FPSLREB Decisions

Decided on the basis of written submissions
filed October 20 and November 1 and 10, 2017.

REASONS FOR DECISION

Introduction

1        Chantal Paquette (“the complainant”) filed a complaint against the Public Service Alliance of Canada (PSAC or “the respondent”). The Public Service Labour Relations and Employment Board (“the Board”) received and stamped the complaint on May 12, 2016.

2        On May 25, 2016, the Board found that the complaint did not contain sufficient information to enable the Board to establish its nature, and it asked the complainant to provide additional information, which she did, on June 30, 2016.

3        On July 20, 2016, the respondent raised an objection to the Board’s jurisdiction to hear this complaint. The respondent submitted that it had not been filed within the 90-day time limit set out in s. 190(2) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2).

4        The complainant stated in her complaint that the respondent did not deal with her case between October 2010 and June 2012 and during a hearing before the Board from March 9 to 11, 2015. She made these allegations against the respondent after the Board dismissed her grievance on March 22, 2016.

5        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent and amended the name of the Board, which became the Federal Public Sector Labour Relations and Employment Board. In addition, the Public Service Labour Relations Act was renamed the Federal Public Sector Labour Relations Act (“the Act”).

6        This decision is based on the parties’ written submissions and on the initial complaint and its related response. The parties did not challenge the dates on which the facts occurred, and on file is the series of emails that the complainant exchanged with the bargaining agent after the Board dismissed her grievance in March 2016. Under the circumstances, the parties’ statements and written submissions are sufficient for me to decide the issue.

7        In this case, it must be determined whether the Board can deal with the events that occurred between October 2010 and June 2012, in March 2015, and following its decision to dismiss the complainant’s grievance, to hear her allegation that the respondent acted arbitrarily, discriminatorily, or in bad faith in representing her.

8        For the following reasons, I find that with respect to the events that occurred between October 2010 and June 2012 and in March 2015, the complaint was not filed within the 90-day time limit set out in the Act. I also find that the email dated April 14, 2016, which the respondent sent to the complainant in the 90 days preceding her complaint, was not unfair representation.

Background

9        The complaint was filed on May 12, 2016, under s. 190(1)(g) of the Act, which 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.

10        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 complainant alleged that s. 187 was violated; it provides for 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.

11        In a letter of July 20, 2016, and during the pre-hearing conference, the respondent raised a preliminary objection that the complaint was inadmissible and that it should be summarily dismissed because it was not filed within the time limit set out in s. 190(2) of the Act, which reads as follows:

190(2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

12        During the pre-hearing conference on October 13, 2017, I asked the parties to provide their written submissions, to clarify first the allegations against the employer and second if they occurred within the 90-day deadline. The Board received the parties’ written submissions on October 20 and November 1 and 10, 2017. They attached to their submissions the documentation they had exchanged over the years.

Issue

13        Did the respondent’s alleged actions occur within the time limit in s. 190(2) of the Act, and if so, were they unfair representation?

Summary of the facts

14        The complainant was an employee of the Parole Board of Canada. She was a record suspension officer. She was also a member of the Union of Solicitor General Employees, which is a component of the PSAC.

15        The complainant alleged that she was harassed in the workplace between October 2010 and June 2012.

16        On July 31, 2012, the complainant filed two grievances, with the PSAC’s approval. The first alleged an abuse of authority, while the second alleged a violation of the collective agreement due to harassment. Her employer dismissed them both.

17        On May 17, 2013, the PSAC referred to adjudication before the Board the grievance about the harassment and the collective agreement violation. A PSAC agent represented the complainant in the grievance and at adjudication.

18        The Board rendered its decision on March 22, 2016 (see Paquette v. Treasury Board (Parole Board of Canada), 2016 PSLREB 25). The main facts that arose from the decision were that the complainant had returned to work in 2006 following sick leave, that her work schedule had been reduced, and that her workload had been eased. However, she had still failed to meet her work requirements. The employer then asked her to undergo a medical evaluation and an ergonomic assessment. She challenged that request and claimed in her grievance that the employer had violated the collective agreement, which stipulated that employees could not be harassed for a physical disability.

19        In that decision, the Board found that the employer’s actions had not created a hostile atmosphere that had undermined the complainant’s dignity. It also found that the employer had had reasonable and legitimate grounds to request that the complainant undergo a medical evaluation. In addition, the Board found that the employer’s legitimate objective had been to implement accommodation measures for the complainant. Finally, the Board noted that no evidence suggested that the employer had shown any improper or harmful conduct toward the complainant.

20        On March 25, 2016, the complainant requested information from the PSAC to “appeal” the Board’s decision. Her email to the bargaining agent read as follows: “[Translation] Following the March 22, 2016, decision in my case, I would like information as soon as possible so I can appeal this decision.”

