FPSLREB Decisions

Heard at Toronto, Ontario,
October 16 and 17, 2018.

REASONS FOR DECISION

I. Complaint before the Board

1        The complainant, Antonio D’Alessandro, alleged that the respondent, the Public Service Alliance of Canada, committed an unfair labour practice and failed in its duty of fair representation when it ignored his situation and failed to represent him as an affected employee under a Workforce Adjustment Policy and subsequently when he was laid off from his position with the Department of Justice as a result of a workforce adjustment. He also alleged that the respondent failed to meet its duty to represent him in his attempts to secure workers’ compensation benefits and long-term disability benefits for a stress-related illness, which he claimed resulted from the layoff process. All this violated ss. 185, 187, 188(1)(b), and 190(1)(g) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”).

2         The complaint was filed with the Public Service Labour Relations and Employment Board on July 6, 2016.

3         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, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and  the Federal Public Sector Labour Relations Act (the FPSLRA”).

4         The respondent’s representative objected to the jurisdiction of the Board to hear this matter on the basis that pursuant to Elliott v. Canadian Merchant Service Guild, 2008 PSLRB 3, the Board has no authority to deal with any matter related to workers’ compensation benefits. She chose not to argue this objection further or in any more detail in her closing argument. Consequently, based on the evidence before me, her objection is dismissed. Unlike the situation in Elliot, in which the complaint was directly related to the respondent’s representation in a matter before the workers’ compensation board, in this case, the complainant’s complaint is not related to such a process but instead to the respondent’s failure to represent him in the grievance process, which is clearly a collective agreement matter for which I have jurisdiction to consider.

II. Summary of the evidence

5        The complainant was hired in 1986 as a mail clerk (classified CR-02) and by 2014 was a compensation advisor (classified AS-02) with the Department of Justice. On October 2, 2014, he was advised that he had been identified as an affected person under the Workforce Adjustment Policy. His position had been identified for elimination, and he was to be given priority on upcoming vacant positions for the next year. If he were unsuccessful in obtaining another position, he would be laid off and would be maintained on a priority list for future employment for another year.

6         The complainant began applying for jobs but was unsuccessful. He believed that he was unsuccessful internally because he had a history of problems with his employer, the Department of Justice. According to his evidence, Janet Hauck, his local Union of Solicitor General Employees (USGE) representative, was fully aware of this as he had copied her on emails in which he had questioned why he had not be successful in securing a position (Exhibit 4, at 2.1). He testified that he had filed three harassment complaints and that he had asked Ms. Hauck to attend interviews with him but that she had refused to attend or to assist him with his workplace problems.

7         He also applied to external competitions. One was with Service Canada for a benefits officer position, which was essentially the same as his job with the Department of Justice, according to his evidence. He was unsuccessful, and when Service Canada began hiring from outside the public service, the complainant sought the respondent’s assistance. On December 3, 2015, he directly contacted Robyn Benson, the respondent’s national president (Exhibit 4, at 8.1), and asked for assistance to avoid being laid off. She did not respond, so he phoned her office and was directed to Stan Stapleton, the USGE’s national president.

8         The complainant sought Mr. Stapleton’s assistance (Exhibit 4, at 11.1). He had expected Mr. Stapleton to focus on the matter he had identified, which was challenging Service Canada’s action of appointing external candidates to positions. Instead, in his reply, Mr. Stapleton addressed things unrelated to the complainant’s concerns (Exhibit 4, at 12.1). They exchanged further emails on the competition in question, but nothing happened.

9         During a phone conversation, Mr. Stapleton referred the complainant to Frank Janz, the USGE’s regional vice president for Manitoba, who was responsible for staffing complaints and investigations and who could have helped the complainant with a staffing recourse, according to Mr. Stapleton. Mr. Stapleton also told the complainant that he would issue a statement to the employer about his case but later denied saying that when the complainant asked for a copy of the statement (Exhibit 4, at 18).

