Date: 20210915

File: 561-34-801

 

Citation: 2021 FPSLREB 107

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Karen tyler

Complainant

 

and

 

public service alliance of canada

 

Respondent

Indexed as

Tyler v. Public Service Alliance of Canada

In the matter of a complaint made under section 187 of the Federal Public Sector Labour Relations Act

Before: Bryan R. Gray, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Herself

For the Respondent: Morgan Rowe, counsel

Heard at Winnipeg, Manitoba,

June 18 to 20, November 25 to 27, and December 3, 2019,

and via teleconference,

December 16, 2019.

REASONS FOR DECISION

 

I. Summary 2

 

II. Evidence 3

 

A. Chronology of selected events 3

B. Ms. Tyler 4

C. The union 8

 

III. Analysis 20

 

A. The law 20

B. Arguments 21

 

1. For the complainant 21

2. The respondent union 29

 

IV. Timeliness objection 33

 

A. The law 34

B. The essential nature of the complaint 36

C. The filing of the complaint 37

D. The triggering event that started the 90-day count 39

 

1. Mr. MacDonald’s March 8, 2016, email 39

2. Mr. Esslinger’s February 1, 2016, email 40

 

V. Conclusion 41

 

VI. Order 45

 

I. Summary

[1] This decision summarizes an otherwise strong case presented by the complainant, Ms. Tyler, who alleged that the Public Service Alliance of Canada (PSAC, “the respondent” or “the union”) failed its duty of fair representation to her while she was absent from work and suffering from an illness and during which time her employer allowed her employment term to expire.

[2] The union filed a written submission to the Federal Public Sector Labour Relations and Employment Board (“the Board”) requesting that the complaint be dismissed due to it being untimely. This submission also stated that it was unclear exactly which actions or circumstances were relied upon to substantiate the alleged failure of the duty of fair representation.

[3] Due in part to that lack of clarity of the many allegations, and to ensure a full and fair hearing for the self-represented complainant, I directed that the motion to dismiss the complaint would be heard concurrently with a hearing on the merits of the complaint.

[4] Ms. Tyler adduced compelling evidence that showed that the union’s communications to her were neither timely nor sufficiently clear to allow her to properly understand its conduct of her file as it related to her desire to pursue redress for her employment term being allowed to expire.

[5] More importantly, the union failed to recognize what might have been an avenue of redress to pursue with the Canada Revenue Agency ( “the employer”) despite the complainant’s repeated emails asking the union to consider and pursue such possible redress on human rights grounds.

[6] However, even if I accept the complainant’s submission as to the latest possible triggering event by which she knew or ought to have known of the issue that formed the basis of this complaint, which thus began the 90-day statutory time limit to make it, the evidence clearly established that the complaint was made beyond the 90-day deadline.

[7] Despite Ms. Tyler asking for an accommodation due to her illness to overcome this 90-day time limit, I am precluded by statute of Parliament from doing so and for that reason alone cannot allow this complaint.

[8] Ms. Tyler invested a great deal of herself into researching, preparing, and presenting this matter. Despite my ruling that this complaint is untimely, I will summarize the evidence and analyze the allegations relevant to the essential element of the case to memorialize these matters which Ms. Tyler said are of such great importance to her.

II. Evidence

A. Chronology of selected events

[9] This is a chronology of some selected events. It is not exhaustive of all the issues and events discussed at the hearing:

- January 14, 2015: Ms. Tyler first contacted the union for assistance, and her file was assigned to Elaine Montour. She sought assistance with problems including what she considered harassment by her managers, a related request to move to a different workplace to avoid the alleged harasser, possibly returning to her SP-3 position from the SP-4 position that she held on an acting basis, and discussing her challenges due to the exhaustion of her leave balances and the related issue of her manager requesting doctors’ notes for sick-leave claims.

- January 21, 2015: Ms. Tyler and Ms. Montour met with a manager.

- March 18, 2015: Ms. Tyler was placed on a performance improvement plan.

- April 22, 2015: Ms. Tyler suffered what she described in her own words as a “mental breakdown” and went on leave without pay (all her paid leave had been depleted by then).

- April 28, 2015: Ms. Montour met with the CRA to discuss Ms. Tyler possibly returning to her SP-3 position rather than the SP-4 assignment she had accepted months earlier. Ms. Tyler deemed the return to the SP-3 position unacceptable as she was adamant that she be relocated away from a supervisor who she alleged was harassing her.

- July 31, 2015: Ms. Tyler was preparing to return to work but received a phone call from the CRA in which she was informed that her term position expired on June 26, 2015, and that there was no work for her to return to.

- August 3 to 11, 2015: Ms. Tyler met with Ms. Montour several times, after which they met with management.

- August 19, 2015: Ms. Tyler was offered a term employment contract effective August 24 to October 2, 2015. Management refused the union’s requests to backdate the term.

- October 15, 2015: The union successfully grieved an erroneous performance assessment of Ms. Tyler that was seen as an impediment to her career and that possibly had been a factor in the decision to allow her June term to expire. This happened despite Ms. Tyler’s assertion that her office was busy and her colleagues who were also on terms expiring at the same time were renewed so that they would have continuous employment.

 

B. Ms. Tyler

[10] Ms. Tyler testified that she began working with the CRA in 2009 and that she had secured employment terms of as brief as two weeks and as long as a year. She testified that she was in an SP-03 position and performing her duties well and that she had enjoyed three years of continuous employment until she was given an acting assignment to an SP-04 position just shortly before the events at issue arose.

[11] She explained that by early 2015, a dependent family member had become gravely ill, and that she experienced a great deal of stress and demands upon her time as a single parent related to caring for this person. She testified that it caused her to be absent from work multiple times. The evidence established that in fact, Ms. Tyler had exhausted her leave and sought advances of it.

[12] Her supervisor requested doctors’ notes for all absences, which she sought help with from Wanda Dufty, who was a co-worker and the union local president.

[13] The hearing received an exhibit containing an email dated January 14, 2015, from Ms. Dufty to Ms. Tyler, informing Ms. Tyler that she should weigh her options, that she should speak to Ms. Montour, the union representative and shop steward, and that until then, no manager would be contacted, as Ms. Tyler was concerned that her union representatives not enter into management discussions without her direction to do so.

[14] The uncontradicted evidence established that on July 31, 2015, the CRA phoned Ms. Tyler to inform her that her term had expired on June 26, 2015, thus ending her CRA employment and ceasing her membership in the Union of Taxation Employees (UTE) because she was no longer an employee in a bargaining-unit position.

[15] Ms. Tyler testified that it was the first time she heard the news. Her former manager told her not to report to the office the next week as there was no work for her. She explained that the call was prompted by her communications with the employer that indicated that she and her doctor felt that she was ready to return to work.

[16] Ms. Tyler testified that had she been extended at the end of June, she would have automatically been “permed-up”, which she said means that her term position would have rolled over into an indeterminate position. She explained that she desperately sought the income security, pension, and benefits that would have accrued to her by means of an indeterminate position.

[17] Ms. Tyler testified that she immediately began trying to contact the union by phone and email. She called her local president, Ms. Dufty, along with Ms. Montour and Gary Esslinger of the national union regional office in Winnipeg, Manitoba. Several emails ensued to different union representatives through the next few days and spanning the August long weekend.

[18] In the following week, in early August, Ms. Tyler exchanged emails with the union’s national president, Robyn Benson.

[19] Ms. Tyler helpfully prepared an index of her more relevant communications, which listed 193 emails, calls, meetings, and registered letters and their relevance to her case.

[20] She tendered as exhibits hundreds and hundreds of emails. They lacked coherent pagination and were not always presented in chronological order in the exhibit binder, which had only five tabs. Most of the emails and other documents had been copied and pasted, which often made it difficult to be sure of the date, recipients, and, at times, the full text of a given communication.

[21] At the hearing, both parties and I spent a great deal of time collaborating to ascertain which aspects of the testimony were associated with which page of emails in the binder. While this created some uncertainty as to the exact dates or times of some communications, it would have been unjust for me to exclude the documents on this ground alone.

[22] With the commendable assistance, patience and understanding of respondent counsel, the hearing proceeded with the mass of email excerpts as exhibits.

[23] At 2:30 a.m. on August 7, 2015, Ms. Tyler emailed Ms. Benson. Among other things, she made clear her dire predicament of losing her employment. She wrote, “My team leader Tues [sic] this week stated that she was obligated to inform me that as of June 26, 2015 I am no longer an employee of CRA.” She also wrote, “My livelihood is on the line.”

[24] Ms. Benson replied from the union’s national headquarters the same day, stating, “Hi Karen I have sent your email to Gary Esslinger who is your Regional Vice President and for sure he will have someone help you.” Minutes later, Ms. Tyler replied, stating that she had left messages and that she was waiting to hear back from both Mr. Esslinger and another member of the PSAC’s regional office. Within minutes of that message, Ms. Benson replied with, “Have you called Wanda or Gary McNabb”.

[25] Ms. Tyler testified to making hundreds of phone calls and sending hundreds of emails to many union officials.

[26] Ms. Tyler emailed Mr. Esslinger at 2:25 p.m. on August 10, 2015, stating that she had left voicemails for him. She said that she had left three detailed voicemails on his cell phone in the past four hours. She begged him to return her calls that day, stating that she had an urgent matter to discuss and that she was to meet with “upper management” the next day.

[27] Ms. Tyler closed her email by stating, “ps did you speak with Ms. Montour after I phoned last Friday when I specifically asked you not do so?) [sic]”.

[28] Despite many other messages and meetings, Ms. Tyler continued to press her union for help. On September 6, 2015, she wrote to Ms. Dufty, requesting that the union immediately file grievances on her behalf arising from a number of the CRA’s actions. (She also noted that she had obtained a brief employment term that was to end on October 2, 2015.)

[29] A similar message was mailed to Mr. Esslinger on September 24, 2015, and was then sent again via registered mail two days later, as the Ms. Tyler continued to await a response.

[30] The evidence suggests that Ms. Tyler had become mistrustful of her managers and that she was concerned that the union representatives speaking to management about her issues not be changed, lest a new representative not have important information as background to an issue.

