Date: 20230103

File: 561-02-38837

 

Citation: 2023 FPSLREB 1

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

 

Dorin Horac

Complainant

 

and

 

Public Service Alliance of Canada

 

Respondent

Indexed as

Horac v. Public Service Alliance of Canada

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

Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Himself

For the Respondent: Zachary Rodgers, counsel

Heard by videoconference,

August 2 to 4 and September 20 and 21, 2022.

REASONS FOR DECISION

I. Complaint before the Board

[1] Dorin Horac (“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”), alleging a breach of s. 187 of the Act, which prohibits a bargaining agent and its representatives from acting in a discriminatory or arbitrary manner or in bad faith in the representation of the employees in the bargaining unit it represents.

[2] The complainant alleges that representatives of the Public Service Alliance of Canada (“the PSAC” or “the respondent”) disregarded the urgency of his situation when he asked for help resolving matters with his employer, Immigration, Refugees and Citizenship Canada (“IRCC” or “the employer”). The respondent is of the view that it helped him and that by doing so, it went beyond its obligations.

[3] For the reasons that follow, I find that the complainant did not establish that the respondent breached its duty of fair representation as defined in the Act at s. 187. Consequently, the complaint is dismissed.

II. Summary of the evidence

[4] The complainant worked at the IRCC’s call centre in Montréal, Quebec. He started working there as a casual in 2013, then became a term employee in 2014, with contract renewals. He was on leave for medical reasons in 2014 and 2017. He returned to work in 2017 on a progressive return-to-work schedule.

[5] In early January 2018, the complainant contacted Genadi Voinerchuk, a union representative at the Canada Employment and Immigration Union (CEIU), a component of the PSAC, about a staffing process at the call centre through which a number of employees with determinate contracts had become indeterminate employees (“the permanency process”). On January 10, 2018, Mr. Voinerchuk referred the issue to Fabienne Jean-François, then National Vice-president of the CEIU’s Quebec region. Ms. Jean-François was responsible for the local to which the complainant belonged, since the PSAC had placed it under trusteeship.

[6] The next day, Ms. Jean-François contacted the complainant by email to determine when he would be available to discuss his issues.

[7] The complainant replied a day later, giving his availability and mentioning the fact that he was progressively returning to work.

[8] Two months later, on March 14, 2018, the complainant wrote again to Ms. Jean-François and provided further information about the permanency process. He had written to his supervisor during the fall of 2017 about the process, as he believed that it had not been entirely fair or objective. He included his email exchanges with his supervisor in the email addressed to Ms. Jean-François. She answered the same day, offering him a phone conversation the following Sunday, March 18, 2018.

[9] During the phone call, Ms. Jean-François raised the issue of the complainant’s contracts and whether they were full- or part-time, which would have impacted whether he would be entitled to Sun Life disability benefits. His request for benefits had been refused. He testified that he had a hard time understanding what was said during the phone conversation because the phone line seemed defective. On March 21, 2018, he emailed Ms. Jean-François, asking for clear directions on how to approach the employer with respect to both the permanency process and the reduced-schedule contracts (which reflected the return-to-work schedule).

[10] On April 18, 2018, he again emailed Ms. Jean-François. The first line reads as follows: “Because I have not yet received your reply to my email or to my message that I have left on your voicemail, I decided to submit my requests to my supervisor only after he assured me that he will forward them to the right persons.”

[11] On April 22, 2018, the complainant requested a meeting with Ms. Jean-François, to discuss his case in detail. On April 29, in an email titled “Follow-up of our phone conversation” and addressed to Mr. Voinerchuk, Sun Life is mentioned for the first time. The email reads as follows:

…

Hello,

I’m following up on our phone conversation regarding the 2 questions I had:

- Will the union pay for my lawyer’s fees or provide me with free legal assistance if I would need to attack in court the disability claim refusal decision from Sunlife [sic] (as of now they didn’t take a decision on my appeal)

- What is the period that I have to attack in court the Sunlife’s [sic] refusal decision

Thank you.

…

 

[12] Mr. Voinerchuk answered on May 2, 2018. For the first question, he provided phone numbers to reach individuals within the PSAC specializing in Sun Life and Great-West Life claims refusals. For the second question, he stated that he was unsure, but he promised to provide a definitive answer in two days.

[13] On May 4, 2018, the complainant again emailed Ms. Jean-François, asking for a meeting to discuss his case. He mentioned that he had met with a labour relations lawyer.