10        On January 7, 2016, the complainant contacted Mr. Janz as directed by Mr. Stapleton. The complainant and his wife met with Mr. Janz at the Royal York Hotel in Toronto, Ontario. They discussed what could be done to help the complainant keep his job. Mr. Janz promised him that he would do what he could, which to the complainant meant that Mr. Janz would now work on his file and his staffing complaint. The complainant provided Mr. Janz with his workforce adjustment documents, as requested. When he heard nothing more from Mr. Janz, the complainant assumed that Mr. Janz had everything he needed, that he understood the situation, and that everything was fine and was being taken care of.

11        The complainant also told Mr. Janz about his conflict with the Department of Justice’s human resource director. Mr. Janz asked for emails on that conflict, which the complainant sent to him (Exhibit 4, at 27.1). He also asked Mr. Janz for advice as to whether he should respond to some of the emails and when the respondent would set up a union-management meeting to discuss his case.

12        The complainant was in the workplace between October 2, 2014, and July 30, 2015, when he went on leave due to illness resulting from the stress of his workplace situation. He remained off work until his layoff on March 29, 2016. Since he was no longer in the workplace, he had removed himself from the priority placement list. Mr. Janz directed him to put himself back on the list, since otherwise, the respondent could do nothing to help him. He testified that he did as Mr. Janz directed, even though he did not agree with it because at that time, he was not fit for work. According to him, Ms. Hauck, who was also a member of the respondent’s local executive, was fully aware that he had asked the Public Service Commission and the Department of Justice to put any job referrals on hold while he was off sick, as he had copied her on the emails (Exhibit 4, at 1.1, 1.2, 2.1, and 4.1). She never indicated to him that he should not have done so.

13        The respondent’s representatives did not respond to the complainant’s inquiries. He asked Mr. Janz for advice. He did not respond, so the complainant contacted him by phone and was assured that he would receive an update the next day. When he did not receive one, the complainant sent a follow-up email to both of Mr. Janz’s email addresses (Exhibit 4, at 27.3).

14        The complainant received a layoff letter from the employer indicating that he would be laid off on March 27, 2017 (Exhibit 4, at 49.3). Since this was a year past the date on which he was originally to be laid off, he assumed that the respondent had been working on his behalf in the background and that it and the employer had come to a resolution that had not been communicated to him. Then, on April 20, 2016, he received another layoff notice from the employer, indicating that an error had been made on the original and that the actual date of layoff was March 27, 2016, as had been indicated (Exhibit 4, at 50.2).

15        After he received the second layoff notice, the complainant contacted Mr. Janz for direction on how to handle his medical claim. He also set out his expectations and asked what the respondent was doing with his file. On March 30, Mr. Janz indicated to the complainant that he would get back to him later, as he was in a meeting until 2:00 p.m. that day. On March 31, the complainant again followed up with Mr. Janz, asking about the status of his file and the action that the respondent was taking on his behalf (Exhibit 4, at 44.4 and 44.5).

16        On April 2, 2016, the complainant again contacted Mr. Janz, asking for an update (Exhibit 4, at 45). Despite the ongoing correspondence that the complainant had been sending to Mr. Janz, Ms. Hauck, Mr. Stapleton, and Ms. Benson, Mr. Janz’s only response was to ask about any complaints the complainant had against the employer (Exhibit 4, at 45). Based on correspondence he had received from Ms. Benson on March 3 and again on April 13, 2016 (Exhibit 4, at 37.4 and 47.2), the complainant hoped that Mr. Stapleton was handling his layoff grievance and that his rights were being protected. He assumed that the layoff date of March 27, 2017, was proof of this.

17        When the complainant received his updated layoff letter with the corrected date, he phoned Mr. Janz, who told him that nothing could be done to help him and that he should contact Mr. Stapleton, which he did (Exhibit 4, at 52.1). The complainant emailed Mr. Stapleton after a phone conversation with Mr. Janz. In his email, the complainant clearly stated his desire to take this matter “to court” (Exhibit 4, at 52.1).

