FPSLREB Decisions
Decision Information
On March 31, 2022, the complainant made a complaint against the respondent, alleging that it breached its duty of fair representation by failing to refer to adjudication a grievance challenging the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police – the respondent asked the Board to dismiss the complaint based on these two objections: it was made outside the prescribed 90-day limit, and no arguable case could be proven that the duty of fair representation had been breached – pursuant to s. 190(2) of the Federal Public Sector Labour Relations Act, the Board’s only discretion with respect to the 90-day time limit to make a complaint is determining when the complainant knew or ought to have known of the matter giving rise to it – the complainant argued that the timeline should begin on March 25, 2022, as that was the date on which he learned that he could not proceed with his grievance without a bargaining agent’s support – the respondent argued that the timeline should begin on November 12, 2021, since on that date, it informed the complainant that it would not represent him – the Board found that the time limit began on the date on which the respondent informed the grievor that it would not represent him, which was November 12, 2021 – therefore, the complaint was made outside the prescribed 90-day limit – since the complaint was untimely, no arguable-case analysis was required to resolve it.
Complaint dismissed.
Decision Content
Date: 20220810
Citation: 2022 FPSLREB 69
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Labour Relations Act
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Between
Davoud Tohidy
Complainant
and
PUBLIC SERVICE ALLIANCE OF CANADA
Indexed as
Tohidy v. Public Service Alliance of Canada
Before: Amélie Lavictoire, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Himself
For the Respondent: Morgan Rowe, counsel
REASONS FOR DECISION
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I.
Complaint before the Board
[1] On March 31, 2022, Davoud Tohidy (“the complainant”) made a complaint with the Federal Public Sector Labour Relations and Employment Board (“the Board”) against his bargaining agent, the Public Service Alliance of Canada (“PSAC” or “the respondent”). The complainant alleged that the respondent had committed an unfair labour practice, notably by breaching its duty of fair representation when it failed to refer a grievance to adjudication on his behalf and to represent him in his efforts to challenge the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (“the Policy”).
[2] The respondent raised a preliminary objection, arguing that the complaint must be dismissed as it is untimely. According to the respondent, the complaint was made with the Board more than 90 days after the date on which the complainant was informed of the PSAC’s decision not to represent him. A statutory requirement set out at s. 190(2) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) establishes a mandatory 90-day filing deadline for complaints alleging a breach of a bargaining agent’s duty of fair representation.
[3] Alternatively, the respondent argued that the complaint should be dismissed on a preliminary basis and without an oral hearing because the complainant failed to demonstrate that his complaint discloses an arguable case that the respondent breached its duty.
[4] Section 22 of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) provides that the Board “... may decide any matter before it without holding an oral hearing.” The parties to this matter were informed that the Board was considering rendering a decision with respect the respondent’s objections based on written submissions and were provided with the opportunity to file additional written submissions. Both parties availed themselves of that opportunity.
[5] I am satisfied that I can decide the respondent’s preliminary objections on the written submissions that the parties filed.
[6] When a decision maker relies on written submissions to decide preliminary objections raised by a respondent, he or she should assume that the facts alleged by the complainant are true. Based solely on those factual allegations, the decision maker must assess whether the complainant has an arguable case that would justify an oral hearing. If an arguable case is not made, the complaint is dismissed. However, if the complainant makes an arguable case, the matter can proceed to a determination on the merits.
[7] As mentioned, the Act requires that complaints be made within 90 days of the alleged breach of the duty of fair representation. In my opinion, the 90-day period began to run the moment the complainant was informed of the respondent’s categorical decision not to represent him in his efforts to challenge the Policy. This complaint was made with the Board more than 90 days after that event. It is untimely and should be dismissed.
II.
Summary of the facts, as alleged
[8] The complainant is employed by Public Services and Procurement Canada.
[9] The PSAC is the certified bargaining agent for the complainant’s bargaining unit. The Government Services Union (“GSU”) is the component of the PSAC responsible for providing the complainant with direct assistance and representational services.
[10] On October 6, 2021, the Treasury Board adopted the Policy. Broadly speaking, it required employees in the core public administration, including the complainant, to submit an attestation as to their vaccination status by a specified date unless they were accommodated pursuant to the Canadian Human Rights Act (R.S.C., 1985, c. H-6). Employees unwilling to be fully vaccinated or to disclose their vaccination status would be advised not to report to work and would be placed on administrative leave without pay while they remained unvaccinated or continued to refuse to disclose their vaccination status.
[11] On November 10, 2021, the complainant wrote to the GSU, requesting that it represent him in filing an individual grievance challenging the Policy. He attached a copy of the grievance that he intended to present to his employer.
