaining agent on January 11, 2012, the complainant sent an email to Ms. Harvey, indicating she believed Mr. Ouellet had made false and inconsistent statements. As a result, she indicated she no longer trusted him. She specifically asked Ms. Harvey not to share any information with the respondent.

39 The internal appeal process started with the complainant’s letter of January 13, 2012, to the respondent, in which she raised five points. In summary, the complainant submitted the bargaining agent had no basis for what she referred to as its “change in position” respecting her allegation the termination was an act of reprisal; the refusal of the employer to participate in mediation was no reason for the bargaining agent to withdraw its support; a list of available positions did not include two for which she argued she was qualified; the reference to certain jurisprudence, which the complainant claimed was irrelevant, was not a valid reason to withdraw bargaining agent support; and the respondent had agreed to refer the matter to adjudication.

40 The second stage was the complainant’s letter of January 25, 2012, to Ms. Harvey. In this letter, the complainant outlined what she viewed the rationale of her grievance to be, submitted the employer had violated the WFA policy, argued she was terminated while she was injured, argued the termination was retaliatory, suggested the respondent was misguided in not accepting her submission the termination was for retaliatory reasons, argued the employer’s failure to enter into mediation was not grounds to alter Mr. Ouellet’s view to represent her, argued the employer’s determination that she did not have the qualifications for certain jobs was wrong, again took issue with certain jurisprudence, and concluded by submitting Mr. Ouellet should have advised her of his decision before referring the matter to adjudication.

41 The complainant sent another letter on February 2, 2012, to Ms. Harvey, supplementing her earlier letter.

42 On February 9, 2012, Ms. Harvey responded to the complainant as follows:

I am responding to your request for reconsideration of a December 23^rd, 2011 BRO recommendation to withdraw representation at the PSLRB.

In June 2011, as part of a WFA at NRC-JAR, you were advised by the National Research Council that your employment would be terminated effective August 3^rd, 2011. The following grievance was filed on July 8^th, 2011:

I grieve the decision of the National Research Council to terminate my employment as announced by the Institute for Aerospace Research on June 7^th, 2011. I grieve that this decision to terminate my employment is the consequence of retaliations for my past complaints and grievances as well as other labour relations issues.

The Employer rejected your grievance on August 15^th, 2011. In order to protect the time limits, the Union submitted the grievance to adjudication on September 2^nd, 2011. You were advised by the BRO that the sole purpose of filing for adjudication was for mediation. The Employer on September 28^th, 2011 refused to participate in mediation; as a result the BRO recommends withdrawing our representation in this grievance and, referred to adjudication with the PSLRB on September 8^th, 2011 [sic].

In your January 25^th, 2012 request for reconsideration, your concerns are listed as follows; work direction, job description and, marketing period. Further, you argue that the BRO did support your grievance as he signed it, represented you at the grievance hearing, and submitted the grievance to the PSLRB. Finally, you submit that the mere fact that the Employer refused to participate in mediation should not be a hindrance to the Union representing you at the PSLRB.

I find no substantive reason to pursue this matter to adjudication. There is no substantive evidence that would support your claim that the WFA exercise was a “sham” or a form of retaliation for having filed grievances and complaints against the Employer. As a result, I concur with the BRO recommendation dated December 23^rd, 2011.

Should you disagree with my recommendation, you have the right under the PIPSC policy on Conflict Resolution Procedures for Internal Labour Relations Matters, May 13, 1999, to submit to our General Counsel, a request for a review of my recommendation. Should you decide to do so, General Counsel, Isabelle Roy, at iroy@pipsc.ca must receive your appeal no later than February 16, 2012. Should we fail to receive it within this time, we will assume the matter is closed and advise the PSLRB.

43 The complainant launched the final stage of the internal appeal process when she sent a letter on February 15, 2012, to Isabelle Roy, General Counsel for the bargaining agent. For the most part, this letter was a reiteration of what she had stated in her earlier communication.

44 After receiving a copy of the CHRC’s report from the complainant, Ms. Harvey wrote to her on February 16, 2012, concerning the report. This letter specifically addressed the complainant’s concerns about a CHRC investigator’s report that amongst other things indicated that the respondent attended a meeting and stated certain things.

45 The complainant argued this false statement was as a result of Mr. Ouellet and it ultimately impacted on the conclusion reached by the CHRC. Ms. Harvey disputed the complainant’s suggestions, analyzed the CHRC’s findings, noted the report had been withheld from the respondent by the complainant for a year and confirmed to the complainant the bargaining agent would no longer represent her with respect to this complaint.

46 In this letter, Ms. Harvey pointed out that she had been instructed by the complainant not to provide the respondent with any further communication, as the complainant had lost confidence in him. As a result, Mr. Ouellet was not aware of the statements of the CHRC investigator and could not correct them.