18        This was the first time that Mr. Stapleton showed any interest in the complainant’s case, according to the complainant’s testimony, which the respondent did not challenge. At this point, Mr. Stapleton asked if the complainant had filed a grievance (Exhibit 4, at 52.2). He replied that same day, clearly indicating that he wanted to file a grievance but that he needed help with it. He asked specifically for Mr. Stapleton’s assistance with the filing (Exhibit 4, at 52.3). Despite the time-sensitive nature of the grievance, Mr. Stapleton never responded to the complainant’s request.

19        Despite not receiving a response from Mr. Stapleton, the complainant filled out a grievance form, sent it to him on April 25, 2016 (Exhibit 5, at 55.1), and asked him to review and amend it, if necessary. After that, the complainant would sign it. Rather than helping the complainant, Mr. Stapleton referred him to Ms. Hauck.

20        On April 28, 2016, Ms. Hauck emailed the complainant, stating that she and Mr. Stapleton were planning to discuss his case that day and that she would get back to him on that day or the next (Exhibit 4, at 56.2). She did not get back to him until May 13, 2016, when she advised him that since he was no longer an employee, he did not have the right to grieve his layoff (Exhibit 4, at 56.2).

21        As it was clear that the respondent would not represent him, the complainant once again emailed Ms. Benson, on June 6, 2016, seeking representation and noting that the matter was time sensitive (Exhibit 4, at 64.2). He received no reply from her but did receive one from Ms. Hauck (Exhibit 4, at 65.1), stating that the respondent was not in a position to represent him in a harassment complaint. The complainant had no idea why Ms. Hauck referred to harassment when he was seeking assistance with filing a grievance related to his layoff according to his testimony.

22        Only after the complainant filed his complaint with the Board under s. 190 of the Act did the respondent decide to help him file a grievance about his layoff, among other things. In November 2016, the respondent helped him file three grievances, all of which the employer denied on the basis of timeliness (Exhibit 4, at 100.3 to 100.11). They were not referred to adjudication and are now finished, according to the complainant.

23        The complainant testified that he had intended to work until he was 70 years old, which would therefore have entitled him to an additional 12 years of salary. He seeks damages for the respondent’s role in the layoff process. While it was not responsible for his layoff, it did nothing to help him fight it. According to him, the respondent clearly failed to communicate with him in a meaningful and timely way, which resulted in the time limits expiring for filing a grievance related to his layoff. He estimated that his losses are in the range of $1.48 million. The employer did offer a settlement of $30 000 during the grievance process, which the complainant rejected; he was not interested in anything other than getting his job back.

24        Intertwined with the evidence related to the complainant’s matter of primary concern was evidence of how he had requested assistance from the respondent for his long-term disability claim, due to his stress-related illness that arose from the layoff, and for the possibility of filing a workers’ compensation claim for what he felt was a workplace incident. This information was collateral to the true nature of the complaint before the Board, which is that the respondent did not respond in a timely fashion and file a grievance against his layoff and that it did not assist him in the selection of employees for retention or lay off process.

25        The respondent’s representative chose not to cross-examine the complainant. Therefore, his evidence remains unchallenged. Furthermore, she chose to call no evidence citing a lack of a prima facie case to be met. In the absence of any evidence to contradict the complainant or to support the respondent, the Board is left to make its decision based on the evidence it has heard, the written exhibits, and the file before it along with its observations at the hearing, including the participants’ behaviour.

26        The complainant was obviously very distressed by the entire process and showed signs of suffering from physical and mental distress throughout the two hearing days, particularly during his testimony. On the other hand, the respondent’s representative failed to participate in any meaningful way throughout the hearing process as was evidenced by the lack of note-taking and the posture she assumed, with her arms crossed and slouched in her chair. When she was asked if she intended to participate in the hearing, she assured the Board that she would. However, there was no evidence that she did, and no evidence was provided of the respondent’s activity or good-faith dealings during the relevant time vis-à-vis the complainant, to rebut his evidence.

27        The demeanour and behaviour of the respondent’s representative were of particular concern to the Board in these proceedings both before and during the hearing because of the dismissive manner with which she approached the complainant and his complaint. Before the hearing, in repeatedly demanding the production of documents (which the respondent already possessed), the respondent’s representative used an unnecessarily harsh and disrespectful tone in her communications with the Board and the complainant.