[12] On November 12, 2021, the complainant presented an individual grievance to his employer. He grieved the terms and conditions set out in the Policy. He argued that the Policy permitted his employer to change the terms and conditions of his employment, contrary to the collective agreement that applied to him, and represented an unreasonable exercise of management rights. The relevant collective agreement is between the PSAC and the Treasury Board for the Program and Administrative Services group, also known as the PA group, which expired on June 20, 2021 (“the collective agreement”).
[13] In the email accompanying his grievance, the complainant indicated that he had not received a response from the PSAC with respect to his grievance but that he was submitting his grievance to respect the deadline for filing one challenging the Policy.
[14] Later that same day, the complainant wrote to the GSU, indicating that he had presented his grievance to management since he did not hear from it before the November 12 deadline.
[15] Less than 40 minutes later, the complainant received a response from the GSU, stating that it would not support his grievance and referencing what would appear to be some previous exchanges between them. The GSU wrote the following: “The local will not be supporting your grievance as presented. As mentioned several times before, the only exceptions are personal religious beliefs, and medical reasons supported by the doctor.”
[16] The complainant replied to the GSU immediately, indicating that he was seeking support for an individual grievance, not for a request to be exempted from the Policy’s application. The documents and written submissions filed with the Board do not indicate any additional exchanges with the GSU about that grievance until March 2022.
[17] In a November 15, 2021, email to an employer representative, the complainant wrote this: “PSAC is not going to support me.” He attached the November 12, 2021, email that he had received from the GSU and confirmed his intention to proceed with his grievance without the PSAC’s involvement or support.
[18] The complainant pursued the grievance process on his own. Ultimately, his employer denied the grievance.
[19] In all, the complainant filed three grievances. One was a direct challenge to the Policy, while the others related to its application to his circumstances. He sought the PSAC’s representation for all his grievances. However, the only grievance of relevance to this complaint is the one filed on November 12, 2021, challenging the Policy itself.
[20] According to the respondent, twice between January 7, 2022, and March 2022, the complainant and GSU-PSAC National Capital Regional Vice President William Tait exchanged correspondence. The complainant asked questions about the actions that the PSAC was taking with respect to the Policy. Both times, Mr. Tait referred the complainant to the portions of the PSAC’s website that contained the most recent information with respect to its position on the Policy. That correspondence was not filed with the Board.
[21] Although representation had been denied in November 2021, on an unspecified date in March 2022, the complainant once again sought the respondent’s support, specifically to refer his grievance to the Board for adjudication.
[22] On March 25, 2022, Mr. Tait wrote to the complainant. He informed the complainant that the GSU would not support the complainant’s grievance. He added that the PSAC had identified those aspects of the Policy that it would challenge and that it was contesting them through two policy grievances. He wrote the following: “Since PSAC is already contesting the Policy and has made a determination on which aspect of the Policy they will challenge, GSU will not support the grievance as filed ...”.
[23] With respect to the nature of the complainant’s grievance, Mr. Tait indicated that although it alleged a violation of the managerial rights set out in the collective agreement, “... there [was] no argument to support [that] claim” because the collective agreement article on management rights “does not generate any positive rights.” Mr. Tait added that a bargaining agent’s support was not required to challenge a suspension without pay, since in that case, grievors may proceed on their own, either at adjudication or before the Federal Court.
[24] Later that same day, the complainant responded to Mr. Tait, stating that his grievance contained an allegation pertaining to a violation of the collective agreement and requesting an update on the GSU’s decision with respect to his grievance. He also sent Mr. Tait a copy of his employer’s final-level grievance decision.
[25] On March 28, 2022, Mr. Tait advised the complainant that after carrying out a review, the GSU maintained its decision not to support his grievance challenging the Policy. He indicated that the complainant could proceed to adjudication or to court on his own, at his expense.
[26] Over the following days, several email exchanges ensued between the complainant and Mr. Tait, mostly with respect to the complainant’s other grievances.
[27] On March 29, 2022, the complainant wrote to several GSU representatives, including Mr. Tait. He expressed his intention to make a complaint against the PSAC and requested once again that it represent him with respect to all his grievances, without conditions. The following day, he wrote to the same individuals and indicated that the PSAC would be “... responsible for any financial and emotional damage ...” caused to him “... as the result of the delay in procedure by not representing ...” him.
[28] On March 31, 2022, Mr. Tait wrote to the complainant with respect to his three grievances. He indicated that the GSU had reviewed his latest communications and had discussed the matter with its national office. With respect to the grievance of relevance to this complaint, Mr. Tait wrote the following:
...
For the grievance you filed in November 2021, PSAC made an analysis and decided not to challenge the Policy as a whole. The reasons were outlined in various communications and on their website. You decided to file a grievance on your own at that time and you just recently requested representation. Based on the legal analysis from PSAC, we told you we would not represent you.
...
[29] That same day, the complainant made this complaint.
III.
Summary of the arguments
A.