[31] Thirty minutes later, Ms. Tyler again emailed Ms. Benson and told her that she had still not received a return call from Mr. Esslinger. She expressed concern that she required help from someone other than her union local representatives, whom she wrote might be in a conflict of interest. In her testimony, she explained that her local union representative, Ms. Montour, reported to one of the senior managers at the office. Ms. Tyler suspected that Ms. Montour might not advocate as vigorously for her due to not wanting to upset her own senior manager.

[32] Ms. Tyler specifically wrote, “In particular at this point I thought the first argument to bring up with management is the Duty to Accommodate.”

[33] Ms. Tyler also wrote this:

All I have been requesting is to get responses from the people I am reaching out to contact me to discuss. As this has not happened, I request that you do not pass anything else along. My experience and concern is people are misunderstanding or perhaps getting defensive versus contacting me. This is what I am again requesting for the sake of my job.

 

[34] Ms. Benson replied very promptly, the same afternoon. She wrote that she had forwarded Ms. Tyler’s email to the UTE’s (component) president and that Ms. Benson (PSAC national president) was sure he would contact Ms. Tyler.

[35] On August 12, 2015, Ms. Tyler emailed Ms. Benson. In addition to writing several sentences, some typed in capital letters, asking her not to forward or share the email, and after again expressing concern that her union local representatives seem very defensive when they dealt with her, she begged for assistance from a union official named Mr. Campbell. She also wrote, “the clock is ticking and I want to make sure I file a grievance.”

[36] On August 13, 2015, Ms. Tyler emailed Ms. Montour. After a few paragraphs that are not entirely comprehensible as they appear to continue some other conversation, she wrote in closing, “That is NOT what this is about. This is about Duty to Accommodate.”

[37] That same day, someone writing for Ms. Benson emailed Ms. Tyler and provided her a toll-free number for the UTE.

[38] On August 16, 2015, Ms. Tyler emailed Ms. Montour. Among other things, she wrote this:

Still not clear on why some departments of the CRA phone and offer term extensions as they do with others in their section to see if they wish to accept if they are away ill, or injured. Is this not done in Appeals? For example, if someone on [sic] maternity leave, would it not either be discussed before they left or while absent that they be contacted to say yay or nay to an extension…?

 

[39] On September 6, 2015, Ms. Tyler emailed Ms. Dufty, requesting that immediately, the union file grievances on her behalf for a number of actions by the CRA that violated the relevant collective agreement.

[40] Ms. Tyler specifically wrote that she believed that the CRA had violated the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA) in how it had treated her. She also mentioned that she could not afford to wait, that being without work in July had caused her to lose her benefits, and that she believed that it was due to the erroneous performance evaluation.

C. The union

[41] In all fairness and with all respect due, Ms. Tyler’s local union representative (Ms. Montour) at times, worked hard to represent her. The evidence clearly established that much was indeed done to represent her in many of the numerous challenges she faced with her employer over many months and years.

[42] The union presented exhibits showing emails exchanged throughout the winter of 2015 that bore witness to the fact that Ms. Montour attended meetings with Ms. Tyler and management to discuss the several work challenges that Ms. Tyler faced.

[43] In addition to requesting that the complaint be dismissed due to it being untimely, the union maintained that the complainant had performance problems at work, which either wholly or in part were responsible for allowing the employment term to expire in June 2015.

[44] It pointed to a March 20, 2015, email that Ms. Tyler forwarded, which detailed that her supervisor had written a long list of expectations that had been discussed at a meeting and that formed the performance improvement plan (renewed in April 2015) put in place in January 2015. It included Ms. Tyler attending work on time, adhering to proper break times, avoiding making up time later, accepting the files assigned to her, working more independently, minimizing distractions to achieve fewer errors, accepting constructive feedback without reacting emotionally, and understanding that her team leader might not be able to respond to every request immediately, due to other office priorities.

[45] Three union representatives were called to testify. It was both revealing and disconcerting to listen to them testify that non of them had decision-making responsibility for the conduct of Ms. Tyler’s file.

[46] The fact that none could say that he or she had control of Ms. Tyler’s representation fits exactly into Ms. Tyler’s case narrative that the union simply missed her most important issue.

[47] On November 7, 2015, as Ms. Tyler continued to write to and phone her union representatives, requesting assistance on many issues, the local president, Ms. Dufty, replied with this:

…

… I have received all of your information and provided all of your requests to Gary Esslinger as he looking [sic] after your concerns. He has advised he is working on a response to you but he will be out of town until late next week. You can always email him and he should respond.....I cannot go over his head as he is our Regional Vice President, my union boss so to speak. I hope this helps.....Thanks and take care.

…

 

[48] Both Mr. Esslinger and Ms. Dufty acknowledged Ms. Tyler’s many attempts to contact them, but both went to great lengths in their testimony to describe how they were very busy with other things and that they were not responsible for her file.

[49] Ms. Montour had the most contact with Ms. Tyler and clearly did much to help her, including handling the successful grievance against the flawed performance evaluation.

[50] However, none of the union’s witnesses could give definitive testimony as to who did what in the weeks and days leading up to the expiry of Ms. Tyler’s term employment and in the time immediately following the discovery of that expiration.

[51] Perhaps the most direct answer that was mustered in evidence from the three union witnesses addressing the essential issue underlying this complaint was Mr. Esslinger’s September 28, 2015, email to Ms. Tyler, in which he wrote this:

I read the information you sent me last week and I will address only a few things contained in it. Again the entire issue of unjust dismissal or constructive dismissal is not present I this situation. Firstly, I would like to point out that most definitions consider dismissal as a termination of employment. While I understand your term is ending soon currently you are an employee so in fact you have not been dismissed. Dismissal is also defined in terms of being fired the fact of the matter is you were never fired. Initially you had a term not extended which happens to many term employees and that could not be construed as being fired. As well it is my understanding that you are eligible for rehire so again your employment has not been permanently severed.

In reviewing the documentation you submitted what you did not possibly notice is that part three of the Canada Labour Code applies to employees who are not covered by a collective agreement, as you are covered by a collective agreement as are all employees who are either indeterminate, or determinate employees with more that a three month employment contract this legislation does not apply.

In it unfortunate that due to the circumstances and events taking place in your life you were off work had did not have an opportunity through a performance improvement plan to possibly bring your performance up to a satisfactory level. In discussing with my National office there is no obligation on the part of the employer to extend employment in order to work through any timeframe originally allocated to improve performance. On either point you mention you were on critical illness leave, I have no idea what you are talking about, its my understanding is that you were on sick leave as a result of stress I’m not actually sure that constitutes critical illness leave and regardless based on the circumstances and the fact that you’re a determinate employee it has no real bearing on the situation.

I understand you would like to believe that somehow this should be constructive dismissal but again as I look at examples you have provided me none come close to reflecting the situation at hand for example a salesperson from employee to independent contractor. As I said to you before your situation would never make it to adjudication but even if it could when the question is asked on September 28, 2015 was Karen an employee or is Karen eligible to return to the Tax Canter as a term employee? In both cases currently the answer would be yes to which an adjudicator will very clearly state there is no evident dismissal in this case.

As I mentioned previously you certainly could look at a formal harassment complaint, I did confirm with HR that it does not have to be filed before your last day of work, you certainly can also file a grievance on your performance assessment, to be quite frank the likelihood of getting a level III is next to impossible if that is your goal. Unfortunately again with performance assessment they are not adjudicable so they cannot end up in front of the third party, so all you have is management responding in respect to a management decision

[Sic throughout]

[Emphasis added]

 

[52] The union pointed to another email dated February 1, 2016, from Mr. Esslinger that it argued should have made Ms. Tyler understand that no further actions would be taken to address her concerns arising from the expiry of her term employment in June 2015.

[53] Ms. Tyler testified that she read that email and that she understood that it addressed her concerns with what she felt was repeated workplace harassment that she suffered from her management and that it did not address her concerns over potential human rights redress.

[54] The email states:

hello [sic] Karen, I have been really busy, to reiterate what I did say about a possible harassment complaint, as the timeframe for a grievance has long since passed you had to avail yourself of the employer’s internal harassment process. I believe what I did say is that I could review it after you’ve completed it quite honestly I don’t recall and I don’t believe I would ever state that I would assist you in a human rights complaint again that’s something that is filed by an individual and the Union doesn’t get involved.

 

[55] In her cross-examination Ms. Tyler stated as follows:

- The Board’s registry received her complaint on June 9, 2016. She added that she thought that she had sent it late on the day before as that was 3 months after she received the letter through which she had been able to understand what had happened, which she said meant that she had complied with the 3-month deadline.

- She confirmed that she sent 4 emails with a total of 18 attachments to Ms. Montour in 12 hours on the day in July when she found out that her term had not been renewed.

- She confirmed that Mr. Esslinger phoned her on July 31, 2015.

- She confirmed that in August 2015, she accused the union of being in a conflict of interest with the CRA and that she wrote to the union’s national president and asked her to avoid sharing information about her file with the local union officials in Winnipeg.

- She confirmed that she recalled meeting with Mr. Esslinger and Ms. Montour on September 17, 2015, and that she mentioned her concerns over the CRA violating her human rights when it declined to extend her term at the end of June 2015.

- She stated that she could not remember being told at that meeting that she was no longer a union member and that therefore, no grievance could be filed on her behalf.

 

[56] Ms. Dufty testified as follows:

- Ms. Tyler called her in January 2015 seeking help to obtain family leave. Ms. Tyler also told her that she was very concerned that union representatives not speak with management.

- That same winter, Ms. Tyler demanded that Ms. Montour represent her.

- She was at a national convention near the end of July 2015 and then on leave for two weeks and so might have missed calls from Ms. Tyler.

- Ninety days of continuous service are required to qualify for recourse under a collective agreement. But if someone said that his or her employment term was allowed to expire unfairly, then the union would try to help and would have to talk to management.

- She had no involvement with Ms. Tyler’s term expiring and with any related human rights issues. And more so, once Mr. Esslinger took over the file, she could not tell him what to do as he was her boss.

- With respect to a letter dated September 6, 2015, from Ms. Tyler, she did not recall speaking to Ms. Tyler about it but stated that she gave it to Mr. Esslinger for him to reply.

- With respect to a registered letter from Ms. Tyler dated September 26, 2015, she stated that she had no notes of any such dealings with Ms. Tyler and that Ms. Montour retired around that time, so Mr. Esslinger would have had the letter or any notes about dealing with the issues in it.

