Date: 20220330

File: 561-02-734

 

Citation: 2022 FPSLREB 24

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

 

MICHEL MONGEON

Complainant

 

and

 

PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA

 

Respondent

Indexed as

Mongeon v. Professional Institute of the Public Service of Canada

In the matter of a complaint made under section 190 of the Federal Public Sector Labour Relations Act

Before: Chantal Homier-Nehmé, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Himself and Pierre Mongeon

For the Respondent: Martin Ranger, counsel

Heard at Ottawa, Ontario,

November 13 to 15, 2018.

(Written submissions filed January 10 and 23 and February 19, 2019.)

[FPSLREB Translation]

REASONS FOR DECISION

FPSLREB TRANSLATION

I. Complaint before the Board

[1] Michel Mongeon (“the complainant”) made a complaint under s. 190 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) according to which the Professional Institute of the Public Service of Canada (“the respondent”) engaged in an unfair labour practice within the meaning of s. 187 of the Act (a failure of the bargaining agent’s duty of fair representation).

[2] The complainant alleges that the respondent refused to represent him in filing a grievance and/or making a complaint against the Canadian Intellectual Property Office, his employer, as part of his medical retirement due to a permanent disability that ensued from a road accident. Specifically, he maintains that the respondent failed to represent him with respect to losses of money that he was supposed to have received from Sun Life, the Government of Canada Pension Centre, the Régie de rentes du Québec (RRQ), and the Société de l’assurance automobile du Québec (SAAQ).

[3] The respondent argues that the complaint is out of time and outside the Federal Public Sector Labour Relations and Employment Board’s (“the Board”) jurisdiction. It rejects the allegation that it breached its duty of fair representation and instead submits that it fully carried out its duty.

[4] For the following reasons, I find that the Board does not have jurisdiction to hear the majority of the allegations set out in the complaint, which was made on December 20, 2014. The majority of the allegations against the respondent involve events that date from beyond the 90-day time limit set out in s. 190(2) of the Act.

[5] The only respondent action within the time limit set out in s. 190(2) of the Act is a letter dated October 23, 2014, and sent by the General Counsel, Legal Services, in which she responds to a reconsideration request and assesses the merits of his case. The evidence of the facts with respect to the letter’s writing and its contents does not allow me to find a violation of the Act.

[6] Although I have much empathy for the complainant’s personal difficulties, they did not result from the respondent’s actions or behaviours. As was indicated to him at the hearing, there is no proof of bad faith, discrimination, or arbitrary action that would allow me to find that the Act was violated. And there is no proof of collusion between the employer and the respondent.

II. Background

[7] The following facts are not in dispute. Before his leave without pay due to disability, the complainant worked at the Canadian Intellectual Property Office as an engineer in a position classified at the SG-PAT-6 group and level.

[8] The complainant was in an automobile accident in November 2000. According to the many medical certificates adduced in evidence, he still has aftereffects from it. From 2000 to 2006, he received a workplace accommodation on the recommendations of several physicians. On November 29, 2006, he suffered a work accident and was diagnosed with post-traumatic brain syndrome. He has been on a work stoppage since October 1, 2007, which was the start of his leave without pay.

[9] Between October 1, 2007, and October 2011, the complainant provided medical certificates to his employer. In October 2011, his employer asked him to decide from the options available under the Treasury Board’s Directive on Leave and Special Working Arrangements; i.e., return to work, resign, or take medical retirement. According to him, Health Canada recommended medical retirement due to a permanent disability retroactive to November 29, 2000.