The complainant’s position
[30] The complainant submits that he became aware of the deadline to make his complaint on or about March 25, 2022, when he contacted the respondent to ask it to represent him and subsequently reviewed information on the Board’s website. He argues that neither the GSU nor the PSAC provided him with information pertaining to the deadline to make his complaint or the procedure to follow. According to him, the respondent’s duty of fair representation included providing him with that information when it chose not to support his grievance. He asks the Board to consider March 25, 2022, as the date on which time began to run for making his complaint. The complainant also asks that his grievance challenging the Policy be “moved to adjudication”, regardless of whether his complaint against the PSAC is dismissed. That grievance is not before the Board and I have no jurisdiction with respect to it.
[31] The complainant argues that when his grievance was filed, the GSU failed to advise him that he would not be entitled to refer it to adjudication without bargaining agent support. He also submits that the GSU subsequently provided him with incorrect information when it told him that he could proceed on his own to adjudication or before the Federal Court. Withholding that information and then providing erroneous information is indicative of bad faith. His grievance alleged a violation of the collective agreement. It raised issues related to the unreasonable exercise of management rights and to the Policy’s inconsistency with the collective agreement with respect to those rights. He should have been informed that an employee is not entitled to refer to adjudication a grievance relating to the interpretation or application of a collective agreement without bargaining agent support.
[32] With respect to the merits of his complaint, he submits that the respondent did not fulfil its duty of representation in good faith. It acted arbitrarily and in a discriminatory manner. He twice contacted the GSU and requested that it represent him with respect to his grievance challenging the Policy. The respondent’s decision not to represent him had no merit and could not be justified. The complainant also submits that the PSAC did not act in good faith by investing its financial resources in an attempt to have his complaint dismissed rather than representing him.
B.
The respondent’s position
[33] The respondent submits that the complaint is untimely and that it must be dismissed. The 90-day filing deadline set out at s. 190(2) of the Act is mandatory; see Esam v. Public Service Alliance of Canada (Union of National Employees), 2014 PSLRB 90, and Éthier v. Correctional Service of Canada, 2010 PSLRB 7. There is no discretion to extend it.
[34] The respondent submits that by the complainant’s admission, he first contacted the GSU in November 2021. That is when he communicated his intention to file a grievance challenging the Policy. The documents appended to his submissions show that by November 12, 2021, the GSU had advised him more than once that it would not support his grievance. By that date, he had been told that the respondent would not support a grievance directly challenging the Policy but that it would consider providing representation with respect to a human-rights accommodation request, were it applicable to his circumstances. The respondent submits that the position it took in this respect was consistent with its earlier assessment of the merits of such a direct challenge to the Policy. That assessment led to a decision that was communicated to all bargaining unit members, including the complainant, in October 2021.
[35] The 90-day deadline for making a duty-of-fair-representation complaint expired, at the latest, on February 13, 2022; that is, 90 days after the date on which the complainant was informed of the respondent’s decision. The complaint at issue was made with the Board on March 31, 2022. It is untimely and should be dismissed.
[36] Alternatively, the respondent argues that the complaint should be dismissed on a preliminary basis because the complainant failed to demonstrate that he has an arguable case.
[37] The burden of proof rested with the complainant, who had to present evidence sufficient to establish that the PSAC failed to meet its duty of fair representation; see Ouellet v. St-Georges, 2009 PSLRB 107.
[38] The respondent submits that it represented the complainant in a manner that was neither arbitrary or discriminatory nor in bad faith. It engaged in a thoughtful and meaningful assessment of what assistance it could provide him. It concluded that it would not provide representation on his direct challenge to the Policy.
[39] Initially, its position was based on the PSAC’s assessment that a direct challenge to the Policy was likely to be unsuccessful. Its assessment led it to conclude that the Policy would likely be seen as having a legitimate purpose and as striking a legitimate balance between workplace health-and-safety concerns and an intrusion on employee rights. Accordingly, the respondent decided that the most effective means of representing affected members would be on a case-by-case basis, considering the Policy’s application to their individual circumstances. That position, and the analysis supporting it, were formally communicated within the PSAC and to its membership in October 2021. It was also shared via a PSAC-wide email and was posted on the PSAC’s website.
[40] By March 2022, the PSAC still held the position that it would not support grievances presenting a direct challenge to the Policy and that it would assess all other representation requests on a case-by-case basis, based on the merits of each case. However, by then, it had twice reviewed its position with respect to the Policy in light of the evolving context and as the case law on COVID-19 vaccination policies evolved. It decided to pursue two policy grievances challenging certain aspects of the Policy.
[41] Even if it was wrong in its assessment of the merits of the complainant’s concerns, the respondent argues that its assessment cannot be said to have been arbitrary, discriminatory, or in bad faith. The complainant’s concerns were assessed on the merits, and a conclusion was reached. He was provided with explanations for the PSAC’s decision.