- With respect to a highly detailed email from Ms. Tyler dated October 25, 2015, she stated that she received it but that because it was sent to her CRA email account, she could not reply, as doing so would have breached the relevant code of conduct. So, it was sent to Mr. Esslinger.

- She had no involvement in any of Ms. Tyler’s concerns and could not answer any more-detailed questions about the issues because she had no first-hand knowledge of them.

- Again, she asked Mr. Esslinger to look into Ms. Tyler’s concerns.

- She had every reason to believe that he was working on the issues and replying to Ms. Tyler’s emails, calls, and registered mail because he had 39 years of experience.

 

[57] In cross-examination, Ms. Dufty stated that:

- She confirmed that leave without pay is in the relevant collective agreement, that it is sometimes used to maintain employee status, and that a manager must approve it.

- She agreed that she could have called Ms. Tyler as a way of replying to the emails that Ms. Tyler had sent to her work account.

- She confirmed that she did not verify whether Mr. Esslinger or Ms. Montour were replying to Ms. Tyler’s emails and letters because they are both experienced and because Mr. Esslinger was her boss, so she could not tell him what to do.

- She did not reply to Ms. Tyler’s April 7, 2015, email because she thought that Mr. Esslinger and Ms. Montour were helping Ms. Tyler.

- She was aware that Ms. Tyler claimed that her team leader was harassing her but stated that some harassment concerns are really employee performance problems and that it is management’s duty to performance-manage staff.

- She did not consider whether her failure to reply to Ms. Tyler’s many messages and emails could have added to Ms. Tyler’s stress.

- She was not aware that Ms. Tyler’s daughter was very ill and that Ms. Tyler had missed work to care for her.

- She was not aware of whether the union sought accommodation for Ms. Tyler during that time, although occasionally, she received an update on the matters from Ms. Montour.

- She did not recall receiving any messages from Ms. Tyler around the end of July or early August 2015 about Ms. Tyler’s term not being extended.

- She confirmed that she understood that Ms. Tyler received notice of the lack of extension only approximately one month after the fact and that it was wrong to receive the notice so late.

- She agreed that Ms. Tyler should have received pay retroactive to the expiry of her June 2015 term.

- However, she stated that she did not know all the details when she was asked if Ms. Tyler’s tenure of continuous employment should also be reinstated and added that Ms. Montour was to look into all that.

 

[58] Ms. Montour testified as follows:

- She enjoyed 15 years on the local union executive, including time as vice president and chief steward, before she retired from the CRA in December 2016.

- Her union work representing Ms. Tyler began in January 2015.

- The initial problems identified included the complainant having issues keeping up with the workflow and being harassed by the team leader for it, along with her accuracy and production rates once she was elevated into the SP-4 position.

- Because the problems were related to performance, she told Ms. Tyler that she had to speak to management but that she had been told not to. Ms. Tyler had tied her hands, so to speak.

- In spring 2015, she asked Mr. Esslinger for advice with respect to helping Ms. Tyler but stated that she did not recall what he told her.

- She confirmed that meetings were held with management in March 2015 but that she did not recall what was discussed, or the outcomes, or the follow-up.

- She recalled that Ms. Tyler had exhausted her sick leave and had had to use leave without pay in the spring of 2015, but she could not recall any more about it.

- She recalled an April 2015 meeting with management. She also recalled that later that month, while she was at an out-of-province convention, she received calls from Ms. Tyler, who was having a meltdown and demanded to be relocated from her work area.

- Again, in April 2015, Ms. Tyler told her what she was allowed to say to management, which effectively tied her hands.

- She also called the (CRA) Chief of Appeals and sought his assistance to find an opening in a different office for Ms. Tyler, but he said that none was available.

- She then phoned a manager and secured an agreement for Ms. Tyler to return to her SP-3 position. Her SP-4 salary would be paid until the term ended at the end of June 2015. Discussions were held with management, and it was understood the Ms. Tyler’s term would be extended to continue after the end of June 2015 at the SP-3 level. Management understood that Ms. Tyler would soon approach the date on which her terms would roll over her position into one that was indeterminate.

- In the summer of 2015, she was stunned to learn that Mr. Tyler’s term had been allowed to expire and that the associated notice had not been provided in advance.

- When she contacted Ms. Tyler’s team leader for information about the term being allowed to expire, the team leader also claimed to not have known it happened. She stated that she could not remember the details of the rest of the conversation.

- In her discussions with the Chief of Appeals, he said that notice should have been given and that he would approve a new term to begin in August to run for less than three months. When she pressed him to make it retroactive to ensure that the complainant would have continuous employment from the end of June, she said he did not answer.

- Before she and Ms. Tyler met with the Chief of Appeals on August 11, 2015, Ms. Tyler told her not to speak at the meeting, so she was not able to help.

- She confirmed that by August 19, the Chief of Appeals sent an email in which he stated that notice that the complainant’s term was to end in June had been sent to Ms. Tyler and that no retroactive term would be offered.

- She said that at that point, the backdating issue could not be challenged in any way.

 

[59] Ms. Montour stated in cross-examination that:

- Ms. Tyler emailed her on April 10, 2015, seeking help in the form of more training, but Ms. Tyler had told her three months earlier not to talk to management.

- When I reminded the witness that she had testified that part of her duties at the CRA’s office included being a trainer, and I asked her whether this might fact might jog her memory as to anything more she did for Ms. Tyler in response to this request. help Ms. Tyler. Ms. Montour evaded answering this by replying that she did not recall but that she was aware that Ms. Tyler had performance problems.

- She stated that she was aware of the duty to accommodate. But after a long reply that covered other issues, she did not provide any specific information about what she might know about that duty.

- She confirmed that she was aware that Ms. Tyler had a mental breakdown in the office in late April 2015 and that she was aware of Ms. Tyler’s gravely-ill daughter at that time.

- She confirmed that she was aware that illness and disability may be both physical and mental.

- She could not assume that when Ms. Tyler was away from work later that spring, it was due to mental illness, but stated that she knew that Ms. Tyler had a mental breakdown earlier and that her daughter’s health was not improving.

- She could not recall if she spoke to Ms. Dufty and Mr. Esslinger about Ms. Tyler’s mental breakdown and very-ill daughter while Ms. Tyler was off work that spring.

- She said that she did recall the August 12, 2015, email that she received from Ms. Tyler but stated that she could not remember what if anything she did about the issues it raised. It detailed that Ms. Tyler was away from work due to illness and due to caring for her daughter. It also stated that in June, she had spoken to a named person at the CRA CCSC office about being ill and on leave and was told not to worry about job security while she was away due to her illness and due to caring for her daughter.

- She had shared the conduct of Ms. Tyler’s files with Ms. Dufty and Mr. Esslinger and stated that she spoke to Ms. Dufty about all the issues. After a pause, she added that direction on Ms. Tyler file was “mostly up to Mr.Esslinger.”

- She viewed a July 21, 2015, letter from Ms. Tyler’s team leader requesting return-to-work medical information from Ms. Tyler’s doctor. She explained that the letter stated that Ms. Tyler “was” employed. She added that one week later, management informed her that Ms. Tyler had been retroactively terminated. This explanation contradicts the words in the letter, which state that Ms. Tyler “has been continuously employed since January 18, 2010 and currently occupies the position of taxpayer relief screening clerk”. When I asked the witness to explain the discrepancy between the letter speaking in the present tense about Ms. Tyler’s employment and her explanation of it being in the past tense, she replied that that was how she understood it.

- She said that she received Ms. Tyler’s July 30, 2015, email about what was to be her return to work immediately after the August long weekend and that she did not recall what, if anything, she did about it.

- She said that she remembered Ms. Tyler phoning the next day and stating that she had just been told that she had lost her job. The witness then said that she immediately contacted a CRA senior manager, who said that she knew nothing of Ms. Tyler’s term expiring.

- She only vaguely recalled hearing from Ms. Tyler in early August 2015 about concerns over the loss of tenure and benefits.

- She vaguely recalled receiving information from Ms. Tyler to help her prepare for a meeting on August 11, 2015, with the Chief of Appeals to discuss her term not being extended and to seek being rehired. And she recalled meeting with Ms. Tyler briefly before going into the meeting.

- She would have used all the information Ms. Tyler sent to her at the meeting.

- She did not recall if she spoke to the Chief of Appeals - when following up after the meeting.

- She did not remember the discussions and had no notes from a meeting held one month later with Ms. Tyler and Mr. Esslinger. But she recalled sharing with Mr. Esslinger her notes from the meeting with the Chief of Appeals.

- A senior manager had told her that Ms. Tyler was within a few months of being made indeterminate due to her years of continuous employment.

- She could not recall if she ever discussed with anyone the human rights issue of the duty to accommodate.

- She said that every time she received an email from Ms. Tyler, she discussed the issues in it with Ms. Dufty or Mr. Esslinger.

- She raised the request for a retroactive term to provide continuous employment for Ms. Tyler from June 2015 but stated that it was a long shot. The focus was simply to return Ms. Tyler to work.

- She said that she was aware that the term of less than three months that started later in August would cut off all Ms. Tyler’s benefits but stated that the choice was either that brief term or no work at all.

- She said that all this was discussed with Ms. Dufty and Mr. Esslinger and that she used all the information in all of Ms. Tyler’s emails to help advocate with the Chief of Appeals to return Ms. Tyler to work and to seek the retroactivity of the new employment term.

- She said that she could not recall if the issue of making the new term retroactive was raised in any subsequent meetings with management.

- She said that other appeal clerks who were extended at the end of October and that she did not hear anyone at the end of June complain that his or her term was not renewed, so she assumed that everyone on term employment was extended then.

- She said that despite being shown emails that stated that she had met with management in April about Ms. Tyler’s term contract of employment, she said that she could not remember such a meeting or what might have been discussed.

- She was also shown emails stating that she had been involved in meetings in July about the same matter; similarly, she had no recollection of them.

 

[60] In one of the most revealing glimpses into the otherwise opaque review of the circumstances of Ms. Tyler’s June-ending term not being extended, the witness was asked to comment upon an email about Ms. Tyler from the CRA, Chief of Appeals, dated August 19, 2015.