28        At the hearing, and in the Board’s opinion, she was disrespectful of the complainant, his representative, and the Board. She was deliberately rude to the complainant when he made a simple request that she repeat a page number to which she had referred. She declined to cross-examine him despite the presence of several key points in his complaint that he had been subject to neglectful representation by the respondent to which he testified during the hearing. Perhaps most surprising, she called no evidence on behalf of the respondent to refute the evidence presented by the complainant. Her body language betrayed a disinterested and disrespectful attitude throughout the hearing.

29        During final argument, the respondent’s representative made bold statements meant to rebut the complainant’s evidence; thus, she attempted to enter evidence that way. The Board reminded her that she had foregone her opportunity to rebut or challenge the complainant’s evidence when she refused to cross-examine him or call any direct evidence of her own on behalf of the respondent. Despite the direction, she persisted in her attempts to enter evidence during the argument phase. She was directed to stop and was advised that such evidence could not be taken into account in the course of the Board’s deliberations.

III. Summary of the arguments

A. For the complainant

30        The respondent was grossly negligent and did not take care of the complainant despite his numerous emails in which he screamed for its help. He was not attacking it but was asking for help to address two situations. The first was the Service Canada competition, in which he alleged the reference check was found to contain false statements (Exhibit 4, at 11.5), and the second was after the layoff finally occurred, and he wanted to grieve it. Further proof of the respondent’s negligence was when, in preparation for the hearing, the respondent asked for the disclosure of documents that it already possessed. It treated the complainant as an annoyance and as something not worthy of its full attention. The fact that it could not locate its own documents or had not kept relevant documents is proof of the respondent’s negligence.

31        Eventually, the respondent acted much too late, on November 2, 2016, which was seven months after the layoff, when it wanted to pursue grievances on the complainant’s behalf. Even then, they were not filed until six weeks later, in December. The employer responded that they were out of time. The respondent accepted the response and never referred them to adjudication.

32        The documents prove that the respondent was aware of the situation long before the complainant was to be laid off. The complainant emailed Ms. Benson on December 3, 2015, asking for her help, which was just under four months before the layoff. The respondent should have been more alert, to protect him.

33        Between April and May 2016, when the complainant and the respondent had their initial discussions on the layoff grievance, he was passed from one representative to another, and no one followed through. He was misdirected at every turn. No one agreed to represent him in the grievance process until after he filed this complaint.

34        On May 13, 2016, the respondent advised the complainant that he would not be represented because he was no longer an employee and therefore had no right to grieve (Exhibit 4, at 56.2). According to the employer’s letters of layoff, he had the right to grieve it, despite what the respondent told him (Exhibit 4, at 49.3, 49.4, 50.2, and 50.3).

35        The complainant vigorously pursued the question of filing a grievance against his layoff. He regularly asked for updates. He put himself back on the priority list. He did what he was told to do, but it did not help, and the respondent did nothing. The settlement offer that he received from the grievances when they were finally filed in December 2016 was nothing new. The employer had made the same offer early in the layoff process.

36        As a result of the respondent’s lack of action, the complainant became very sick and lost his job, which has affected his family. He now suffers from symptoms similar to those of post-traumatic stress disorder, and he has short-term memory problems. He remembers only the detail of this case, because it has become an obsession. He requests compensation in damages for mental distress, pain and suffering, and loss of income.

B. For the respondent

37        The respondent has the right to refuse to represent a member, and a complaint made to the Board is not an appeal mechanism against such a refusal (see Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28 at para. 17). The Board’s role in a complaint is to determine whether the respondent acted in bad faith or in a manner that was arbitrary or discriminatory in its representation of the complainant (see Mangat v. Public Service Alliance of Canada, 2010 PSLRB 52 at para. 43).