[14] On May 15, 2018, the lawyer contacted Ms. Jean-François. She testified that he threatened to make a complaint against the respondent if she did not meet with the complainant. She immediately emailed the complainant, and a meeting was arranged for the next day. The complainant, Mr. Voinerchuk, and Ms. Jean-François attended it.

[15] The complainant recorded the meeting, unbeknownst to the other two participants. While registering its disapproval of secret recordings, the respondent nevertheless did not object to the introduction of the recording as evidence, and even paid for its transcription.

[16] I do not take lightly recording conversations without the express consent of all concerned, and had the respondent voiced an objection, I would probably not have admitted this evidence. However, given the respondent’s tacit approval, the transcript was admitted into evidence. It proved quite useful, as it provided objective information that supplemented the participants’ partial (after four years) recollections and compensated for one’s inherent bias when considering matters from one’s own perspective. I have no doubt that the vast majority of witnesses that swear to tell the truth do so, to the best of their abilities. Nevertheless, the passage of time and one’s interests invariably colour memories.

[17] My summary of the meeting is mainly drawn from the transcript.

[18] First, the complainant and Mr. Voinerchuk started discussing his case; Ms. Jean-François had not yet arrived. The complainant stated that he had first contacted the CEIU because of the permanency process, but while discussing with Ms. Jean-François, had realized that his part-time contracts were a problem because they precluded a disability top-up from Sun Life.

[19] They spoke of the reason for the complainant’s reduced work hours. He said that it was because of severe sleep apnea, which makes him tired and affects his concentration.

[20] Ms. Jean-François arrived as the complainant was explaining his Sun Life difficulties to Mr. Voinerchuk. She interrupted by saying in French, “[translation] Does it bother you if I stop this conversation? Ok, I just want us to go back to, go back to the purpose of this meeting.” The complainant immediately replied, “Oh, you are, uh?”

[21] She introduced herself, then started talking about the respective roles of union representatives (such as Mr. Voinerchuk) and national vice-presidents (NVP) (such as herself). According to her explanation, the union representative helps at the local level and supports members with their grievances and complaints. Her role is more political. She may support members with their grievances and complaints, at their request, but that is exceptional. However, given that the local of the complainant’s workplace was in trusteeship, as NVP, she was the de facto shop steward.

[22] By this point, the complainant appeared thoroughly confused, according to the transcript and as he repeated in his testimony. He did not understand Ms. Jean-François’s role. She simply answered that both she and Mr. Voinerchuk were there to help him.

[23] Ms. Jean-François then summarized the exchanges they had. The complainant first contacted the union because of the permanency process; then, in a conversation with him, Ms. Jean-François pointed out that his contracts should be full-time, with Sun Life covering the time he could not work, for medical reasons.

[24] Ms. Jean-François asked several questions to understand the complainant’s work status — when he became determinate, and if he had a copy of his successive contracts. He was unsure; he answered that sometimes, they were renewed by a simple email.

[25] They discussed the change from 30 hours to 37.5 hours that occurred for all employees on determinate status. They discussed the fact that it was unclear whether the complainant was considered part-time or full-time, which was information that they needed from the employer.

[26] They discussed the medical note that brought about the reduction of hours. Ms. Jean-François said that they needed a copy of the medical note. The complainant said that he did not have it since he had given the original to the employer. Both Ms. Jean-François and Mr. Voinerchuk seemed to think that it would be an easy matter to obtain a copy of the note that had to be in his file at the medical clinic. The complainant appeared doubtful but said that he would try to obtain it. Ms. Jean-François explained the importance of the medical note to understanding the employer’s action of modifying the contract.

[27] The complainant then spoke of a second doctor, treating him for another condition, who ordered the progressive return to work after a leave of absence. Ms. Jean-François stressed the need for a single medical note, to not confuse the employer and to ensure a clear message to communicate the complainant’s accommodation needs, while not jeopardizing his full-time status (to ensure his entitlement to Sun Life benefits).

[28] A long discussion ensued concerning the difference between the limitations prescribed by one doctor and the progressive return to work prescribed by the other. Both Mr. Voinerchuk and Ms. Jean-François tried to understand the complainant’s rather confusing explanations, with Ms. Jean-François leading the questioning. The goal, as the conversation showed, was to confirm the complainant’s full-time status, despite reduced work hours for accommodation purposes, and therefore his entitlement to Sun Life benefits.

