FPSLREB Decisions

REASONS FOR DECISION

Complaint before the Board

1         On November 23, 2015, Todd Rudavsky (“the complainant”) made a complaint against the Government Services Union (“the respondent”). His somewhat long and rambling allegations seem to have arisen from concerns that he claims he presented to his local union leadership and the manner in which they were dismissed.

2        The complaint was filed under s. 190 of the Public Services Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). That provision reads 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.

3        Section 185 of the Act defines an unfair labour practice as anything prohibited by ss. 186(1) or (2), 187, 188, or 189(1). The provisions of the Act referenced under s. 185 that applies to this complaint are paragraphs 188(e)(i) and (iii), which read as follows:

188 (e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

(i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

(iii) exercised any right under this Part or Part 2.

The hearing

4        In a letter dated August 29, 2016, the parties were advised that a hearing was tentatively set for January 4 to 6, 2017. Those dates were unacceptable to both parties, so by a letter dated November 17, 2016, the dates of March 8 to 10, 2017 were proposed for the hearing. The complainant replied that he was not available, and he offered no explanation. The respondent opposed a second postponement of the hearing and pointed out that the complainant had offered no rationale for his postponement request.

5        Subsequently, the Public Service Labour Relations and Employment Board (“the Board”) wrote to both parties by registered mail, stating that the hearing would proceed on March 8, 2017, and that this date was “final”. The complainant acknowledged receiving that letter. The hearing date was confirmed again later in correspondence that the complainant and the Board’s registry exchanged. The Board attempted to convene a pre-hearing teleconference with the parties in February to ensure the proper disclosure of witnesses and evidence. In an email dated February 14, 2017, the complainant advised that he was not available on any of the four dates proposed for the pre-hearing conference. He did not offer any alternate dates for when he was available.

6        The Board’s registry then advised the parties that in lieu of a pre-hearing teleconference, they would both be required to exchange written information and disclose intentions for witnesses and evidence. The complainant did not respond other than to inform the registry that he intended to challenge the Board’s decision to deny his second postponement request.

7        A formal notice of the hearing venue was sent to the parties by registered mail on February 7, 2017. The complainant confirmed receiving it by his signature. This notice of hearing venue advised the parties that if they failed to attend the hearing, the Board could dispose of the matter based upon evidence and representations submitted at the hearing, without further notice to them.

8        On the first scheduled morning of the hearing, the Board’s registry notified me that it had received an email from the complainant at 9:23 a.m. He stated that he filed a complaint with the Canadian Human Rights Commission. He had made no mention of the hearing scheduled for that morning.

9        At the scheduled start time of 9:30 a.m. on March 8, 2017, at the location indicated in the notice of hearing, only the respondent was present. Neither the complainant nor his representative was present. The Board’s registry had not received any communication from the complainant about his attendance.

10        I delayed starting the hearing. The Board’s registry immediately sought to contact the complainant. After 60 minutes had elapsed from when the registry emailed him, and after 90 minutes had passed since the scheduled start time, I chose to commence the hearing.

11        With neither a complainant nor a representative to submit evidence in support of his allegations, the respondent made a motion to dismiss the complaint, given the absence of any evidence supporting the complaint. Counsel for the respondent cited the effort made to contact and communicate with the complainant.

Reasons

12        The complainant was notified of the hearing dates and times, and given that he had already been granted a postponement, he was advised that the dates were final. He declined to participate in a pre-hearing teleconference. He advised the Board that he would not attend his hearing and requested a postponement, with no justification. He did not send a representative on his behalf. In fact, rather than attending his hearing, the complainant chose instead to inform the Board that he had made a complaint against it with the Canadian Human Rights Commission just seven minutes before his hearing was scheduled to start.

13        The respondent’s representative and witness had prepared and assembled at the hearing venue, at some cost to the respondent, and were ready to proceed.

14        The Board expended significant public funds to prepare, attend, and conduct the hearing. Setting aside the dates for this hearing caused other pending Board cases to be delayed.

15        As I noted in Marshall v. Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN,2016 PSLREB 81, the burden of proof in a complaint under s. 190 of the Act rests with the complainant to present evidence establishing that, on a balance of probabilities, the respondent failed to meet its duty of fair representation (see also Navikevicius v. Public Service Alliance of Canada, 2016 PSLREB 12, and Ouellet v. Luce St-Georges, 2009 PSLRB 107).

16        Given that the complainant failed to present any evidence outlining the details of his complaint to establish how the respondent violated subparagraph 188 (e)(i) or (iii)of the Act, I can conclude only that he does not intend to pursue his complaint and that he has abandoned it. Accordingly, and consistent with my decision in Marshall, I grant the respondent’s motion.

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

Order

18        The complaint is dismissed.

April 18, 2017.