47 The letters of appeal filed by the complainant with the bargaining agent all argued there was no valid reason for the bargaining agent to have withdrawn support for the grievance, the employer had violated the WFA policy and the employer had retaliated against the complainant for her earlier filing of a harassment complaint.

48 Before receiving Ms. Roy’s final decision, the complainant filed the complaint that is the subject matter of this decision on February 27, 2012.

49 It is useful to set out the complaint in its entirety. It states as follows:

1. The National Research Council of Canada (NRC) terminated my employment on August 3, 2011. Many of their practice did not follow the Work Force Adjustment (WFA) policy. My union representative, Mr. Ouellet, filed a grievance against my managers on my behalf on July 8, 2011, and later referred it to the PSLRB (CASE 566-09-5859) on September 2, 2011 after NRC denied my grievance.

However, on December 23, 2011, without any valid reason, Mr. Ouellet decided to withdraw my case. In his letter, he made it clear that he was willing to continue representing me for my case with the Canadian Human Rights Commission (CHRC). However, at that time Mr. Ouellet already provided many false and inconsistent comments to the CHRC in favor of my employer.

I believe that Mr. Ouellet did not represent me fairly during this whole process and he did it arbitrarily and in bad faith.

2. My employer concluded a harassment case in 2006. The harassment was founded. Instead of moving the harasser, I as a victim of the case, was deployed to Gas Turbine Lab in 2007. Since then, Mr. Ouellet has been my union representative. Unfortunately, I was again harassed by the managers at this new lab.

On November 27, 2009, I had to file a complaint against my new managers with the CHRC. Mr. Ouellet agreed to represent me for this complaint. He also reviewed and approved my complaint submissions.

However, during the investigation process in fall 2011, Mr. Ouellet irresponsibly provided some false information to the investigator. Some of his comments were also inconsistent with the information and advices he provided to me. Some of his comments were arbitrary and deliberately in favor of the respondents without any basis.

Furthermore, after providing all these kinds of comments, he still informed me that he was willing to continue representing me for my CHRC case on December 23, 2011.

I believe that Mr. Ouellet did not represent me fairly for my CHRC case and he did it in bad faith to set me up for failure for my complaint.

[Sic throughout]

[Emphasis in the original]

50 Ms. Roy responded to the complainant’s appeal on March 9, 2012. In this letter, Ms. Roy outlined the reasons for the respondent and the bargaining agent not supporting the complainant in her grievance and reviewed why the bargaining agent would not support the complainant in her complaint before the CHRC.

51 The bargaining agent then responded to the complainant on March 14, 2012. Counsel for the respondent outlined the basis of the grievance and the complaint before the CHRC and took issue with the complaint. In so doing, counsel outlined the internal appeal process provided by the bargaining agent to the complainant.

V. Summary of the arguments

A. For the complainant

52 The complainant relied heavily on the email sent by the respondent on the day of the grievance hearing, July 28, 2011. She submitted this email delivered a message to the employer that the bargaining agent was not supportive of her grievance.

53 Specifically, the complainant argued the respondent colluded with her employer and adversely manipulated the grievance. As such, the complainant argued Mr. Ouellet “… betrayed [her] trust in him as [her] union representative,” acted in “bad faith” and “… breached the Union’s duty to represent the membership.”

54 The second tenet of the complainant’s submission was Mr. Ouellet “… deliberately acted as NRC’s agent by manipulating the process in their favour and stopped [her] from revealing the scandal to the board.” In support of this contention, the complainant relied upon the written statement of Dr. Joan Boulanger, dated July 22, 2012, forwarded as an attachment to her submission.

55 Next, the complainant argued the respondent “… deliberately put [her] in a very bad negotiating position during the mediation process and thus relieved NRC from discussing terms.” She also argued the respondent was unprofessional and “… removed any opportunities for [her] and NRC to work together to find a reasonable solution.” In support of this contention, the complainant referred to the email sent between members of management and dated December 19, 2008 and referred to in paragraph 34 of this decision.

56 The complainant also relied on an email sent by the respondent to the employer on February 18, 2010. The complainant argued Mr. Ouellet’s words establish he was not acting in her best interests.

57 The complainant’s fourth and final allegation was the respondent unfairly represented her before the CHRC and “… deliberately provided false information to the investigator that supported NRC’s case.” She also alleged he “… colluded with NRC to set [her] up for failure with [her] CHRC case and [her] grievance against this bogus WFA process.”

58 In support of this contention, the complainant referred me to a portion of the CHRC’s investigatory report, in which the author referred to the respondent as being at a meeting on January 13, 2009, when he had not been there, and stating that it occurred at another time.