[10] On July 16, 2014, the complainant informed his employer of his chosen option, which was medical retirement. On July 22, 2014, he sought advice from one of the respondent’s labour relations officers for drafting and filing several grievances against his employer. He identified a series of grievances that he wished to file against his employer’s actions, which were as follows:

[Translation]

- Grievance for the loss of my full pension funds of 70% of my salary due to an automobile accident, a loss caused by the employer, which is also responsible for insurance;

 

- Grievance worded, “if I die, the loss of the full survivor’s pension for my spouse, less than half of 70% of my salary. This situation was caused by the damage in point 1”;

 

- Grievance for illegal dismissal;

 

- Grievance alleging psychological harassment related to the policy on special-work-arrangement leave;

 

- Grievance alleging the loss of the opportunity to access the alternation program under the workforce adjustment policy;

 

- Grievance claiming financial compensation for the loss of employment for surplus persons under the workforce adjustment policy.

 

[11] On August 15, 2014, the respondent’s labour relations officer provided an analysis of the merits of each grievance that the complainant had asked the officer to file. In the letter, the officer referred him to the respondent’s internal policy entitled, Dispute Resolution Policy.

[12] That policy allowed the complainant to request that the respondent’s chief of regional operations reconsider the labour relations officer’s recommendations. The policy provides for an internal appeal mechanism so that a member may challenge a recommendation not to proceed with a file. The mechanism gives the member the opportunity to provide additional information that may change the recommendation not to proceed with a file.

[13] On August 26, 2014, the respondent’s chief of regional operations replied to the request to reconsider the recommendations of the respondent’s labour relations officer. She provided an analysis of the merits of each of the complainant’s proposed grievances and maintained the labour relations officer’s initial recommendation not to proceed with any of his suggested grievances.

[14] The complainant requested a reconsideration of the decision of the respondent’s chief of regional operations under the Dispute Resolution Policy. On October 23, 2014, the General Counsel, Legal Services, informed him of the decision of the respondent’s president, which confirmed the decision not to proceed with the grievances that he had requested.

III. Reasons

[15] The complainant named the respondent and referred his complaint to the Board only on December 20, 2014, under s. 190(1)(g) of the Act, which mentions an unfair labour practice within the meaning of s. 185 and provides 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.

 

[16] In the reference form, the complainant indicates the following:

[Translation]

Repeated refusal by my bargaining agent (PIPSC) to represent me in filing grievances and/or complaints against my employer, the federal government (CIPO). In addition, the verification required with you, sections 190(1) a, b, c, f, and g is probably at issue, given the nature of this case in which the bargaining agent abdicated its duty to represent one of its members.

 

[17] According to the reference form, the complainant became aware of the action, omission, or situation that gave rise to the complaint on October 23, 2014. That date matches the date on the General Counsel, Legal Services’, letter, in which she assesses the merits of his case and replies to his reconsideration request under the Dispute Resolution Policy.

[18] Paragraphs 190(1)(a), (b), (c), and (f) of the Act, to which the complainant refers, do not apply to the circumstances he describes. The allegations of a lack of fair representation, i.e., the “[translation] [r]epeated refusal by [his] bargaining agent ... to represent [him] in filing grievances and/or complaints against [his] employer ...” are set out in ss. 185 and 187 of the Act.

[19] Sections 185 and 187 of the Act define unfair labour practices as follows:

185 In this Division, unfair labour practice means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

...

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.

[Emphasis in the original]

 

[20] Section 190(2) of the Act provides as follows that a complaint alleging a breach of the duty of fair representation must be made within 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstance giving rise to the complaint:

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

 

[21] The time limit set out in s. 190(2) of the Act is strict and cannot be extended. A complaint under s. 190(1) must be made not later than 90 days after the date on which the complainant knew, or ought to have known, of the action or circumstances giving rise to it. No provision of the Act allows the Board to extend the 90-day period. This was made clear at paragraph 55 of Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78, which reads in part as follows:

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

 

[22] The complainant also accuses the employer of playing a key role in the events that led to his medical retirement. However, nowhere in his complaint or reference form does he name the employer; the complaint is only against his union. The allegations against the union and his employer refer to events that took place beyond the 90-day time limit. As was explained in the many case conferences, the Board cannot allow the complainant to name the employer as a respondent after several years have passed. All the more so since the allegations in the reference and the complaint specifically name the union as the respondent.