[61] In this email the Chief of Appeals writes that he had just spoken to Ms. Montour about a meeting the next day and about offering Ms. Tyler an assignment for a brief employment term. He added that Ms. Montour immediately asked about the three-week period from Aug 4 to 21, when Ms. Tyler had expected to return to work. He then wrote that he replied that he was not about to backdate a job offer.

[62] He also wrote this:

Elaine (Montour) also had questions about any further entitlements Ms. Tyler had because of the lack of notification she received when her term had ended. I responded that Ms. Tyler had received the notification in May from CCSC about being on LWOP due to illness, plus a letter sent in July in follow up when her term assignment ended in June., We agreed that this discussion should take place separately and that Elaine will try to discuss this on Ms. Tyler’s behalf at a later time.

 

[63] When Ms. Montour was asked in cross-examination to discuss the follow-up noted in the email’s closing, she replied again that she could not remember.

[64] In a redirect question about the email, she was asked to elucidate upon its text discussing Ms. Tyler’s planned August return to work and whether working part-time would be required as an accommodation. She said that she did not recall anything further on that point.

[65] Mr. Esslinger testified that:

- He had 39 years of union involvement.

- When local members corresponded with the union’s national headquarters, regional offices such as his were always kept in the loop.

- He first became aware of Ms. Tyler’s concerns in a March 2015 discussion with Ms. Dufty and at a meeting around that time, which he said he attended as a “passive observer.”

- He said that he had no further involvement until August 2015, when he heard that Ms. Tyler’s term had not been extended. He said that he heard something about management harassment from Ms. Montour, that he had no details, and that he “knew nothing”.

- He said that in some emails, he had seen the issue of discrimination on one of the prohibited grounds but that he had no details and no personal information.

- He stated that he has “seen many, many cases in [his] career when an employee feels harassed but in the end it is just a team leader trying to get the employee to do the job to the best of their ability”. But he stated that he never had any information to assess whether that was Ms. Tyler’s situation.

- He called Ms. Tyler’s team leader a “strange duck” and explained that at an Employee Assistance Program committee meeting that he attended, the team leader spoke in very derogatory terms about some of her employees and one of her staff who had mental health problems and that this concerned him very much.

- He assumed that either Ms. Dufty or Ms. Montour had contacted management in the spring of 2015 while Ms. Tyler was ill and away from work. He later heard that her term had not been extended.

- He received a call from Ms. Tyler on July 31, just after she had found out that she was unemployed. He said that he was busy with his granddaughter at the time and that after maybe 40 or 50 minutes, he told her that he had to leave the call. He added that all the issues she asked him about could have been raised with the local executive and that it was not his job to take over the executive’s work.

- He thought that obtaining a term retroactive to June had virtually no chance of success and that trying to obtain one would almost constitute fraud.

- Ms. Tyler was not fired; her term simply ended, which occurs regularly.

- The employer’s handling of the expiry of Ms. Tyler’s term was “completely bush league”. It was ended due to her performance problems as an SP-4, but she was later rehired into an SP-3 role.

- When her later term expired at the end of October, she was no longer an employee. He stated that 99 out of 100 times, it means that the union can do nothing more to help.

- Ms. Dufty was wrong when she said that in September 2015, she forwarded Ms. Tyler’s emails to him for him to action.

- Any actions for Mr. Tyler were to go to Ms. Montour.

- He said that Ms. Dufty and Ms. Montour emailed him just as a “CYA”. I take as notice that this means “cover your ass”.

- He stated, “I never once thought all these emails they sent me about Tyler were for me for action. That’s the job of the local executive.”

- He added, “I don’t remember the September 17, 2015, meeting with Tyler and Montour. I was not actively representing Tyler. That was up to the local executive.”

- He said that he never received the registered letters that Ms. Tyler sent to him but conceded that Ms. Dufty had shown him a copy of one.

- When he was shown meeting notes from that date, which mentioned that he spoke to national headquarters, he said that nothing can be done about an end to term employment.

- He confirmed the meeting notes, as he said that harassment was discussed and that he told Ms. Tyler to keep notes and to make a complaint herself.

- When he was asked about the notes that stated that he said that he might have to rethink his decision in response to a question from Ms. Tyler about her term expiring and the retroactivity, he said, “Well, as far as retroactivity, maybe if there were other issues at play.”

 

[66] I asked the witness to clarify for me what “other issues” meant. He explained that were an employment term allowed to expire for “arbitrary reasons”, then maybe something could be done. But in this case, performance issues were the reason.

[67] He said that if someone on a term were let go inappropriately, then the union would look into it, but that it had had very little success gaining recourse in such files.

[68] I then asked the witness to explain what “arbitrary reasons” might be. He said an example would be if a member of staff on an employment term were on maternity leave, and the term was soon as to expire, he could see becoming involved to seek that the term be extended with continuous employment.

[69] I note parenthetically here the bitter irony this must have been for Ms. Tyler to listen to as she used this exact example in one of her 2015 emails telling her union to pursue a human rights grievance (noted earlier in this decision) as she was begging for help from her union.

[70] I asked the witness if anything in Ms. Tyler’s files in 2015 or even on that hearing day before the Board caused him to consider whether a possible human rights issue had appeared in the employer’s actions. He said that one thing did occur to him, Ms. Tyler’s daughter’s severe illness, but that the local executive should have checked into it at that time.

[71] He then added that he did not think that the employer used it against Ms. Tyler and repeated again that the local executive should have been on top of all such issues.

[72] And finally on this point, he acknowledged telling Ms. Tyler in a February 1, 2016, email that he did not recall stating and that he did not believe he would ever have said that he would assist her with a human rights complaint and that the union does not become involved in such matters.

[73] When challenged in cross-examination about his earlier testimony, in which he stated that Ms. Tyler’s manager was a strange duck and that she made disparaging remarks about an employee with a mental illness, Mr. Esslinger became visibly uncomfortable in his witness chair, fumbled for words and appeared evasive as walked back his comments about the manager.

[74] He then distanced himself from any suggestion that he should have considered whether the employee being disparaged about having a mental illness was in fact Ms. Tyler. He responded defensively by stating: “There was nothing from me as far as due diligence as I never represented [Ms. Tyler].”

[75] He then replied to a question by stating that he had no idea that Ms. Tyler had a mental breakdown at work in April 2015 and that she then went on leave without pay due to illness that spring. He said, “Why would they tell me that?”

[76] In summary, I am moved to point out what perhaps is obvious: the lack of credibility in the testimonies of the three union witnesses.

[77] After being posed many questions, Ms. Dufty repeated that Mr. Esslinger had been in charge and that she had had nothing to do with Ms. Tyler’s file. Several times, she stated that she asked him to respond to Ms. Tyler’s emails and letters.

[78] Ms. Montour did the most for Ms. Tyler and repeatedly testified that she asked Mr. Esslinger for advice and that she deferred to his direction on this file.

[79] However, when Mr. Esslinger was affirmed, my hopes to hear an explanation of the whole matter were dashed, as he said that he had little or no memory of any of these matters and repeatedly stated that nor did he have responsibility for the file as representation was the local executive’s job.

[80] The curious frequency and unusually firm emphasis that all three witnesses placed on their statements that they did not have responsibility for the file and could not remember important details about it became painfully apparent. Then, after the two witnesses repeatedly stated their deferral to Mr. Esslinger on the file, he denied having responsibility for it.

[81] When asked in his examination-in-chief about his role representing members of the local union in Winnipeg, he replied, “My role is not to take over the jobs of the local executive.”

[82] When asked more directly about his efforts related to Ms. Tyler, he replied as follows: “I never once thought all these emails were sent to me for action; that’s up to the local.” This, of course directly contradicted the testimony of the local president, Ms. Dufty, who testified that she forwarded several emails from Ms. Tyler to him, for him to handle the issue.

[83] When challenged about his attendance at meetings with Ms. Tyler and Ms. Montour, he claimed to have no memory of them but again stressed that he did not actively represent Ms. Tyler and that the local executive did the best it could.

[84] The best that can be said after listening to hours of testimony from Ms. Dufty and Mr. Esslinger is that they did not appear to have rehearsed their testimonies given their direct and repeated contradictions of each other related to who had responsibility for the file.

[85] If the witnesses are to be believed, nobody, not even Ms. Tyler’s managers, knew that her term was being allowed to expire. And when Ms. Tyler pressed for a grievance to be filed about a human rights violation, nobody admitted to even considering it, despite Mr. Esslinger offering a potential human rights violation as an example of when the union might consider pursuing redress with the CRA if it allowed a term of employment to expire while the employee was away from work for medical reasons.

[86] The only glimpse into this veil of darkness cast by the union’s witnesses occurred when Ms. Montour testified that she met with the Chief of Appeals in early August 2015 and pressed him to reinstate Ms. Tyler’s term retroactively, to ensure her continuous employment. She said that he did not answer her.

[87] And that is where the union left the matter, with nobody able to testify or to point to documentary evidence of an investigation into the issue or of an analysis as to whether it should be grieved.

[88] This despite Ms. Tyler’s repeated and detailed pleas that the union do so.

III. Analysis

A. The law

[89] Paragraph 190(1)(g) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) 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.

 

[90] Section 185 of the Act defines an unfair labour practice as anything prohibited by ss. 186(1) or (2), 187, 188, or 189(1).

[91] The provision of the Act referenced under s. 185 that applies to this complaint is s. 187, which provides as follows:

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.

 

[92] That provision was enacted to hold employee organizations to a duty of fair representation, a duty that according to the complainant, the respondent did not fulfil.

[93] The respondent’s conduct, according to the complainant, amounted to a breach of its duty of fair representation, for which she requests financial compensation.

B. Arguments

1. For the complainant

[94] In her closing submissions, Ms. Tyler thanked the Board for its accommodation of her needs related to her participation at the hearing.

[95] Ms. Tyler said that the evidence showed that she was a mere annoyance to the union. Its lack of attention to her made her feel like she was not worthy of assistance.

[96] Ms. Tyler pointed to the fact that none of the three witnesses that the union called to testify could produce notes from their many interactions with her and the employer to confirm the details of those discussions. She also noted that each witness pointed to the other two to suggest that they had been responsible for directing her file.

[97] Ms. Tyler noted that she waited many weeks for a reply from Ms. Montour to a voicemail or email, despite Ms. Montour’s testimony that at that time, she received at least one email each day from Ms. Tyler.