[29] The complainant took two periods of leave, one in 2014 (ending in in January 2015), and the other in 2017. He applied for Employment Insurance benefits and obtained them in 2015. He applied for Sun Life benefits in 2017, which were denied. He did not apply for them in 2015 because he did not have the proper information. This information came out piecemeal, with contradictions.

[30] The conversation touched on Sun Life and on how difficult it was to obtain answers. However, following Mr. Voinerchuk’s advice, the complainant had managed to escalate his claim for a review of the refusal decision. The Sun Life situation was also confusing. The complainant understood that his disability claim had been denied because the wrong word had been used. This was discussed at length.

[31] Also discussed at length was whether the complainant received a form concerning Sun Life in 2015. Ms. Jean-François said that it might be impossible to pursue the matter but that in any event, more information was needed. Both she and Mr. Voinerchuk were doubtful that it would be possible to correct the 2015 situation; that is, the complainant not applying and therefore not receiving benefits from Sun Life, given the time that had elapsed.

[32] The conversation touched on many related issues, including the permanency process. The complainant was worried that his rights were not being fully respected; both Mr. Voinerchuk and Ms. Jean-François were engaged, responding to his questions as best they could, and thinking of different avenues for solutions, including informal discussions with the employer.

[33] They explained that because the permanency process was an external process that had occurred in the fall of 2016, it would be difficult to challenge through a complaint. There was no complaint process for the external process, and it was beyond the one-year mark for a complaint to the Canadian Human Rights Commission. The complainant insisted that he had heard of it only in early 2017.

[34] Ms. Jean-François and Mr. Voinerchuk agreed during the meeting to help the complainant sort out his situation. They also divided the tasks. Ms. Jean-François would try to obtain more information on the permanency process and on how the assessment was done and with what criteria. The complainant would obtain his medical notes. Mr. Voinerchuk would send the complainant information from the collective agreement about leave, would obtain more information about Sun Life, and would find out if the PSAC would pay for lawyers to go to court to dispute Sun Life’s decisions. The complainant asked that Mr. Voinerchuk and Ms. Jean-François commit to answering his emails within five business days; they agreed to.

[35] Being impatient for results, the complainant went ahead and requested the contracts from his supervisor. There was some back and forth with Ms. Jean-François on this issue. In the end, he obtained information about the permanency process assessment through an access-to-information request.

[36] Sun Life’s review of the complainant’s 2017 file bore fruit. On May 25, 2018, the complainant informed his supervisor and Ms. Jean-François that his claim had been accepted.

[37] The contract situation had still not been entirely resolved. On June 2, 2018, the complainant emailed Ms. Jean-François, requesting a meeting. She offered to call him, but he preferred an in-person meeting, given the poor quality of the sound on the call with her the previous March.

[38] On June 4, the complainant again emailed Ms. Jean-François, requesting that she transfer his file to someone else since she had not set up the requested meeting and had told him that she was very busy. He suggested that Mr. Voinerchuk be entirely responsible for his file. He asked for an answer within two days.

[39] On June 6, Ms. Jean-François answered the email, asking for further clarification about the contract status. She explained yet again that it was important for the contracts to be full-time, even if he was working fewer hours per week, so that eventually, he would be able to regain full-time hours, once his physician allowed it. On the same date, she offered an in-person meeting on June 15.

[40] It is worth quoting the email that the complainant sent in response as it summarizes the gist of his complaint before me:

…

Hi Fabienne,

I was hoping for a closer date for the meeting due to the stress that this situation is causing me. Please make all the necessary efforts to have the complete information from management regarding my case as I have contacted the union since January 9th and I still don’t have the info necessary for my case.

…

 

[41] The main information that was still missing was about the permanency process, as Ms. Jean-François noted in her June 6 email, as follows: “The only pending issue in your file is the staffing exercice [sic] done by management to select which employees would receive there [sic] permanency. I have not seen an answer from management on your request. I will follow up.”

[42] Sun Life’s retroactive positive answer caused some issues with the pay system, and the complainant contacted Ms. Jean-François on June 11 for help sorting it out. She answered the same day, stating that the pay problems should first be discussed with his supervisor, who had agreed to change the contract status and who could help solve the problem with the pay section.

[43] The complainant also recorded the June 15 meeting with Ms. Jean-François, and again, the transcript was entered into evidence at the hearing.