[23] Thus, it is first necessary to determine the moment when the complainant knew, or ought to have known, of the circumstances that gave rise to his complaint. Then, it must be determined whether he made his complaint in the 90 days after that date.

[24] The complainant was careful and attentive to provide very detailed and organized documents about what he has gone through since his automobile accident of November 29, 2000, and the start of his leave without pay for disability on October 1, 2007. I read all his allegations carefully and attentively reviewed his testimony and the evidence that the respondent adduced.

[25] The only respondent action within the time limit set out in s. 190(2) of the Act is the letter dated October 23, 2014, and sent by the General Counsel, Legal Services, in which she responds to a reconsideration request and assesses the merits of the complainant’s case. And this date corresponds to the date he put on the reference form to indicate the date on which he knew of the events that gave rise to making his complaint. Therefore, the only evidence I used to determine the complaint’s outcome is that of the General Counsel, Legal Services’, October 23, 2014, letter.

[26] In his written arguments, the complainant maintained that from the beginning of this dispute, the respondent has never acted in good faith or even sought to understand the connections between his situation and the employer’s responsibility as part an automobile accident that caused a loss of employment due to illness. The respondent acted arbitrarily without even adding, for a specific expertise, a resource skilled in the subject of this dispute.

[27] According to the complainant, such a lack of rigour shows that the respondent did not make an informed decision as to whether to proceed with a grievance. The respondent’s lack of methodology and rigorous work, along with its brief analysis, demonstrates bad faith and the arbitrariness of its position.

[28] In addition, the complainant alleges that the respondent’s conduct is discriminatory. He accuses it of endorsing the employer’s position binding it to Sun Life of Canada by contract, which has specific clauses for road-accident victims (SAAQ). The employer penalized and adjusted his pension based on the agreement between the RRQ and the Government of Canada Pension Centre, which reports to the employer, and the respondent did nothing to defend him. He argues that the respondent evaded its responsibilities under the pretext of describing his problem as private and by informing him that he should retain the services of private counsel. The respondent’s internal appeal mechanism did not seriously assess the merits of his case. No independent assessments were made. Therefore, the respondent’s internal appeal mechanism is not credible.

[29] For its part, the respondent argues that a union is not required to advance each of its members’ cases, provided that the decision not to proceed is made in good faith, without discrimination, and not arbitrarily. It contends that a union’s duty of fair representation does not include grievances or disputes that fall outside the scope of applying s. 209 of the Act. Not all the grievances that the complainant wanted to file entail a duty of fair representation, since they are neither about discipline nor about interpreting the collective agreement. He also wants to file a grievance alleging an unfair dismissal after he received the employer’s letter notifying him that his leave without pay would end. The respondent submits that it was not an unfair dismissal, as he chose medical retirement.

[30] As the former Board stated in Ouellet v. St-Georges, 2009 PSLRB 108 at para. 31, in a complaint made under s. 187 of the Act, the complainant bears the onus of proof. That onus requires the complainant to adduce evidence establishing that on a balance of probabilities, the respondent failed its duty of fair representation.

[31] For the following reasons, I find that the evidence that the complainant adduced does not show that the respondent acted arbitrarily, in bad faith, or with discrimination. It fulfilled its duty of fairness under the Act completely.

[32] The Board and its predecessors have often commented on unionized employees’ right to representation. In Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28 at para. 17, as follows, the former Board dismissed the idea that it is 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....

 

[33] The Board’s role is to determine whether the respondent acted in bad faith or in an arbitrary or discriminatory manner when representing the complainant or in its dealings with him.