[42] A GSU representative provided the complainant with an overview of the decision-making process that led to the respondent’s decision with respect to the grievance. He was also informed that the PSAC had filed two policy grievances with respect to the Policy and that it would not proceed with individual grievances challenging the Policy directly due to the overlap with its policy grievances. The GSU also informed the complainant that his grievance did not engage a provision of the collective agreement, so he could pursue his grievance to adjudication or the Federal Court on his own.
[43] The respondent reviewed the complainant’s representation request anew, and on March 28, 2022, it confirmed that its decision not to represent him on his grievance remained unchanged but that he could proceed on his own as the grievance raised no collective agreement issues.
IV.
Analysis
[44] The statutory requirement set out at s. 190(2) of the Act establishes a 90-day filing deadline for complaints alleging a breach of a bargaining agent’s duty of fair representation. Sections 190(1) and (2) state the following:
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[45] The wording in s. 190(2) is mandatory. No provision of the Act allows the Board to extend the 90-day period; see Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78 at para. 55, and Paquette v. Public Service Alliance of Canada, 2018 FPSLREB 20. The Board’s only discretion when interpreting s. 190(2) with respect to the 90-day time limit is determining when the complainant knew or ought to have known of the matter giving rise to the complaint; see Esam, at para. 33, citing England v. Taylor, 2011 PSLRB 129. In the circumstances of this case, this assessment will be conducted based on the factual allegations assumed true.
[46] On November 12, 2021, the complainant was informed by the GSU that the PSAC would not represent him in his efforts to challenge the Policy. An email he sent three days later reveals that he had received the PSAC’s decision and understood that it had refused to represent him with respect to his grievance.
[47] The complainant acknowledged that he learned of the 90-day deadline to make a complaint on March 25, 2022. He has asked the Board to consider that date as the date on which time began to run for making his complaint. However, as mentioned, the 90-day time limit must be determined according to the date on which the complainant knew or ought to have known of the matter giving rise to his complaint.
[48] The exercise that I must conduct is mathematical. Was the complaint made with the Board more than 90 days beyond the date on which the complainant knew or ought to have known of the matter giving rise to his complaint?
[49] The time to calculate the 90-day filing deadline began to run on November 12, 2021, the date on which the complainant learned of the PSAC’s decision to refuse to represent him. His complaint was made on March 31, 2022, well beyond the 90-day period. It is untimely.
[50] What of the complainant’s March 2022 requests to the GSU that it refer his grievance to adjudication and represent him before the Board? Could that constitute the matter giving rise to his complaint, thus making it timely?
[51] I find that the respondent’s March 2022 refusal to represent the complainant and to refer his grievance to adjudication was not a new decision but rather a reiteration of a position that it took and that the GSU clearly communicated in November 2021.
[52] In November 2021, the GSU informed the complainant that it would not support his grievance challenging the Policy. That position was categorical. He understood it to be such because he later described the position taken by the respondent in similarly categorical terms: the PSAC would not support him with respect to his grievance.
[53] A few months later, after having pursued his grievance through the internal grievance process, and while he waited for his employer’s final decision with respect to that grievance, the complainant wrote to the GSU with respect to all his grievances. He sought representation from the PSAC with respect to all of them, even though he had already received decisions from the PSAC with respect to two of his grievances, which were his grievance challenging the Policy and another one.
[54] The email exchanges that followed between the complainant and Mr. Tait pertained to the PSAC’s position with respect to each of those grievances. However, the focus of the exchanges was primarily on the subject matter of the complainant’s two other grievances. Insofar as those email exchanges relate to the grievance challenging the Policy, I find that Mr. Tait’s statements as to the GSU’s position — on March 25, 28, and 30, 2022 — were merely reiterations of the PSAC’s position previously communicated directly to the complainant on November 12, 2021, and were compatible with the PSAC’s position with respect to direct challenges to the Policy as publicly communicated.
[55] Although, by March 2022 the respondent had decided to challenge certain aspects of the Policy, its decision to not support individual grievances directly challenging the Policy remained unchanged.
[56] I do not accept that the reiteration of a decision first expressed on November 12, 2021, created a new opportunity for making a duty-of-fair-representation complaint. The only relevant date for calculating the 90-day period is November 12, 2021. The complaint is untimely. Accordingly, it is unnecessary for me to consider whether the complaint discloses an arguable case.
[57] The complainant has asked that his grievance challenging the Policy be “moved to adjudication”, even if his complaint against the respondent is dismissed. That grievance is not before the Board and I have no jurisdiction with respect to it.
[58] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V.
Order
[59] The complaint is dismissed due to being untimely.
August 10, 2022.
Amélie Lavictoire,
a panel of the Federal Public Sector Labour Relations and Employment Board