[44] Clearly, the meeting was uncomfortable. Ms. Jean-François tried to cancel it a half hour before it started because she still had received no update from management. The complainant was quite upset that the meeting would be cancelled on such short notice.

[45] The complainant was displeased with the pace of things. Ms. Jean-François explained her actions. At one point, she told him that she found his tone disrespectful. He protested, but she insisted that he could not challenge her perception.

[46] The complainant asked Ms. Jean-François if someone else could attend; she said, “No.”

[47] Ms. Jean-François testified that she perceived the complainant as being prejudiced against her because she is a Black woman. That testimony visibly upset him. I do not attribute any racial or gender prejudice to him. The fact is that their communication was not ideal; they both could have gained by listening more to the other. The complainant would have understood that Ms. Jean-François was well aware of his contract issues and that she was trying to help, and she would have answered his questions more patiently.

[48] Ms. Jean-François did say that she would follow up with management for the contracts and to find out more about the permanency process. The conversation ended with the complainant talking of litigation and representation and Ms. Jean-François saying that there was no need to think of litigation and lawyers. She stated, “We have all sorts of tools and resources that we can provide.”

[49] Ms. Jean-Francois sent an email the following Monday to say that she had followed up with management, as agreed. Subsequent emails showed that she was pursuing the issues (contracts and permanency) with management.

[50] On June 27, the complainant wrote to Ms. Jean-François and Mr. Voinerchuk. He stated that he had not received an answer to a June 19 email (in which he forwarded an email received in April 2015 that stated that he was not entitled to Sun Life benefits), despite the commitment to answer in five business days. He asked if the union would represent him for two grievances: one concerning the contracts and their financial impact, the other concerning the permanency process. Ms. Jean-François answered as follows the same day:

…

As June 25th is a holiday, 5 business days brings me to today, June 27th.

As far as these grievances, for insurance matters Genadi is the one who will guide you as mentioned during our meetings of May and June 8th. As he is currently on vacation, he will answer upon his return if this is okay with you. Please advise.

For the staffing, I have had email exchanges with Mrs Turmel during the week of June 18. I have also had a phone conversation with Amelie. I have a meeting with Mrs Turmel on Friday about different matters including your file. I expect to get an update then. We will advise following this meeting if that’s okay with you. Please advise.

…

 

[51] On July 5, Mr. Voinerchuk asked for further details as to the Sun Life concerns. The complainant answered that it was not Sun Life but advice he had received from a compensation advisor in 2015. He also asked again if the respondent would represent him with respect to the contract modifications and their financial impact.

[52] Mr. Voinerchuk and Ms. Jean-François did not agree with filing grievances. The employer and Sun Life were on their way to resolving the 2017 Sun Life situation. There was no recourse for the 2015 situation. Time had passed. As to the permanency process, it had been an external process, so no complaint was possible, and it was not a matter that could be grieved. Ms. Jean-François did state the same thing at the June 15 meeting as she had at the May 16 meeting, which was that it was possible to put some pressure on the employer to correct the situation and that she was working on it.

[53] Ms. Jean-François admitted that she did not respond to the email concerning the specific question about advice from a compensation advisor in 2015 that the complainant believed was incorrect.

[54] In her notes about these events, written at the time the complaint was made, Ms. Jean-François noted the conversations that she had had with management concerning both the permanency process and the status of the contract and pay. The pay situation was made more complicated by the general problems with the Phoenix pay system.

[55] On July 13, 2018, the complainant emailed Mr. Voinerchuk and Ms. Jean-François as follows: “I would like to have an update on the status of my requests as this situation becomes unacceptable after so many months of waiting for a resolution of my case.”

[56] The complainant made his complaint against the respondent on July 18, 2018.

[57] After the complainant made his complaint, he came across Ms. Jean-François at a union meeting held in mid-August 2018. She said that she had information for him, but he did not follow up.

[58] Emails show that Ms. Jean-François continued her discussions with the employer concerning the permanency process, for which very little information was available. After he made his complaint, the complainant also filed a grievance with the employer. In the end, he was granted an indeterminate position.

III. Summary of the arguments

A. For the complainant

[59] The complainant submits that the respondent’s representatives were not attentive to his needs. He had a disability that affected his memory and concentration, he was severely stressed because of his financial situation, and they added to his stress by not responding in a timely fashion. He contacted the CEIU in January 2018, yet it took until May 2018 for a meeting to be held with the respondent’s representatives, and it took place only because the lawyer he had retained had applied some pressure on the CEIU.