38        In this case, the respondent was accused of acting negligently; negligence is
equivalent to arbitrariness for the purposes of this complaint. This refers to the quality of its representation. Even if there is no intent to harm, a bargaining agent may not process an employee’s complaint superficially or carelessly. It must investigate the complaint, review the relevant facts, or seek whatever advice may be necessary. However, the employee is not entitled to the most thorough investigation possible (see Noël v. Société d’énergie de la Baie James, 2001 SCC 39 at para. 50).

39        The duty of fair representation is a procedural right and is not a right to an outcome. Bargaining agents should be accorded substantial latitude in their representational decisions. The bar for establishing arbitrary conduct has been set purposefully high (see Manella v. Treasury Board of Canada Secretariat, 2010 PSLRB 128 at para. 38).

40        The complainant argued that the respondent did nothing, but it spoke to him, corresponded with him, and met with him. The process followed that leads to a decision means that a complainant is receiving representation from the bargaining agent. The duty of fair representation does not require the respondent to do everything possible or to take action when it knows something will happen if it does nothing. The respondent does not have to represent the complainant; it has the right to refuse representation, and the email sent in May 2016 explains why.The respondent is not required to be correct in its advice and it is not negligent if its advice is wrong.

41        The duty of fair representation does not include an obligation on the respondent to take instructions or directions from its members (see Bahniuk v. Public Service Alliance of Canada, 2007 PSLRB 13 at para. 67). In this case, the complainant was not satisfied with the respondent’s actions; they did not meet his expectations. By filing the grievances, the respondent met its duty of fair representation. It may reconsider its position at any time, and in this case, the result was what he wanted. Therefore, there has been no breach of the duty of fair representation.

42        In the alternative, in the event that the complaint is upheld, the only suitable remedy is to allow the respondent time to review the file on its merits and to explore the options in the normal course of labour relations. The respondent has not had the opportunity to assess the grievances on their merits. There should be no remedy other than to allow the respondent to do its job.

43        Complainant’s reply: The respondent was repeatedly asked and allowed to do its job, with no positive results. It never did anything until this complaint was filed. It proved that it could not be trusted to do its job, so there is no reason to trust it to do its job in the future.

IV. Reasons

44        Rarely is a decision maker faced with uncontradicted evidence of such a magnitude as in this case. Through his oral testimony and written communications, the complainant established that he had repeatedly sought the respondent’s assistance at the local, component, and national level, only to be shunted from pillar to post and placated with platitudes and assurances that his interests would be protected. It was all to no avail.

45        The respondent’s representative at the hearing chose to call no evidence or to respond in any meaningful way to the evidence that was presented to the Board, or even to assert that no prima facie case had been established. According to Black’s Law Dictionary, a prima facie case is established when enough evidence is produced to allow the fact-trier to infer the fact at issue and to rule in the party’s favour. Such a case is easily rebutted by presenting evidence that establishes facts to the contrary or facts that put the evidence before the Board in a fuller context. Such evidence in this case might have been what, if any, internal consultation process occurred before the respondent decided to refuse to represent the complainant.

46        Rather, the respondent’s representative declined to cross-examine the complainant in that respect or to call any direct evidence on behalf of the respondent to establish the nature of such consultations and considerations. She demonstrated through her own conduct the disrespectful and intolerant treatment by the respondent of which the complainant complained, and that left the Board with no evidence that would support the respondent’s argument that the respondent met its duty of fair representation. Even the respondent’s argument, while accurate from an academic perspective, creates an unusual situation as the Board finds itself at a loss to apply the argument in the absence of any evidence to contradict that provided by the complainant.

47        The respondent’s representative is correct that the duty of fair representation is a procedural right, but that does not mean that the respondent can dismiss one of its members without due care and consideration of his or her request. The complainant contacted Mr. Janz, Mr. Stapleton, Ms. Hauck, and Ms. Benson from April 21, 2016, up to and including June 23, 2016, about filing grievances, particularly a grievance against his layoff. I have no evidence of what, if any, consideration his request was given, so in the absence of it, I must rely on the evidence that I do have, which is the series of email exchanges that shunted the complainant from one representative to another and that promised to contact him promptly with further information.