[98] Ms. Tyler resorted to registered mail more than once in the hope of a response from her union representatives.

[99] Ms. Tyler also noted that when she was ill and away from work in the spring of 2015, Ms. Montour assured her that she had been in contact with the employer and that Ms. Tyler should not worry, as all was well.

[100] To support her case, Ms. Tyler relied upon the union’s training guide from a course it offered in 2017 on how to handle grievances.

[101] The course material notes (at page 124) that the duty of fair representation is owed if the matter at issue arose at the time the person was a member (of PSAC).

[102] The next page of the course material states this:

Unions have been held to a higher standard of care in discharging DFR [duty of fair representation] obligations when human rights principles are at issue. This includes the duty to accommodate. It has been established that a union must provide accommodations within the grievance and arbitration process. This may mean exercising greater sensitivity than would normally be necessary, being more proactive or attentive than usual, or taking an extra measure of care or assertiveness. It may also mean taking different approaches to advocating on the member’s behalf or in the processing of a grievance. For example, in the case of a person with a psychiatric disability … a union would need to provide more generous time limits for receipt of documents.

 

[103] Ms. Tyler argued convincingly that the union training manual spoke to her exact circumstances and that she deserved that standard of care as was set out in the union manual.

[104] Ms. Tyler presented a well-researched and relevant set of jurisprudence addressing the duty owed her and cases on point supporting her assertion that the union fell short of its duty of fair representation to her.

[105] The union maintained that Ms. Tyler was a determinate employee experiencing performance problems and implied that in its view, the outcome was natural when her employer chose not to renew her employment term, despite Ms. Tyler testifying testifying that her office was busy and that her colleagues were extended.

[106] Ms. Tyler presented convincing Board jurisprudence to rebut the union’s submission that her term was allowed to expire and that there was no recourse.

[107] Ms. Tyler cited Medeiros v. Treasury Board (Department of Foreign Affairs and International Trade), 2012 PSLRB 104, which found as follows:

…

35 The evidence clearly shows that the grievor was a term employee. His term expired on May 10, 2010. Those two facts are not in dispute. There was no argument from the grievor that the employer’s decision was disciplinary or that he was terminated under paragraph 12(1)(d) of the Financial Administration Act, R.S.C. 1985, c. F-11. On that basis, I would normally have no jurisdiction to hear the first grievance, which challenged the employer’s decision to not renew the grievor’s term contract. That is consistent with Dansereau and Belmar. However, I have jurisdiction to consider the grievances on the basis of the argument that the decision not to renew the grievor’s term was made in bad faith and was discriminatory.

…

37 There is nothing violative of the collective agreement in the employer informally telling the union what it would do (that the criteria would be attendance and performance), then changing its position at a meeting (“last come, first out”) and finally doing something else (using the date of term renewal) when it came time to act. However, I find that that was poor labour relations and human resource management. The employer would benefit from clarifying its position on the criteria it will use for workforce reduction and by sharing it with the union local. In addition, the employer should reflect on the potential discriminatory impact of using attendance as a criterion to lay off employees or to not renew term contracts.

…

[Emphasis added]

 

[108] I take notice of the fact that the Board has relied twice upon Medeiros to take jurisdiction over a grievance filed by a term employee whose employment was not renewed and who claimed that discrimination or bad faith had been involved (see Togola v. Treasury Board (Department of Employment and Social Development), 2014 PSLRB 1, and Dionne v. Canada Revenue Agency, 2021 FPSLREB 39).

[109] In each case, Adjudicator Gobeil confirmed the Board’s jurisdiction to hear the grievance. Dionne considered circumstances involving a CRA employee very similar to those presented in the matter before me. Neither case was found to have had presented sufficient evidence upon which discrimination or bad faith could be found.

[110] However, the cases stand as affirmations of Ms. Tyler’s desperate pleas to the union in the summer and fall of 2015 to grieve that her employment term was allowed to expire on the grounds of that the expiration was tainted by discrimination as she had been ill and away from work.

[111] And to add emphasis to her already convincing submissions on this point, Ms. Tyler noted in argument the passage in Medeiros that cautioned the employer of the risk of the discriminatory impacts of using attendance as a criteria to determine if an employment term may extended.

[112] On the attendance matter, Ms. Tyler noted that her performance improvement plan was primarily focused on her attendance challenges as she had a gravely ill, dependent family member to care for and later became ill herself. She also noted that the performance evaluation that the employer prepared at that time was successfully grieved and that it resulted in her receiving an evaluation that would not negatively impact her employment with the CRA.

[113] A foundational piece of Ms. Tyler’s case was her uncontested submission that she suffered a mental illness during the events at issue. She presented a compelling argument that not only did her employer discriminate against her on this ground but also that the union had owed her a higher standard of representation due to her illness.

[114] Ms. Tyler cited Bingley v. Teamsters Local Union 91, 2004 CIRB 291, in support of this claim. Bingley notes previous Board findings that held as follows:

…

63 In duty of fair representation complaints, labour boards review how unions handled grievances filed by disabled employees who allege that their disabilities have not been accommodated. In reviewing these kinds of complaints, this Board, as it does in deciding other kinds of section 37 complaints, looks to see whether there was any evidence of bad faith, discrimination or arbitrariness by the union in the way it handled its members’ grievances (see Paulette Mowles, supra; Ingrid Bell, February 5, 2002 (CIRB LD 603); Bryan Sutton, November 23, 2001 (CIRB LD 545), upheld in Bryan Sutton, January 16, 2002 (CIRB LD 593); Wanda Johnson, November 30, 2000 (CIRB LD 366); and William S. Boyd et al., November 28, 1997 (LD 1762)).

64 Due to the sensitive and important issues associated with the accommodation of disabled workers in the workplace, labour boards also look to see whether unions have given disabled employees’ grievances greater scrutiny. The cases generally concur that the usual procedure applied to other members of the bargaining unit may be insufficient in representing a griever [sic] with a disability, mainly because the member’s situation will require a different approach. A cross-section of these cases illustrates this point.

…

103 In light of the examples given previously and the resources available to the union to resolve the issue of accommodating Ms. Bingley, the Board is of the view that the union did not apply the extra measure of assertiveness in dealing with the employer.…

…

109 Just as in K.H. v. Communications, Energy and Paperworkers Union, Local 1-S and Sasktel, supra, Mr. Burrell may have handled the grievance as he usually did in the normal operation of the grievance procedure, but that was not sufficient in this case.

110 It was Ms. Bingley who raised the issue of accommodation; yet even after having been put on notice, the union did not seriously pursue her grievance as one involving the duty to accommodate.…

…

115 Based on the criteria just reviewed, the Board finds that, in the circumstances of this case, the union’s actions in discrediting Ms. Bingley’s request for accommodation were discriminatory and in bad faith. The Board also finds that the union’s reliance on the third medical opinion to bolster its case, rather than actively pursuing accommodation, was not in furtherance of Ms. Bingley’s interests and fell short of the duty owed to her.…

…

118… The Board finds that had the union applied the extra care and extra assertiveness as set forth in the case law, it may have concluded that Ms. Bingley’s claim was not as unreasonable as it appeared at first glance.

…

 

[115] Relying upon Bingley, Ms. Tyler argued that given the well-known mental illness that she was suffering from in the spring of 2015, the union had owed her an enhanced standard of care, precisely as the previously noted training manual directs.

[116] Ms. Tyler also cited the Board’s decision in Jutras Otto v. Brossard, 2011 PSLRB 107, in which Adjudicator Bertrand stated:

…

60 As stated by the Board in Ouellet v. Luce St-Georges and Public Service Alliance of Canada, 2009 PSLRB 107, the burden of proof in a complaint alleging a violation of section 190 of the Act rests with the complainant.

…

61 In Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28, at paragraph 17, the Board commented as follows on the right to union representation and rejected the idea that it was akin to an absolute right:

[17] The respondent, as a bargaining agent, has the right to refuse to represent a member, and a complaint to the Board is not an appeal mechanism against such a refusal. The Board will not second-guess the bargaining agent’s decision. The Board’s role is to rule on the bargaining agent’s decision-making process and not on the merits of its decision.

As stated in Halfacree, the Board’s role is not to determine whether the respondents’ decision to represent the complainant was appropriate or correct, good or bad, or even with or without merit. Rather, its role is to determine whether the respondents acted in bad faith or in an arbitrary or discriminatory manner in the decision-making process associated with the representation issue.

62 The discretion afforded to bargaining agents and their representatives in determining whether to represent employees in the bargaining unit is broad, but it is not absolute. The scope of that discretion was set out in Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, at p. 527. In that decision, the Supreme Court of Canada described the principles underlying the duty of fair representation as follows:

…

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.

4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

…

63 In Savoury v. Canadian Merchant Service Guild, 2001 PSSRB 79, the Board wrote the following at paragraph 126:

[126]… When a consideration is made in regard to arbitration, it is recognized that the employee does not have an absolute right to arbitration for the union enjoys considerable discretion in the making of this decision, but that discretion has limits based on the severity and impact of the disciplinary action upon the employee.…

64 Duty of fair representation complaints and the proof required to sustain an allegation of bad faith or arbitrary action have been canvassed in a considerable number of Board decisions. In Ménard v. Public Service Alliance of Canada, 2010 PSLRB 95, the Board referred to some of the leading cases in the following manner:

…

[22] With respect to the term “arbitrary,” the Supreme Court wrote as follows at paragraph 50 of Noël v. Société d’énergie de la Baie James, 2001 SCC 39:

The concepts of arbitrary conduct and serious negligence, which are closely related, refer to the quality of the union representation. The inclusion of arbitrary conduct means that even where there is no intent to harm, the union may not process an employee’s complaint in a superficial or careless manner. It must investigate the complaint, review the relevant facts or seek whatever advice may be necessary…

…

[23] In International Longshore and Wharehouse [sic] Union, Ship and Dock Foremen, Local 514 v. Empire International Stevedores Ltd. et al., [2000] F.C.J. No. 1929 (C.A.) (QL), the Federal Court of Appeal stated that, with respect to the arbitrary nature of a decision, to prove a breach of the duty of fair representation, “… a member must satisfy the Board that the union’s investigation into the grievance was no more than cursory or perfunctory.”