59 In summary, the complainant argued the respondent did the following:

1. acted as the employer’s agent, not hers, during the process of her grievance against the WFA;
2. disclosed information that he should not have during her mediation process with the employer in 2008;
3. deliberately provided false information to the investigator for her human rights case;
4. used his position as a bargaining agent representative to stop her from unveiling the employer’s abuse of the WFA;
5. was aware of the bogus WFA prepared by the employer’s Institute for Aerospace Research management and helped them conceal it; and
6. conspired with the employer by manipulating the process improperly when dealing with her grievances and complaints.

B. For the respondent

60 The respondent argued the complainant chose to work at the GTL and was aware if she had not, she would have been terminated.

61 Insofar as the complaint with the CHRC is concerned, the respondent acknowledged the complainant experienced issues with her supervisor but noted after an investigation was conducted, it was determined there was no foundation to her complaint.

62 The complainant was one of 14 employees affected by the WFA. There is no evidentiary basis to the unfounded allegation that Mr. Ouellet conspired with the employer.

63 Insofar as the allegations surrounding the WFA are concerned, the respondent argued the email from Mr. Ouellet on July 28, 2011, did not imply anything to the employer but rather simply advised how the grievance process was to proceed.

64 Similarly, the respondent argued the WFA was not an act of retaliation against the complainant; nor did they act as an agent of the employer. Rather, the respondent argued the evidence is that at all times he acted in her best interests.

65 Insofar as the statement of the complainant’s colleague is concerned, the respondent denied what was alleged and noted the fact this individual is a colleague who offered personal observations.

66 With respect to the communication between Mr. Ouellet and the employer, it is submitted this was evidence of the respondent trying to achieve the best result possible for the complainant. Furthermore, this was known by the complainant, who had been advised by Mr. Ouellet throughout the process. As a result of their representation of the complainant, the respondent alleged they obtained a favourable offer, which was recommended to the complainant.

67 The complainant availed herself of the internal appeal process respecting the respondent’s decision not to pursue her grievance. The reasons for the denial of her appeal throughout were complete, and the respondents suggested there is no evidence of a violation of the duty of fair representation.

68 The respondent argued there is no requirement to represent a member before the CHRC, so the only matter before me is whether the decision to withdraw support of the complainant’s grievance was a breach of the duty of fair representation.

69 The respondent pointed to a decision of the Supreme Court of Canada, which they argued stands for the proposition a union need only demonstrate that it has examined the circumstances of the grievance, considered its merits and made a reasoned decision of whether to pursue the case (Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509).

VI. Analysis

70 This decision deals exclusively with the respondent’s alleged failure to abide by the duty of fair representation. It does not involve actions of the respondents before the time limits prescribed in the Act began to run.

71 Section 190 of the Act provides for a complaint process before the Board, as follows:

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.

(2) … a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

72 Section 185 of the Act confirms a violation by the bargaining agent of section 187 is a breach of its duty of fair representation.

73 Section 187 of the Act states the following:

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.

74 It is uncontested the onus rests with the complainant to establish on a balance of probabilities the bargaining agent failed to meet its duty of fair representation (Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107).

75 In a more recent decision, the Board has concluded that to establish a breach of section 187 of the Act, the complainant must prove the alleged act or inaction “… was arbitrary, discriminatory or in bad faith” (Jackson v. Customs and Immigration Union and Public Service Alliance of Canada, 2013 PSLRB 31).

76 Finally, the scope of the duty of fair representation extends only to matters arising under the Act or the relevant collective agreement (Brown v. Union of Solicitor General Employees and Edmunds, 2013 PSLRB 48, and Elliot v. Canadian Merchant Service Guild et al., 2008 PSLRB 3).

77 Having considered the submissions in their entirety, I am of the view the complainant did not establish Mr. Ouellet failed to meet his duty of fair representation.

78 Let me explain further.

79 The complainant’s first argument was the email sent by the respondent to the employer on July 28, 2011, the date of the grievance hearing, in her words, “delivered a message.” I cannot agree with this submission. On the face of it, the respondent was simply outlining what he expected the process to be. This included an opportunity for the employer to ask questions directly of the complainant.

80 Despite the complainant’s position that the concluding words, “Don’t shoot the messenger,” delivered a message to the employer, that being the bargaining agent was not supportive of her grievance, I am not of the same view. The author no doubt regrets his choice of words, but on their face, they prove nothing. At best, they can be seen to mean the respondent might have been suggesting a process that the employer was not pleased with. Nothing else can be read into these words.

81 The second tenet of the complainant’s argument is that the respondent manipulated the WFA with the employer to presumably remove her from the workforce. In support of this contention, the complainant relied on a statement from Dr. Boulanger dated July 22, 2012.