48        When that promise was broken, the complainant followed up, only to be shunted elsewhere and to receive further promises. Ultimately, he was told that he would not be represented as he was no longer an employee, despite the contents of the layoff letter, which clearly indicated that he had the right to grieve the layoff and that without notification, he could have grieved his layoff without the respondent’s support, as it was a termination of employment. There is no evidence of any consideration of his request for representation.

49        As the Supreme Court of Canada stated in Noël, a respondent may not process an employee’s complaint in a superficial or careless manner, which in my opinion is exactly what occurred in this case. The complainant has established that the respondent was negligent in the discharge of its duty of fair representation in that it arbitrarily rejected his request for representation. In my opinion, this is supported by the fact that once he filed this complaint, the respondent contacted him in November 2016, took up his cause, and filed the grievances that he had requested in April 2016, albeit far too late — they were denied on the basis of timeliness.

50        As the respondent’s representative argued, the duty of fair representation is a procedural right and not a right to an outcome. The complainant was never guaranteed the outcome that he sought, but the respondent was obligated to consider his request for assistance in pursuing his recourse right. I have no evidence that any such consideration occurred in this case. Bargaining agents should be accorded substantial latitude in their representational decisions, as stated in Manella. However, to be accorded such latitude, the bargaining agent must establish the steps it took in arriving at its representational decision. In the absence of such evidence, I can conclude only that the respondent treated this file arbitrarily and negligently. Deference cannot be given when the only evidence indicates that no true assessment was made of the matter before the complainant was refused representation. This is supported by the comments of the respondent’s representative about the alternative remedy, when she argued that the appropriate remedy would be to allow the respondent the time to do its job and assess the file.

51        Therefore, I conclude that the respondent failed its duty of fair representation.

52        Pursuant to s. 192(1) of the FPLSRA, I may make “any order (that I consider) in the circumstances against the party complained of.” As a remedy for the respondent’s failure, the complainant seeks compensation for salary as well as damages for pain and suffering for himself and his family. I am not satisfied that the complainant has met his onus of proving the damages sought, and I have determined that such an order is not necessary in the circumstances before me. There was never a guarantee that even had the respondent filed the grievance on the complainant’s behalf concerning his layoff, he would have been successful in regaining his job. Furthermore, there is no proof that had he regained his job, he would have worked until age 70 as he testified he would have liked to have done.

53        However, I also disagree with the respondent’s submission that the only suitable remedy in this case is to allow it time to review the file on its merits and to explore options. For the respondent to claim that it has not had the opportunity to assess the grievances on their merits is disingenuous. But for its arbitrary treatment (or, more accurately, lack of treatment) of the complainant’s file, I am satisfied based on the evidence before me that the grievances would have been filed on a timely basis. The proposed remedy suggested by the respondent is completely hollow – the grievances were denied on the basis of timeliness.

54        As stated, s. 192(1) of the FPLSRA gives me the power to make any order that I consider necessary in the circumstances against the respondent. The respondent acted through representatives at different levels of its organization, ranging from the local level to that of its national president. Their actions in this matter were intimately related to their duties as members of the respondent’s executive, so the respondent must bear some responsibility for this violation of its duty of fair representation. A message must be sent that it must discharge these duties in good faith, without negligence and not arbitrarily. Therefore, I award the complainant damages of $2500, to be paid by the respondent. I am satisfied that my authority under s. 192(1) of the FPSLRA is broad enough to cover this remedy (see, for example: Benoit v. Trimble et. al., 2014 PSLRB 46; Ménard v. Public Service Alliance of Canada, 2010 PSLRB 124, at para. 29; and, Taylor v. Public Service Alliance of Canada, 2015 PSLREB 35, at para. 109). The compensation order is logically connected to the breach committed in this case.  

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

V. Order

56        The complaint is allowed.  I declare that the respondent violated s. 187 of the FPSLRA.

57        The respondent shall pay damages of $2500 to the complainant within 90 days of the date of this decision.

58        I will retain jurisdiction to deal with matters arising out of this order for a period of 90 days from the date of this decision.

December 10, 2018.