…

70 I find major flaws with the respondents’ argument that responding to the performance issues was more important than pursuing the harassment grievance, which was destined to drag on beyond the complainant’s probationary period, and that, in any event, the complainant had provided little if any allegations in support of it. First, it confirms that the respondents failed to see any potential connection or relevance between the harassment and performance issues, even though both involved the complainant and her supervisor. Second, it fails to recognize the substantial amount of documents that the complainant provided to Mr. Kozubal in May 2009, which he did not deny receiving and reviewing, as well as the complainant’s attempts to provide boxes of documents received through access to information to the respondents in December 2009. Third, the respondents never informed the complainant that they needed additional information to fully analyze her chances of success; nor did they officially request additional information, other than the initial advice given to the complainant to prepare a list of allegations in July 2009. Fourth, even though the respondents stated that they wanted to concentrate on the performance issue to ensure that the complainant remained employed, once she was rejected on probation, they both quickly dropped the ball.

71 The respondents’ argument that nothing prevented the complainant from pursuing her harassment grievance on her own or from filing a grievance to contest her rejection on probation without the support of her bargaining agent, fails to take into account the fact that the approval of and representation by the bargaining agent was required under the Act to present the harassment grievance and that she had been led to believe that her harassment grievance would also address her rejection on probation. The respondents left the complainant in limbo for nine months, only to react some two months after the complaint was filed, and even then, without addressing the rejection on probation.

73 Both respondents testified that they never expressed their unwillingness to represent the complainant with either the harassment grievance or the rejection on probation. Nevertheless, the fact remains that they simply did not address those issues in a timely fashion, which allowed the harassment issue to become moot and the rejection on probation issue to be unchallenged and untimely. I was not provided with any evidence that demonstrated that the respondents analyzed or reviewed the issues in any way, shape or form. The facts suggest that they initially misled the complainant and that they failed to clarify whether her harassment grievance would or could cover the rejection on probation. They did not get back to her on either issue. They did not inform her that she could grieve the rejection on probation without their support. They did not communicate any rationale for not pursuing the harassment grievance and for not filing a separate grievance to contest the rejection on probation. There was no decision-making process. In summary, the respondents’ attitude toward the complainant was completely cavalier and irresponsible.

74 The respondents’ failure to provide some form of guidance to the complainant and failure to, at the very least, attempt to protect her interests in these matters amounted to no less than serious negligence, especially in light of the severity and impact of their inaction. They failed despite many opportunities to assist and despite the fact that the complainant had obviously placed her faith, trust and belief in both of them.

…

77 The respondents’ representative made several arguments about the merits of the complainant’s harassment grievance, or lack thereof. She similarly attacked the basis of a potential challenge to the complainant’s rejection on probation. However, the complainant did not ask the Board to review the bargaining agent’s exercise of its discretion to determine whether to represent her. As indicated above, no such decision-making process took place. She was led to believe that she was represented by the respondents. This is a case about negligence and about failing to take the required steps to analyze and examine the merits of an existing grievance and of a potential grievance. This case is about the respondents taking no steps whatsoever, notwithstanding the complainant’s numerous requests for help.

78 This is certainly not a case in which the respondents made a reasoned decision not to proceed further with a grievance after considering all the facts of the case, all the documentary evidence at their disposal and all the relevant law. Rather, this is a case in which the respondents dropped the ball and failed to take the necessary steps to carefully examine the evidence and to advise the complainant accordingly. Their cavalier approach toward the circumstances surrounding the complainant’s issues was obvious during their testimony. Although a bargaining agent is not required to forward every case to the grievance process, as it is normally given fairly wide latitude when deciding whether to take a matter forward, it is nonetheless required to seriously examine the merits of each matter before making such a determination, on a case-by-case basis.

79 While this is not a case in which the respondents acted in bad faith or with hostility toward the complainant, it is certainly a case about their negligent conduct, serious enough to be considered arbitrary. Therefore, it is apparent that the respondents failed in their duty to represent the complainant in both her harassment grievance and her rejection on probation. I simply cannot condone actions or inactions that are not based on considerations relevant to the workplace but that rather are based on a blind abdication of responsibility. The respondents’ inactions cannot be seen as mere miscommunication or incompetence. They amount to no less than careless actions that can be best characterized as serious negligence.

[Emphasis added]

 

[117] Ms. Tyler argued convincingly that the Board’s decision in Jutras Otto dealt with virtually the same problems that she presented in evidence, including a cursory, to the point of non-existent, union investigation into her repeated written claims that she had been put out of work in a discriminatory manner.

[118] That, together with her mental illness, makes out both arbitrary and discriminatory representation on the part of the union.

2. The respondent union

[119] Quite reasonably in argument, the respondent noted that the Board has consistently held that the bar for establishing arbitrary, discriminatory, or bad-faith conduct is purposely set quite high. (See Langlois v. Public Service Alliance of Canada, 2011 PSLRB 121 at para. 52.)

[120] Counsel also pointed to a Board decision with circumstances similar to those before me, in which the complainant admitted that she might have pestered her union too much and posited that as a result, it started to ignore her. In that case, the Board concluded that the lack of replies to the complainant’s many emails was not conclusive proof of queries being left unanswered. It also concluded that she might have had unrealistic expectations of her union. (See Cox v. Vezina, 2007 PSLRB 100 at paras. 128 to 131.)

[121] When it dismissed the complaint in Cox, the Board found that it had credible testimony from the union representatives as to their efforts on the complainant’s behalf. It also concluded that while the union in that case might not have fully or even adequately explained to the complainant all the reasons for not proceeding further, this was found to be a shortfall in communications and not bad faith or arbitrary conduct.

[122] Counsel also drew special attention to the following passages from Cox, as she submitted that the facts in it are very similar to the evidence before me:

…

142 The respondent testified that his approach, and that of the CAPE, was to take action on a problem based on factual evidence brought forward by a member using the appropriate redress procedures. He explained that he had repeatedly asked the complainant for specifics about the problems she was facing in her workplace. He had advised her how they might proceed together using the vehicle of a harassment complaint to address her problems. According to the respondent, the complainant did not offer him evidence that would allow him to pursue the harassment complaint option on her behalf, despite his frequent efforts to refocus her on this approach as the most appropriate recourse available. She may well have asked him a number of times to file grievances that specified mobbing as their subject, or that targeted various perpetrators of the alleged mobbing behaviour. The respondent indicated, however, that he maintained throughout an approach, consistent with the CAPE’s approach, which sought out a factual basis for her allegations and identified a redress response appropriate to the facts.

143 My reading of the case law suggests that a bargaining agent representative must be accorded considerable latitude in this type of situation. The representative is entitled not to automatically accept what his or her member may want him or her to do. The representative may determine the best approach to pursuing a problem brought to him or her, weighing all of the circumstances at hand, as long as he or she makes a good faith effort to investigate the facts and decides in a reasoned fashion on a viable course of action. In this case, I find that the respondent’s testimony was credible on this point. Whether or not he was correct in his determination that a harassment complaint was the appropriate way to proceed, presuming supportive information was provided by the complainant, is not relevant. The evidence convinces me, on balance, that he did conduct an evaluation of the available options based on what the complainant brought to him, and provided her with reasoned advice on a viable course of action, all without apparent bad faith or arbitrariness. Clearly, the complainant was very unhappy that the respondent did not “buy into” her concerns about mobbing. Clearly, too, she communicated her criticisms of him quite sharply to a number of the CAPE’s officers and representatives, sometimes without sharing her comments with him. Her unhappiness and criticisms, however, do not themselves prove the respondent acted arbitrarily or in bad faith.

[Emphasis added]

 

[123] While I agree completely with the reasoning behind Adjudicator Butler’s conclusions, which I noted with emphasis, I do not find the same evidence of the union in the matter before me making “… a good faith effort to investigate the facts and [deciding] in a reasoned fashion on a viable course of action.”

[124] None of the three witnesses who had some role in representing Ms. Tyler could provide any comment about his or her analysis of any possible human rights issues arising from Ms. Tyler’s employment term being allowed to expire while she was ill and away from work.

[125] At the conclusion of her closing argument, I invited counsel to correct me if it was not accurate for me to summarize the evidence surrounding the union’s treatment of a possible human rights issue as I have just noted in the preceding paragraph.

[126] Counsel said that that was indeed an accurate summary but that the broader issue of a possible human rights violation was virtually moot or merely an academic consideration as Ms. Tyler faced so many hurdles in trying to maintain her continuous employment.

[127] Counsel added that the mere allegation of a human rights violation was not enough for this complaint to clear the high bar of what is required to demonstrate a flaw in the duty of fair representation.

[128] Counsel also suggested that when Ms. Tyler was off work after her term expired, she was no longer a member of the bargaining unit.

[129] I note the compelling evidence tendered in Ms. Tyler’s email exhibits showing her correspondence with National President Benson, who gave clear assurances that the union would indeed help Ms. Tyler with this very issue.

[130] Given that clear assurance, I have no hesitation finding that the union took upon itself to represent her Ms. Tyler.

[131] Counsel also argued that the many examples of Ms. Tyler directing her union representatives not to talk to management made it difficult if not impossible for them to do anything more than they did, which she said was substantial, given the many problems brought to them for assistance.

[132] I do not accept that this absolved the union of its duty of fair representation. Despite Ms. Tyler’s evidence that at times, she instructed her union representatives not to communicate with management, they nevertheless continued to represent her, including at Ms. Montour’s important meeting with the Chief of Appeals in early August 2015.

[133] While those directives to the union might have made the representation more challenging, they fit easily within the added duty of care owed Ms. Tyler, as noted in Bingley.

[134] The respondent pointed to Mr. Esslinger’s emails to Ms. Tyler of September 28 and November 18, 2015, as evidence that he was responsive to her and as explaining what was being done, or in most cases, not being done, and why.

[135] Counsel submitted that both emails should reasonably be seen as the triggering event for when Ms. Tyler should have known of the basis of her complaint. That would mean that the complaint was made months past the 90-day deadline.

[136] These emails are cited elsewhere in this decision. I simply note that the first one seemed to reply to the essential element of this complaint by implying that the expiry of the complainant’s term employment in June was due to poor performance and her absence from work. They did not mention the human rights concerns that she raised repeatedly.