[34] The complainant chose medical retirement after a prolonged absence due to illness, as confirmed in his letter to his employer of July 16, 2014. Health Canada recommended medical retirement due to his permanent disability, retroactive to November 29, 2000. However, the evidence showed that after informing his employer of his chosen option, he decided to seek assistance from the respondent. On July 22, 2014, he asked it to intervene through filing multiple grievances, including one alleging an illegal dismissal. He had already opted for medical retirement when he sought its help.

[35] The principles that the Supreme Court of Canada set out in Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509, are determinative in examining the respondent’s conduct. The Supreme Court held that in particular, when representing a complainant, the respondent must exercise its discretion in good faith, objectively and honestly. That decision must not be arbitrary, capricious, discriminatory, or wrongful. When considering the merits of an unfair-labour-practice complaint against a bargaining agent, the Board’s role is not to question the respondent’s decision on the merits and pursuit of the grievances that the complainant requested. The Board must examine the respondent’s conduct in its dealings with the complainant.

[36] The evidence adduced through two of the respondent’s witnesses, Allison Tomka, Labour Relations Officer, and Isabelle Roy, General Counsel, Legal Services, shows that their interactions with the complainant conformed to the duty of fair representation. On a balance of probabilities, he was unable to demonstrate any arbitrary, bad faith, or discriminatory actions in their dealings with him. On the contrary, Ms. Tomka testified very credibly about her thorough review of all the particular issues in the complainant’s file and advised him, without any arbitrary, bad faith, or discriminatory considerations, on the merits of each grievance that he wanted to file. She provided a detailed analysis of each grievance. She testified convincingly that when some of his issues required expert opinions, she consulted the respondent’s pension and benefits officer and the General Counsel, Legal Services. Ms. Roy testified clearly that she reviewed all the considerations in his file as part of his reconsideration request.

[37] With respect to the allegations that the respondent failed its representation with respect to the issues involving Sun Life’s disability benefits and pension, Ms. Roy testified that the Sun Life insurance contract includes specific provisions on deductions from disability benefits following other payments to the insured. The contract provides that Sun Life disability benefits will be deducted from other income for the loss of wages due to the same disability and from a pension for the same disability under a mandatory guarantee included in automobile insurance. The respondent has no impact on the complainant’s disability insurance coverage. It does not hold the insurance policy and has no control over the interactions of the several allowances at play for him.

[38] Although I have a great deal of empathy for the complainant and his distress over the results of the interactions between the several allowances he received as a result of the automobile accident he is a victim of and the medical retirement he had to take, I cannot find that it resulted from wrongful action by the respondent. In addition, I agree with the respondent that a union’s duty of fair representation does not include grievances or disputes that fall outside the Board’s jurisdiction under s. 209 of the Act.

[39] In Brown v. Union of Solicitor General Employees, 2013 PSLRB 48, a panel of the Board found that the duty of fair representation stated in s. 187 of the Act does not include matters beyond the scope of the Act or a relevant collective agreement. The Board’s authority flows from the Act, and some labour relations matters and disputes fall outside its jurisdiction. Although s. 187 does not specify the scope of the duty of fair representation, the fact that it appears in the “Labour Relations” part of the Act, in conjunction with the Act’s preamble, indicates that Parliament had no intention of granting the Board unlimited jurisdiction to examine every action of union organizations and bargaining agents. The Board has jurisdiction only over matters that fall within the parameters of the Act or a relevant collective agreement, which does not include the interactions between the different provincial road-accident allowances, Sun Life disability benefits, and the Canada Pension Plan.

[40] The majority of the allegations go beyond the 90 days set out in the Act and deal with issues outside the Board’s jurisdiction. For all these reasons, I find that the complainant did not adduce sufficient evidence to establish that on a balance of probabilities, the respondent did not meet its obligations under the Act and did not fulfil its duty of fair representation.

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

(The Order appears on the next page)

IV. Order

[42] The complaint is dismissed.

March 30, 2022.

FPSLREB Translation

Chantal Homier-Nehmé,

a panel of the Federal Public Sector

Labour Relations and Employment Board