21        On April 14, 2016, a legal advisor from the PSAC’s Collective Bargaining Branch provided the complainant with legal advice about her request. In an email, the legal advisor told her that the respondent did not recommend proceeding with a judicial review application but that she could choose to proceed on her own if she wished to.

22        It appears that the complainant did not file a judicial review application. Instead, she filed a complaint against the PSAC on the grounds that it had acted arbitrarily, discriminatorily, or in bad faith in its representation of her, as provided for in s. 187 of the Act.

Analysis

23        The respondent submitted that the complaint should be dismissed because it was not filed within the time limit provided in s. 190(2) of the Act; it also noted that the Act stipulates that a complaint under s. 190(1) must be made no later than 90 days after the date on which the complainant knew, or ought to have known, of the circumstances giving rise to the complaint.

24        The respondent added that the Board has repeatedly stated that s. 190(2) of the Act is binding. It follows that the Board does not have the discretion to extend the time limit. It added that the Board has jurisdiction only to establish the date on which the 90-day period began, “... or in other words, the date on which the complainant knew, or ought to have known, of the action or circumstances giving rise to her complaint, which is purely a question of fact” (see Mohid v. Brossard, 2012 PSLRB 36 at para. 36).

25        The respondent submitted that the Board received the complaint on May 12, 2016. According to s. 190(2) of the Act, that means that the complaint must deal with an action or circumstances that the complainant knew or ought to have known of in the 90 days prior, in this case, from February 12, 2016. The action or circumstances attributable to the respondent that occurred before that date and that the complainant knew about cannot be subject to this complaint because they are out of time (see Ennis v. Meunier-McKay, 2012 PSLRB 30 at paras. 29 and 30, and Perron v. Customs and Immigration Union, 2013 PSLRB 13 at para. 23).

26        Finally, the respondent argued that the complainant’s allegations against it are about events that occurred between 2010 and 2012 and in March 2015. Therefore, they occurred before February 12, 2016.

27        For her part, the complainant argued that the merits of her complaint and her past grievances were filed with the respondent’s approval. Her opinion is that it did not fully support her in actions against her employer with respect to workplace harassment suffered between October 2010 and June 2012. Her view is also that the respondent breached its duty to help her properly prepare her grievance file for her hearing before the Board, which was held in Ottawa from March 9 to 11, 2015. Thus, she argued that the respondent failed to handle her case properly and that the Board’s dismissal of her grievance is proof of it.

28        She added the following clarifications in her written submissions:

[Translation]

...

2. In that complaint, I, the complainant, suggest that there was a failure in how the respondent handled the situation. I declare that the respondent failed to help me with my case against my employer with respect to the workplace harassment that occurred between October 2010 and June 2012. I also allege that the respondent breached its duty to help me properly prepare my grievance file for the hearing before the Public Service Labour Relations and Employment Board, which was held from March 9 to 11, 2015, in Ottawa.

3. Specifically, I confirm that I communicated with the respondent several times, either by telephone, meetings, or emails between the periods of harassment noted in the last point, that is, between October 2010 and June 2012. On the other hand, the complaint from my union was filed only on July 31, 2012. My illness-related work stoppage ensued due to the despair of no longer being able to go to work due to the fault of my union, so I paid for the services.

4. Although the respondent submits that the complaint that the Public Service Labour Relations and Employment Board received on May 12, 2016, was not submitted within the time limit under subsection 190(2), I declare that I could not have known the actions and obligations relating to the complaint before February 12, 2016, because I was not offered any support and was left alone to deal with the situation despite the requests made to appeal Mr. Bertrand’s decision. It should be noted that everyone ignored me but that I have paid for the union’s services since 1989. I still have all the written evidence, i.e., all the emails in which I asked for help to file an appeal. Therefore, I submit that my complaint was ignored, hence the reason it was not filed in the 90-day time limit.

29        Section 190(2) of the Act states that a complaint made under s. 190(1) must be submitted within 90 days after the date on which the complainant knew or ought to have known of the facts giving rise to the complaint.

30        No provision in the Act allows the Board to extend that 90-day period. Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78 at para. 55, indicates as much as follows, in part:

[55] That wording is clearly mandatory by its use of the words “must be made no later than 90 days ...”. No other provision of the [Act] gives jurisdiction to the Board to extend the time limit prescribed in subsection 190(2)....

31        Therefore, it is first necessary to determine when the complainant knew, or ought to have known, of the circumstances giving rise to her complaint. It must then be determined whether she filed her complaint no later than 90 days after that. These are factual questions.

32        The complainant filed her complaint on May 12, 2016. Therefore, it must have arisen from an action or circumstances that she knew ought to have known of as of February 12, 2016.