[137] In reply to Ms. Tyler’s early November request that her employment rights be restored, Mr. Esslinger’s second email stated that she was no longer an employee and that no grievance could or would be filed. He continued, stating that even if grievances could have been filed, the outcomes would not have met her expectations. He then addressed some of the many issues that Ms. Tyler had raised over the past few months. His letter did not mention any potential human rights issue.

[138] Ms. Tyler argued that the evidence before me of how the union treated her was strikingly similar to what is found in Jutras Otto was a violation of the duty to represent. I agree.

[139] In this case, as in Jutras Otto, the union “… dropped the ball and failed to … carefully examine the evidence and to advise the complainant accordingly”, to quote the eloquently succinct and accessible prose of Adjudicator Bertrand.

[140] Despite her illness, Ms. Tyler repeatedly informed the union clearly, cogently, and, at times, emphatically that she wanted grievances filed against her employer, that she believed that human rights violations had occurred, and that she faced dire circumstances as a result of her employer’s actions.

[141] No one less than the union’s national president herself replied to Ms. Tyler’s pleas, to assure her that the union would help her.

[142] Ms. Tyler submitted in closing that she relied upon the union to represent her and to help her through the weeks and months leading to and following the employer’s decision to allow her term to expire at the end of June 2015.

[143] Despite the assurance from the union’s national president, the evidence demonstrated a lack of certainty as to who had conduct of Ms. Tyler’s representation file. No evidence was presented at the hearing that the matter of a potential human rights violation was ever identified, considered, or investigated, even rudimentarily.

IV. Timeliness objection

[144] Counsel submitted that Ms. Tyler received clear communications from the union that should have put her on notice that it would do nothing further to challenge or grieve that her term employment was allowed to expire at the end of June 2015, which included her concerns about the employer committing a human rights violation.

[145] Counsel submitted that the communications, dated February 1, 2016, and November 18, 2015, respectively, rendered this complaint untimely as it was made weeks or months, respectively, after the 90-day deadline had expired.

[146] And further, if I accept Ms. Tyler’s submission that the triggering event was the March 8, 2016, email, which is the latest possible triggering event, even that resulting deadline was missed by three days, as the complaint was received on June 9, not June 6, which was the 90th day after the March 8 email was received.

[147] In support of the submission that Ms. Tyler understood well the union’s decision to decline her requests to grieve her June 2015 term expiring long before she admitted to it, the union pointed to her email of Oct 25, 2015, in which she wrote to Ms. Dufty, “Please be aware respectfully, I disagree with the Union’s position that my contract not being renewed was simply ‘end of contract’.”

[148] In her reply to the timeliness objection, Ms. Tyler submitted that she should be accommodated such that she be held to the standard of what a reasonable person in her position (of being ill) could be expected to do.

[149] She said that it would be unfair to hold her to the standard of what would be expected of a practicing lawyer who might better understand the points of law related to the 90-day deadline and how those days are counted.

[150] Ms. Tyler also cited Board decisions that dealt with extension-of-time applications for filing grievances. Such applications are limited to grievances filed under a collective agreement. They are treated separately and quite differently than is a duty-of-fair-representation complaint against a union. As such, they were of no help to Ms. Tyler.

A. The law

[151] Counsel objected to the complaint and requested that I dismiss it due to it being untimely. Section 190(2) of the Act provides the following with respect to a complaint made under 190(1):

… [It] 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.

 

[152] To apply that provision of the Act to the facts, I must first define the essential nature of the complaint and then decide when Ms. Tyler knew or ought to have known of the action or circumstances that gave rise to it. (See Boshra v. Canadian Association of Professional Employees, 2011 FCA 98 at paras. 39 to 51.)

[153] If Ms. Tyler filed her complaint with the Board over 90-days after that, then the Act bars the matter from succeeding. Those paragraphs of Boshra read as follows:

[39] The Board held that the 90-day time limit prescribed in subsection 190(2) for filing complaints of unfair labour practices under paragraph 190(1)(g) is mandatory, and that the Board has no discretion to extend it. Since Mr. Boshra filed his complaint on February 5, 2009, the limitation period started to run on November 7, 2008. Hence, his complaint was out of time if he knew or ought to have known of the action or circumstances giving rise to the complaint before that date.

…

[43] Given its characterization of the essential subject matter of the complaint, the Board found (at para. 36) in Mr Boshra’s own submissions ample evidence that he knew, as early as September or October 2008, of Ms Stevens’ reliance on sexual harassment in the grievance process. This would make the filing of the complaint more than a month outside the 90-day time limit.

[44] Determining when time started to run against Mr Boshra in this case involves questions of fact, and mixed fact and law. The standard of review of such questions is presumptively unreasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 53). The presumption is reinforced in this case by the presence of a strong privative clause in section 51 of the Act and the relevance of the Board’s extensive labour relations expertise to resolving the questions in dispute.

…

[49] Hence, the Board’s characterization of the subject-matter [sic] of the complaint cannot be said to be unreasonable. Given the judicial deference owed to the Board’s decision, it is not for the Court to decide if it would have characterized the essential subject matter of the complaint in the same way as the Board.

[Emphasis added]

 

[154] The respondent also cited Board decisions that examined the 90-day time limit and determined that it is mandatory and that as has been consistently noted in Board decisions, the Board has no statutory authority to extend it.

[155] Furthermore, the only possible discretion when interpreting s. 190(2) of the Act related to the 90-day time limit is determining on the evidence when the complainant knew or ought to have known of the circumstances that gave rise to the complaint. (See Esam v. Public Service Alliance Canada (Union of National Employees), 2014 PSLRB 90 at para. 32, which cites England v. Taylor, 2011 PSLRB 129.)

[156] As the word “day” is not defined under the Act, it takes its meaning from the Interpretation Act (R.S.C., 1985, c. I-21). Section 27(4) sets out, “Where a time is expressed to begin after or to be from a specified day, the time does not include that day.”

[157] That means that were January 1 found to be the date on which the complainant knew or ought to have known of the circumstances giving rise to the complaint, day 1 for counting purposes would be January 2, day 2 would be January 3, etc. Each calendar day would then be counted in sequence. Day 90 is the “last day” to file. However, if day 90 happens to fall on a holiday, the complaint may be made on the day next following that is not a “holiday”.

B. The essential nature of the complaint

[158] As the Federal Court of Appeal stated in Boshra, I must determine the essential nature of the complaint. In other words, what did the union do or fail to do that is the basis of what Ms. Tyler submitted as causing the alleged violation of the duty of fair representation?

[159] The evidence established that Ms. Tyler had many issues of concern with her employer, some contemporaneous, for which she sought union representation to assist her. Those issues, in 2015 and 2016, included the following:

- The alleged harassment from her managers that Ms. Tyler said she was suffering from due to her frequent use of leave to attend medical appointments and to care for a seriously ill, dependent family member.

- The related matter of the employer requiring a performance improvement plan that she was to sign.

- Her temporary assignment to the SP-04 position, which she found difficult to succeed in, around the same time she was absent for the reasons noted earlier.

- Her desire to return to her substantive SP-03 position and to work in a different office under different supervision, to resolve the alleged harassment issue.

- A performance evaluation carried out during these difficult times, which reflected poorly upon her and that she alleged was flawed (which was later proven, as it was grieved successfully).

- The depletion of her leave and her efforts to receive leave advances, all of which ultimately were exhausted. She was then forced to take leave without pay to care for a seriously ill, dependent family member.

- Her self-described and uncontested “mental breakdown”, which caused her to be away from work for several weeks, during which she began to try to prepare for a return to work with correspondence from her physician. At the same time, the employer requested a fitness-to-work evaluation, which she was opposed to.

- The employer’s decision to allow Ms. Tyler’s term employment to expire at the end of June 2015 while she was ill and on leave without pay. She claimed that she had no notice of and did not learn of the expiry until she sought to return to work at the end of July 2015.

- This pattern continued into and past the fall of 2015 as with the assistance of union representation, she succeeded at receiving periods of term employment (although not necessarily continuous periods, without interruptions).

- Also with the assistance of union representation, she succeeded at having a grievance accepted in part to correct her flawed performance evaluation from earlier in 2015, which she asserted played a role in the employer’s decision to not renew her term employment.

 

[160] While the evidence showed several issues continuing into 2016 and beyond, they are not relevant to the determination of the essential nature of this complaint for the purpose of determining when Ms. Tyler knew or ought to have known of the action or circumstances that gave rise to the complaint.

[161] I find the evidence clear and compelling that the essential nature of this complaint was the union’s actions or lack of them with respect to the employer’s decision to allow Ms. Tyler’s term employment to expire while she was ill and on leave.

[162] Counsel argued that the expiry of the complainant’s term employment at the end of June 2015 was of no consequence as the employer was under no obligation to extend it.

[163] Despite counsel’s submission, the expiry of Ms. Tyler’s term employment at the end of June 2015 and her allegation that it was due, at least in part, to discrimination on a prohibited ground, stand as the circumstances that gave rise to this complaint.

[164] As noted earlier in this decision, Ms. Tyler relied upon several emailed communications, which informed the union that the expiry of her term employment at the end of June 2015 put her livelihood on the line, that her actions were for the sake of her job, that the expiry involved a violation of the CHRA and the duty to accommodate, that the clock was ticking, and that she wanted a grievance filed to challenge the employer’s decision to allow her term to expire.

[165] Ms. Tyler again pointed to these issues in the March 8, 2016, email from Kent MacDonald, a labour relations officer from the UTE’s national headquarters, from which she said that she finally understood that the union would not pursue a remedy on her behalf.

[166] Therefore, I conclude upon this clear evidence that the essential nature of this complaint was the union’s action or lack of it related to Ms. Tyler’s employment term being allowed to expire in June 2015.

[167] My analysis of the evidence and issues throughout this decision is focused primarily upon this matter.

C. The filing of the complaint

[168] The Board’s file shows that Ms. Tyler dated the complaint form that gave rise to this matter on June 8, 2016, above her signature on the form. She also signed it a second time, just to the right of the date and signature that states June 10, 2016. Neither party pursued the second signature and later date at the hearing.

[169] The date stamp that the Board’s registry affixes in ink to all originating complaint forms upon their receipt states 9:25 a.m., June 16, 2016.