[60] His emails were not answered diligently, and the answers provided were unclear. In short, the respondent failed to turn its mind to the details of his case.

[61] The respondent’s representatives did not help him at all with the severe psychological and financial stress he was living through at the time.

[62] The help provided was minimal. The phone numbers that Mr. Voinerchuk provided to contact the PSAC concerning Sun Life did not work. Ms. Jean-François spoke of her political role but did not explain how she could help with individual files. She kept promising to “go higher”, but she just delayed.

[63] It seems that the representatives did not take into account the complainant’s disability, which caused him difficulty with concentrating and remembering. The questions they asked at the May 16 meeting demonstrated that they simply assumed that he was fully capable, even if Ms. Jean-François did note the memory problem.

[64] This whole process has taken four years to finally be adjudicated by the Federal Public Sector Labour Relations and Employment Board (“the Board”), which has led to disastrous mental, physical, and financial consequences.

[65] If the complaint is allowed, and if the Board finds that the respondent acted in an arbitrary and negligent manner, the complainant requests compensation for the suffering he endured as well as the reimbursement of his lawyer fees.

B. For the respondent

[66] The respondent submits that the complainant has not met the burden of proving that it acted in an arbitrary manner in its representation. The complaint never raised discrimination or bad faith, and therefore, those grounds are not at issue.

[67] The complainant had several issues with the employer, but the complaint concerns the respondent and its responsiveness. The stress caused by the permanency process or the refusal of the Sun Life claim cannot be blamed on the respondent.

[68] The complaint was made under s. 190 of the Act, the provision for complaints of unfair labour practices, including the breach of the duty of fair representation under s. 187 that is alleged in this case. Section 190 provides that a complaint must be made within 90 days of the action that gave rise to it. Therefore, in this case, the complaint goes back 90 days before the date it was made, which was July 18, 2018. The Board should only consider the respondent’s actions starting on April 19, 2018.

[69] The respondent points out that the complainant raised two issues with it: a staffing issue, and the salary top-up provided by Sun Life in disability cases. Those two issues were outside the scope of the collective agreement and the Act. Therefore, according to the respondent, it had no duty to represent the complainant on them. Despite that fact, the respondent’s representatives did engage and try to help the complainant.

[70] They explained why the respondent would not support a grievance but suggested that it might be possible to negotiate with the employer. The strategy was clearly laid out during the two meetings that the complainant recorded; yet he seemed to ignore or misinterpret the conversations.

[71] At the time the complaint was made, Ms. Jean-François was still discussing the complainant’s situation with the employer. The employer took its time, which caused a delay. Both issues, staffing and disability insurance, were complex and could not be resolved instantly. Events did not proceed at the pace that the complainant would have wanted; this does not mean that the respondent was not acting on his behalf.

IV. Reasons

[72] The complainant argues that the respondent failed its duty of fair representation by contravening s. 187 of the Act, which reads as follows:

 

[73] In interpreting s. 187 of the Act, the Board has consistently applied the principles first enunciated in Canadian Merchant Service Guild v. Gagnon, [1984] 1 SCR 509, to define the duty of representation. Those principles are the following:

…

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

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.

…

 

[74] I believe that the fifth principle in that quote is particularly applicable to this case. A bargaining agent has the duty to consider a case seriously and to analyze the issues thoroughly.

[75] In Ménard v. Public Service Alliance of Canada, 2010 PSLRB 95, drawing from decisions of the Supreme Court of Canada and the Federal Court of Appeal, the Board’s predecessor more specifically defined what arbitrary representation means, as follows:

…

[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; however, the employee is not entitled to the most thorough investigation possible.…

…

[23] In International Longshore and Warehouse 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.”

…

 

[76] As the Board stated in Paquette v. Public Service Alliance of Canada, 2018 FPSLREB 20 at para. 38, “Section 187 does not necessarily cover disappointments, disagreements, or unfulfilled expectations.” The Board continued as follows a little further in the same paragraph: “… the purpose of s. 187 is not to serve as a remedy for complainants who invoke a breach of the duty of representation as soon as they are dissatisfied with a decision or action by an employee organization; its purpose is to address serious wrongdoing.”