33        First, on reviewing the complainant’s allegations, I note that essentially, they deal with facts or failures that occurred well before February 12, 2016. In fact, she alleged that the respondent failed to properly handle her case between October 2010 and June 2012 and that it failed to properly represent her during the adjudication of her grievance in March 2015.

34        Additionally, it appears from the parties’ correspondence that the complainant had already criticized the respondent in February 2012 for failing to adequately support her in her case. She also added in her written submissions that at the March 2015 hearing, she strongly suspected that her grievance would be dismissed at adjudication. Therefore, she was fully aware of the events that gave rise to her complaint when they occurred, which was between 2012 and 2015.

35        If the complainant was satisfied that wrongdoing was committed contrary to s. 187 (acting arbitrarily, discriminatorily, or in bad faith), her complaint should have been filed no later than 90 days from the moment she knew of it.

36        The 90-day period is firm, and the Board cannot extend it. I understand that the complainant required her bargaining agent’s approval under s. 209(2) of the Act to refer her grievance to adjudication before the Board. I also understand that it can be difficult for complainants to complain about their representation when they need their bargaining agent’s support to proceed. But the Act is clear. Only Parliament would have the power to amend it to allow the Board to extend the period at issue.

37        In any event, I find that the complainant’s allegations would have been insufficient to establish that the respondent violated s. 187 of the Act. In her written submissions, the complainant stated that she “[translation] ... suggest[s] that there was a failure in how the respondent handled the situation” between October 2010 and June 2012 and in March 2015. According to her, the PSAC failed to provide her with enough support and assistance in her case against her employer. Apparently, for that reason, the Board dismissed her grievance.

38        Section 187 does not necessarily cover disappointments, disagreements, or unfulfilled expectations. In this case, the complainant suggested that the union breached its duty of fair representation because she was dissatisfied with the representation she received, which did not meet her expectations. However, the purpose of s. 187 is not to serve as a remedy for complainants who invoke a breach of the duty of representation as soon as they are dissatisfied with a decision or action by an employee organization; its purpose is to address serious wrongdoing. However, in her complaint, the complainant does not mention serious wrongdoing. The simple fact that the Board dismisses a grievance does not in itself constitute evidence that a union representative acted arbitrarily, discriminatorily, or in bad faith when representing a public servant.

39        Second, I note that the complainant also appeared to claim that the respondent breached its duty of fair representation given its decision of April 14, 2016, not to file a judicial review application for the Board’s March 22, 2016, decision. Since this complaint was filed on May 12, 2016, the respondent’s decision dated April 14, 2016, constitutes an action made within the 90 days preceding the complaint. Therefore, it is appropriate to determine whether that decision constituted unfair representation.

40        In the April 14, 2016, email, the respondent’s legal advisor told the complainant that the respondent did not recommend proceeding with a judicial review application but that she could choose to proceed on her own if she wished to. The correspondence also showed that the question of whether to file a judicial review application was considered seriously and in good faith. At the same time, a thorough legal analysis was sent to the complainant.

41        I find that the April 14, 2016, correspondence does not support a finding of unfair representation. It has been clearly established that substantial latitude is accorded to bargaining agents with respect to representation, as indicated in Nkwazi v. Professional Institute of the Public Service of Canada,2015 PSLREB 93 at para. 34, as follows:

Since Gagnon[Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 SCR 509 at 527], the PSLREB and other labour boards have rendered many decisions on the duty of fair representation. The threshold for establishing a breach of this duty is high and complaints are rarely substantiated. As stated as follows in Manella v. Treasury Board of Canada Secretariat, 2010 PSLRB 128, at para 38:

[38] The cited cases are consistent with the general theme in the duty-of-fair-representation jurisprudence that bargaining agents should be accorded substantial latitude in their representational decisions. The bar for establishing arbitrary conduct — or discriminatory or bad faith conduct — is purposely set quite high. Examining the facts alleged by the complainant, I do not find the basis for an arguable case that the PSAC’s decision not to support the grievor was made perfunctorily or in a cursory fashion....

42        Therefore, the respondent’s decision not to make a judicial review application did not reflect arbitrary, discriminatory, or bad-faith conduct. In addition, the complainant did not challenge the decision; nor did she ask the respondent to reconsider it.

43        In the circumstances, the complainant’s allegation does not support a finding of unfair representation.

44        Therefore, I find that with respect to the events that occurred between October 2010 and June 2012 and in March 2015, the complaint was not filed within the 90-day time limit provided for by the Act. I also find that the employee organization’s email dated April 14, 2016, to the complainant within the 90-day period preceding her complaint does not support a finding of unfair representation.

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

Order

46        The complaint is dismissed.

March 20, 2018.