[170] However, the Board’s file also contains an email from a registry officer dated July 4, 2016, which states, “Thank you for your email requesting confirmation of receipt of your complaint. Your complaint was received on June 9, 2016 and I had sent you the attached letter on June 23, 2016” [emphasis added].

[171] In written submissions on the file sent to the Board in September 2016, the union stated:

…

… Without prejudice to any position the bargaining agent may take with respect to when the Complainant knew or ought to have known of the circumstances giving rise to this complaint, using March 8, 2016 as the latest date on which the Complainant could arguably be said to have known of the circumstances giving rise to the Complaint, the deadline to file would have been June 6, 2016.

…

 

[172] As stated in the union’s submission, the 90-day period did indeed conclude on June 6, 2016, if the triggering event was the March 8, 2016, email.

[173] I explained the gravity and substance of the motion to dismiss the complaint on the basis that it was untimely and discussed it with the parties, to ensure that Ms. Tyler understood it. Despite this, I had to specifically ask Ms. Tyler to turn her mind to this issue and requested that she make oral submissions on it before the end of the hearing.

[174] In her very brief submission on the matter, Ms. Tyler did indeed point to Mr. MacDonald’s March 8, 2016, email as the triggering event that started the 90-day filing deadline.

[175] In her closing submissions, Ms. Tyler explained that she sought to fax her complaint to the Board on the prescribed Form 16 late in the afternoon of June 8 but that she had computer problems that might have delayed the transmittal of her form until after the office had closed at 4:30 p.m. Eastern time.

[176] She submitted that this could explain why the Board did not officially receive her complaint until the next day, June 9. She said that the 90-day deadline began running on March 8 and that she made the complaint on June 8 and thus complied with the deadline.

[177] Although Ms. Tyler did not reference the Interpretation Act, her submission that she complied with the 90-day deadline on June 8 implies that she thought that instead, the 90-day deadline was a 3-month deadline.

[178] Such a position asserting compliance with June 8 could be made only if the deadline was three months, as would be allowed by s. 28 of the Interpretation Act, which reads as follows:

Calculation of a period of months after or before a specified day

28 Where there is a reference to a period of time consisting of a number of months after or before a specified day, the period is calculated by

(a) counting forward or backward from the specified day the number of months, without including the month in which that day falls;

(b) excluding the specified day; and

(c) including in the last month counted under paragraph (a) the day that has the same calendar number as the specified day or, if that month has no day with that number, the last day of that month.

[Emphasis in the original and added]

 

D. The triggering event that started the 90-day count

1. Mr. MacDonald’s March 8, 2016, email

[179] The Form 16 that Ms. Tyler submitted to the Board to make this complaint states that March 8, 2016, was the date on which she knew of the act, omission, or other matter that gave rise to her complaint.

[180] Ms. Tyler testified that Mr. MacDonald’s email of that date acknowledged for the first time what she had always understood went wrong, which allowed her to comprehend that the union would not help her with her problems.

[181] The email states:

…

I will be responding to your concerns based on what can be done today but will also address what should have happened in the past.

Firstly, the issue of not being considered for Rehire. The employer should have notified you back in June when your term ended, even though you were off on sick leave. You should have been given the opportunity to have Individual Feedback as to why you would not being considered for rehire. It is my understanding that the local union did intervene in August and you were brought back in a term under three months position, which met you were not eligible for Union membership and per the law; the Public Service Labour Relations Act, not considered an “employee” and as such not eligible to file grievances as that right is only afforded to employees. Thus there is nothing more to be done on this issue.

Secondly, you allege that the loss of employment was related to harassment and discrimination that occurred in the spring od 2015. As your term ended in June 2015, any grievances against the discrimination or harassment needed to be filed prior to you leaving the CRA as only employees of the CRA have the right to file grievances… If you do not have grievances filed then there is nothing that can be done now ….

Thirdly, The issue of a poor performance review was addressed by the local union with the employer in September of 2015, during a period in which you were not a union member and the local was successful to a minor degree to getting some changes to the review. Thus, nothing more can be done this issues.

Lastly, you were are a staffing pool ….

Thus, there is nothing I can help you with and we consider these matters closed.

…

[Sic throughout]

 

2. Mr. Esslinger’s February 1, 2016, email

[182] Ms. Tyler testified that she read Mr. Esslinger’s February 1, 2016, email and that she understood that it addressed her concerns over what she felt was repeated workplace harassment that she had suffered from her management.

[183] The email states as follows:

hello [sic] Karen, I have been really busy, to reiterate what I did say about a possible harassment complaint, as the timeframe for a grievance has long since passed you had to avail yourself of the employer’s internal harassment process. I believe what I did say is that I could review it after you’ve completed it quite honestly I don’t recall and I don’t believe I would ever state that I would assist you in a human rights complaint again that’s something that is filed by an individual and the Union doesn’t get involved.

 

[184] And in the union’s exhibit book, presumably the same email from Mr. Esslinger dated that day states, “Regarding your request that grievances immediately be filed with respect to individuals being brought back to work in the intake center [sic], as I have said to you previously currently you are not a member and as such no grievances can be filed on your behalf.”

V. Conclusion

[185] The jurisprudence is well established that unions are not held to a standard of perfection or even correctness in their representation efforts.

[186] However, the generous standard that unions enjoy does not give them license to ignore and avoid difficult cases with members who, due to reasons such as mental illness, require extra effort.

[187] To allow such poor union representation would amount to arbitrariness at best and discrimination on prohibited grounds at worst, both of which are contrary to the duty of fair representation.

[188] The voluminous amount of emails and the prolific number of calls made by Ms. Tyler did not relieve the union of its duty of fair representation.

[189] Ms. Tyler submitted that this required the union to make an extra effort and to take special care in its efforts to help and communicate with her. I agree.

[190] I also agree with Ms. Tyler’s submissions that the union was aware of her mental illness and that this required that it take greater care in its representation of and communications with her.

[191] Ms. Tyler’s union represented her in at least two workplace matters early in 2015 and also succeeded at having a grievance correct a flawed performance evaluation on October 15, 2015, such that there were no impediments on her performance record that would have caused her term to be left to expire, assuming that the workload and workforce were such that her services continued to be needed.

[192] However, while ill and away from work in June 2015, her employment term was allowed to expire, and she testified that she did not receive notice of it from the employer until well after the fact. Despite her frantic efforts to seek assistance from the union to have her term renewed, weeks and months passed during which several emails were exchanged, until months later when Ms. Tyler testified that she finally understood that the union would not pursue the matter of her term expiring in June 2015.

[193] The union submitted that it did everything reasonable and that in fact, it continued to communicate with and to try to help Ms. Tyler even after the CRA allowed her term of employment to expire a second time in 2015.

[194] With scant evidence to rely upon, the union argued that performance problems existed with Ms. Tyler at her work that impacted the employment term not being extended. It noted that through its efforts, she was able to secure another three-month term later the same year.

[195] If the matters of Ms. Tyler’s attendance and performance problems were in fact present in the mind of the union’s representatives if and when they looked into her June 2015 term employment not being renewed while she was ill and away from work, then the union should have summoned the courage to have that candid discussion with Ms. Tyler as soon as she was well enough to begin return-to-work discussions early in the summer of 2015.

[196] Counsel argued that the fact that Ms. Tyler’s term was to expire made moot the issue of pursuing recourse, thus making similarly moot a complaint of a failure to discharge the duty of fair representation on that matter. I disagree.

[197] The Board jurisprudence in Togola and Dionne as cited by Ms. Tyler show there was at least a chance for the matter to be successfully referred to the Board for adjudication if the CRA did not remedy the matter in its own hearing of such a grievance.

[198] Had evidence been presented to show that the union considered the issue of a potential human rights based grievance in the summer of 2015 and then determined that for some bona fide reason that such an effort was unadvisable, then counsel would have been on stronger ground to make that submission.

[199] However, the evidence was in fact to the contrary. None of the three witnesses who were part of the union’s representation of Ms. Tyler testified to having even considered pursuing such redress.

[200] More so, Mr. Esslinger admitted that in a situation in which someone is away from work, for example, on maternity leave, and has an employment term that is to expire, it might indeed be worth considering whether potential redress would be available on human rights grounds if the employer simply allowed that person’s term to expire.

[201] That is precisely what Ms. Tyler exhorted her union representatives to consider. Her emails that were tendered as exhibits repeatedly asked the union to pursue a potential human rights violation with the employer.

[202] I conclude that given Ms. Tyler’s belief that she was about to become indeterminate, the matter of her term being extended in June could not have been more important to her.

[203] I also conclude that her union representatives clearly knew or ought to have known the fact of how important extending her term was to Ms. Tyler.

[204] The evidence clearly established that the union failed to recognize a potential human rights violation as the term expired. It also failed to carry out even a rudimentary investigation into the circumstances surrounding Ms. Tyler’s expired term, which, on the evidence before me, might have been about to transition into full-time, permanent employment. These facts bring the complaint squarely within what the Board found to be a violation of the duty of fair representation in Jutras Otto.

[205] All of this occurred despite Ms. Tyler repeatedly writing to the union and alerting it to what she saw as a potential human rights violation by her employer, which had grave consequences for her career and well-being.

[206] Once Ms. Tyler began to beg the union to look into how and why her term was allowed to expire while she was ill and away from work, the union did not communicate with her effectively such that she could have understood her situation and possibly pursued other recourse.

[207] Ms. Tyler deserved better from the union.

[208] Even were I to accept Ms. Tyler’s submission on when the triggering event occurred and her explanation that the complaint was sent late in the day in a western Canadian time zone, the evidence clearly established that it was transmitted to the Board outside the statutory 90-day time limit.

[209] Sadly for Ms. Tyler, Parliament has not given the Board the discretion to vary the application of the time limit under s. 190(2) to make complaints. I am therefore unable to accept her request for an accommodation due to her illness to allow her complaint to be upheld despite being untimely.

[210] Therefore, I am precluded by s. 190(2) of the Act from allowing Ms. Tyler’s complaint.

[211] For all the above reasons, the Board makes the following order:

(The Order appears on the next page)

VI. Order

[212] The complaint is dismissed due to it being untimely.

September 15, 2021.

Bryan R. Gray,

a panel of the Federal Public Sector Labour Relations and Employment Board