[77] The complainant cited Manella v. Public Service Alliance of Canada, 2022 FPSLREB 7, and Cowman v. Treasury Board (Department of Transport), 2021 FPSLREB 36.

[78] In Manella, the Board found that the bargaining agent had acted in an arbitrary manner by not taking the employee’s situation seriously. The Board stated its main finding as follows:

…

[69] I have reached the unfortunate conclusion that the union breached its duty by acting arbitrarily in the representation of the complainant. When the complainant brought his concerns forward to the union, it did not thoroughly study the case or take into account the significance of those concerns to the complainant and the rest of the TA group affected. Its representation was merely apparent, it went through the motions of being available to the members for discussion but took no action.

…

 

[79] In this case, I find that the respondent did consider the complainant’s case seriously and that it did analyze the relevant issues thoroughly. Mr. Voinerchuk sought information about Sun Life and did advise the complainant to appeal the refusal of benefits. Ms. Jean-François did follow up with management several times on the contract issue and on the permanency process. Finally, at both recorded meetings with the complainant, Mr. Voinerchuk (at the first meeting) and Ms. Jean-François (at both meetings) did explore the issues with the complainant and sought to understand them.

[80] In Cowman, the Board granted an extension of time to file a grievance concerning a termination, despite a four-year delay, notably because of the misleading advice that the employee had received from his bargaining agent. The facts of that case are too dissimilar to apply in this case. Moreover, the jurisprudence is clear that I am not to decide whether the respondent’s advice about the grievances was correct. Rather, I must determine whether the advice was given after the complainant’s situation and issues were seriously considered.

[81] The respondent raised a point in its argument to the effect that it did not owe any duty to the complainant to represent him for the two issues that concerned him: staffing and disability benefits. I agree that those two issues are outside the scope of the collective agreement and the Act.

[82] The respondent cited Ouellet v. Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, 2007 PSLRB 112, for the proposition that there is no duty to represent in staffing matters. In that case, the complainant wanted to challenge a decision of the Public Service Commission concerning forgery in a staffing process. The Board’s predecessor found that it did not involve the employer, and therefore, the bargaining agent’s duty of representation. The Board also found that since staffing came under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “PSEA”) and not the Act, there was no duty to represent.

[83] In Abeysuriya v. Professional Institute of the Public Service of Canada, 2015 PSLREB 26, following the reasoning in Brown v. Union of Solicitor General Employees, 2013 PSLRB 48, the Board’s predecessor found that since it had no jurisdiction under the PSEA to decide a labour relations issue, it could not hold a bargaining agent in breach of its duty of representation for a staffing matter.

[84] In Mongeon v. Professional Institute of the Public Service of Canada, 2022 FPSLREB 24, the complainant in that case argued that the bargaining agent had failed to properly represent him in his disputes with the different entities involved with providing his medical retirement benefits. The Board found that insurance matters, since they fell outside the scope of the collective agreement and the Act, also fell outside the bargaining agent’s duty of representation and the Board’s jurisdiction. The Board in that decision restates succinctly the conclusion in Brown in the following terms:

…

[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.

…

 

[85] I believe that the scope of the duty of representation remains to be defined. When a conflict arises between an employee and a third party, such as the Public Service Commission or an insurer, I agree with the bargaining agent that it has no duty of representation.

[86] However, when the conflict is between the employee and the employer, it seems to me that in a bargaining unit situation, the bargaining agent may have a certain role to play as an intermediary. As the Board’s predecessor stated in Ouellet v. St-Georges, 2009 PSLRB 107 at para. 28, “The duty of fair representation is the counterpart to the exclusive power of the bargaining agent to act as spokesperson for the members of the bargaining unit.” In this case, the contracts issue was squarely with the employer. It led the permanency process, which clearly lacked transparency. It was logical for the complainant to turn to his bargaining agent for help navigating those troubled waters.

[87] I need not decide the issue in this case, as even a conclusion that there is a duty of representation does not lead to a conclusion that the respondent has a duty to file a grievance, make a complaint, or take any other legal action on behalf of a member of the bargaining unit. Its duty, if it exists, remains as defined by the jurisprudence: to consider the case seriously, without discrimination, arbitrariness, or bad faith. In this case, I find that the respondent did carry out that duty.

[88] I understand the complainant’s distress during the time the events were unfolding, but I cannot hold the respondent to the high standard of care that he wishes to see imposed on it. Realistically, bargaining agent representatives have a great number of people and situations to attend to. I find that Mr. Voinerchuk and Ms. Jean-François did their best to respond to the complainant, but they could not be expected to reply immediately to his emails, as he seemed to want.