82 In this regard, I heard oral testimony with respect to this statement and concluded that it was not reasonable, based on a preponderance of evidence and a balance of probabilities. I will return to this issue later in this decision.

83 The complainant’s third argument was that the respondent put her in a very bad negotiating position. When one delves into this argument, it deals with a process that predates the complaint beyond the allowable 90-day time limit. The mediation process being referred to was with respect to her complaint with the CHRC and occurred long before this complaint was filed. Therefore, it does not fall within the time limits of the Act.

84 The complainant relied upon the email of December 19, 2008. It is noted this email predated the complaint and therefore is not within the time limits prescribed by the Act. Despite that fact, it is useful to analyze the contents. Much of the email was redacted but it is an internal management email in which there is reference to a conversation with the respondent. It was the view point of the author of this email that the respondent was frustrated with the “adamant” position adopted by the complainant with respect to her assignment. In my view, this email does not support the contention of the complainant that the respondent was unprofessional and acted against her interests. First, the email reveals only the impressions of a third person, not necessarily the truth of matters. Even if the respondent was frustrated with the complainant’s position, the email does not in any way indicate that his frustration caused him to act against her interests.

85 The complainant argued the email from the respondent of February 18, 2010, established he was not acting in her best interests. This email deals with a mediation process with the CHRC, which predated both the WFA and the grievance and is not a matter before me, as it is outside the time limits set forth in the Act.

86 Regardless, even if one reads the email, it is simply a communication to the CHRC, advising it that the respondent has recommended the settlement to the complainant. This is not an indication the respondent acted contrary to her interests; rather, it established he performed his duty. This is what he stated:

I have just sent a copy of the proposed agreement to Suzhen. I have strongly advised her to agree with the terms of the agreement. I asked her to call me tomorrow morning and let me know if the agreement is acceptable to her or ….

87 The final tenet of the complainant’s submission was the respondent misled the CHRC. She specifically pointed to a portion of the investigator’s report which stated the respondent was at a certain meeting, but he was not there. Although this again is a matter outside my jurisdiction for timeliness, I cannot accept that a report of a third party could be interpreted to mean someone was not being truthful.

88 The complainant also did not adduce any evidence to support her contention the bargaining agent and the respondent were in collusion with the employer. This type of allegation, unsupported by any evidence whatsoever, is unfortunate.

89 Viewed in its entirety, I am of the opinion the respondent, on behalf of the bargaining agent, did everything he ought to have done. The complainant might have been disappointed by or even have disagreed with the bargaining agent’s decision not to continue to represent her, but it is my view she was advised of this possibility on September 1, 2011. He also sent her an email in which he clearly stated the decision to pursue the grievance would be reassessed after disclosure was received from the employer. And it was in December 2011 the respondent advised the complainant that the bargaining agent would no longer represent her. This is the date when the time limits for her complaint commence.

90 I am left with the difficult task of considering the evidence of two individuals who both appear credible.

91 In considering this issue, I am guided by the following from Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) (quoted with approval by the Ontario Court of Appeal in Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., [1971] 2 O.R. 637):

…

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

…

92 Canadian courts and administrative tribunals have consistently adopted the Faryna test,

93 Although I accept that Dr. Boulanger believes his story, I am of the view he is quite honestly mistaken. When I consider his evidence based on a balance of probabilities, I conclude that a practical and informed person would not consider it reasonable.

94 As noted by counsel for the respondent, in both his experience and that of the respondent, they have never heard of a situation where a senior representative of an employer admitted to the bargaining agent that a plan was designed to get rid of an employee. This would be fodder for the bargaining agent that most representatives would only dream of happening.

95 Furthermore, if I were to believe the testimony of Dr. Boulanger, he failed to take action against his bargaining agent despite being apparently told that his termination of employment as a result of the WFA was allegedly a shield for the employer to defend itself against a complaint from the complainant.

96 In conclusion, I determine that during the conversation between Dr. Boulanger and the respondent, the respondent did not make the comments alleged by Dr. Boulanger. It is my conclusion that, as referenced in the notes of the respondent, the discussions focused on the rights of Dr. Boulanger, during which the respondent provided advice.

97 He further fully explained the rationale for his decision in his communication of December 23, 2011. The complainant obviously took issue with this decision, and the bargaining agent offered her an internal appeal process, which on its face was transparent. The bargaining agent’s responses to the complainant of February 9 and March 9, 2012, articulated a reasoned rationale for no longer supporting her grievance.

98 The acts of the respondent throughout in no way can be categorized as arbitrary, discriminatory or made in bad faith.

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

VII. Order

100 The complaint is dismissed.

May 23, 2014.

George Filliter,
a panel of the Public Service
Labour Relations Board