[89] I must say that one of the unfortunate occurrences in this case was how ill-matched the personalities were. From their testimonies, Mr. Voinerchuk struck me as an easy-going, caring, but unhurried person, while Ms. Jean-François was somewhat of a whirlwind. She was able to reconcile in her mind many divergent points of view and to see solutions that were not necessarily spelled out clearly, and she committed to resolving problems by seeking innovative solutions.

[90] The complainant, on the other hand, needed clear and specific answers. It obviously distressed him to be told that an answer might not be straightforward or that the employer’s or the respondent’s responses might not be entirely bound by written rules but rather based on many different factors, some apparent, some not. Whether it was a personality trait or linked to his health condition, he needed definite answers, quickly. He had a hard time accepting that the respondent’s representatives might not be able to respond when he wanted and with what he wished to hear.

[91] He stressed how painful this whole period had been for him. Again, I have no doubt that the stress was hard on him, especially in light of his medical conditions.

[92] That said, I note that the respondent’s representatives came through to help him with his problems. They met with him, tried to understand exactly the nature of his problems, and pursued the issues to help him resolve the Sun Life claim, the contracts situation, and the permanency process.

[93] Mr. Voinerchuk advised him to appeal Sun Life’s decision, and in the end, it reversed its decision and granted him benefits.

[94] It is clear from the documentary evidence that Ms. Jean-François followed up with management about the contracts. She also pursued with it the permanency process issue. In the end, the complainant did obtain the indeterminate position he was seeking. I find it probable that Ms. Jean-François’ efforts on his behalf paved the way at least in part for the employer to allow his grievance and give him the indeterminate position.

[95] Whatever influence the respondent might have had on the complainant’s ultimately favourable outcome, I find that it did what it could to help him, and it took his situation seriously and explored ways to help him. He put an abrupt end to those efforts by making his complaint.

[96] The complainant would have liked the respondent’s representatives to be more responsive to his need for order and clarity; however, failing to respond to that need does not amount to discriminatory, arbitrary, or bad faith representation. As I stated, there was a mismatch of personalities, as is wont to happen in human relationships. I cannot find on that ground that the respondent failed its duty of fair representation.

[97] The complainant came to the CEIU at first for the permanency process issue; ultimately, it was resolved in his favour.

[98] In the course of his discussions with Ms. Jean-François, the issue of Sun Life’s refusal and the full-time contract issue came up; both were resolved in his favour.

[99] It is true that responses were not provided at the speed he would have wished, but from the evidence, I find that the respondent was reasonably responsive. I also believe that its representatives played a positive role in resolving the complainant’s issues. I note in particular that the issue of the part-time or full-time contracts was first raised by Ms. Jean-François during her March 2018 conversation with the complainant. The issue that he had raised initially when seeking the respondent’s support was the permanency process.

[100] The complainant testified that he was in considerable distress during the time he interacted with the respondent medically, psychologically, and financially.

[101] The respondent’s representatives were not made aware of his financial difficulties at the time. According to the complainant, they should have inferred them. They should also have been more sensitive to the psychological consequences of his medical disorder, notably the anxiety and mental fog created by the condition.

[102] The respondent’s representatives could have been more sensitive to the complainant’s particular needs, especially his great need for clarity and order. However, this cannot be the standard by which to measure the respondent’s duty to fairly represent the members of the bargaining unit. That duty has been defined in the jurisprudence as considering seriously a member’s claim and acting without arbitrariness, bad faith, or discrimination. I believe that the respondent met its duty as defined.

[103] The respondent’s representatives made an effort to understand the complainant’s issues and certainly acted to help him resolve them. The fact that they disagreed with pursuing a grievance or complaint is not in itself arbitrary or negligent representation. They explained their reasoning to the complainant during both meetings, and their position was not unreasonable.

[104] I know that this decision will be very disappointing to the complainant, who obviously put a great deal of effort into presenting his case to the Board. I do not take lightly the distress that he lived through, but given the facts, I cannot fault the respondent for it.

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

(The Order appears on the next page)

V. Order

[106] The complaint is dismissed.

January 3, 2023.

Marie-Claire Perrault,

a panel of the Federal Public Sector

Labour Relations and Employment Board