FPSLREB Decisions
Decision Information
The complainant was employed by Elections Canada. An incident occurred, after which he was sent home. He was told that he would not be disciplined for the event, but the employer required a medical certificate confirming his fitness to work. It also gave him a “Letter of Expectations”, which ended by stating that if he did not fulfil the expectations in the letter, he would be disciplined, “up to dismissal.” The complainant argued that he was the victim of harassment and that the employer’s actions amounted to a disciplinary suspension. His bargaining agent refused to file a grievance on his behalf, as it claimed that the grievance would be out of time. The complainant made a duty-of-fair-representation complaint against his bargaining agent. The Board found that on the bargaining agent’s refusal to file a grievance, the complainant failed to make out an arguable case that the bargaining agent acted in way that was arbitrary, discriminatory, or in bad faith. However, it found that the bargaining agent failed to properly accommodate the complainant’s disabilities and that it failed to inquire into whether he required accommodation. The Board denied the bargaining agent’s motion to dismiss the complaint.
Motion denied.
Decision Content
Date: 20251017
File: 561-02-51726
Citation: 2025 FPSLREB 139
|
Labour Relations Act |
|
Between
Christian Moore
Complainant
and
Professional Institute of the Public Service of Canada
Indexed as
Moore v. Professional Institute of the Public Service of Canada
Before: Christopher Rootham, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Himself
For the Respondent: Colleen Bauman, counsel
Decided on the basis of written submissions,
filed April 29, May 23, July 18 and September 15 and 26, 2025.
REASONS FOR DECISION |
I. Overview
[1] This is a duty-of-fair-representation complaint. Christian Moore (“the complainant”) made this complaint against the Professional Institute of the Public Service of Canada (PIPSC), alleging that it breached its duty of fair representation toward him. PIPSC has requested that the Federal Public Sector Labour Relations and Employment Board (“the Board”) dismiss this complaint because it does not disclose an arguable case.
[2] I have concluded that the complainant has made out an arguable case. While the complainant has not made out an arguable case about PIPSC’s decision not to proceed with his proposed grievance, he has made out an arguable case that PIPSC breached the duty of fair representation in the manner in which it has been addressing his work-related issues. My reasons follow.
II. Arguable-case framework
[3] The arguable-case framework is well established at the Board, and the parties do not dispute the nature of that framework.
[4] In an arguable-case assessment, the Board treats the facts alleged by the complainant as true and then determines whether the complainant has made out an arguable case that the bargaining agent has breached its duty of fair representation. In other words, “… the complainant’s factual allegations must suggest that the respondent’s decisions, actions, or omissions could be considered arbitrary or discriminatory or as resulting from bad faith …” (from Gonzague v. Professional Institute of the Public Service of Canada, 2024 FPSLREB 38 at para. 61).
III. Background to the complaint
[5] To briefly describe the background to this complaint, the complainant was employed by Elections Canada, first as a contractor and then as an employee beginning on June 4, 2018. An incident occurred on June 28, 2018, and the complainant was sent home. On July 5, 2018, the employer told the complainant that he would not be disciplined for that incident, but he was required to provide a medical certificate confirming his fitness to work. At the same time, the employer gave the complainant a “Letter of Expectations”, which ended by stating that if he did not fulfil these expectations, he would be disciplined “up to dismissal.” The complainant signed the Letter of Expectations, obtained a medical certificate, and returned to work after being absent with pay for approximately 30 days.
[6] The complainant argues that he was the victim of harassment in June 2018 and that the employer’s actions amounted to a disciplinary suspension.
[7] The complainant left work on sick leave in June 2022. He has remained on sick leave and is in the process of medically retiring from the federal public service.
A. Complainant’s relationship with PIPSC
[8] The complainant has been dealing with PIPSC off and on for roughly six years. He first approached a PIPSC steward in April 2019. The complainant says that he provided some information to his steward at that time but that he did not hear from him again. The complainant contacted a labour relations officer at PIPSC in November 2022 about several issues. Shortly afterward, he raised the issue of harassment from 2018. There were more delays and gaps in time. Eventually, on September 25, 2024, the complainant filed a notice of an occurrence about the alleged harassment in 2018. According to the parties, that notice of an occurrence is still being investigated.
[9] The trigger for this complaint is that the complainant wants to grieve what he says was a disciplinary suspension from 2018 and grieve the harassment that he says occurred. PIPSC eventually decided that it would not support that grievance. PIPSC provided its reasons to the complainant, in essence concluding that any grievance filed would be well out of time and would not have any practical benefit to him.
B. PIPSC has met its duty of fair representation, despite not pursuing the grievance
[10] In its submissions, PIPSC has focused on its decision not to represent the complainant and file a grievance on his behalf. PIPSC submits that the duty of fair representation requires that it look at the circumstances of a grievance, consider its merits, and make a reasoned decision whether to pursue the case (as set out in Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28 at para. 23).
[11] I agree that PIPSC has clearly met that obligation. It provided reasons for its decision not to pursue the complainant’s grievance, and those reasons show that it turned its mind to the merits of his grievance. It is not the Board’s role to sit on appeal from PIPSC’s decision. However, I note that if I were to consider the merits of PIPSC’s decision, I would agree with it. I share its concern that there is no practical benefit to the complainant that could come from his proposed grievance and that any grievance would be years out of time (and was months out of time when the complainant first contacted PIPSC about it).
C. There is an arguable case that PIPSC has not met its duty of fair representation in the manner of its representation
[12] However, the duty of fair representation is not limited to the decision of a bargaining agent about whether to proceed with a case. The duty of fair representation prohibits a bargaining agent from acting in a way that is arbitrary, discriminatory, or in bad faith. That includes the process that it follows and the manner in which it provides representation.
[13] In addition to being unhappy about PIPSC’s decision not to file a grievance, the complainant also complains about the manner in which PIPSC has dealt with his case. He alleges that PIPSC delayed responding to him during several periods and let his case languish. He also alleges that PIPSC failed to properly accommodate his disabilities or failed to inquire into whether he required accommodation. For example, he alleges that when he received his “options” letter from the employer about whether he would return to work, medically retire, or be dismissed, he needed more time to assess it because of his medical condition; however, when he raised that issue with PIPSC, it did not recognize that he was asking for accommodation and did not adequately consider that issue.
[14] The Board has discussed this element of the duty of fair representation in Bristman v. Professional Association of Foreign Service Officers, 2024 FPSLREB 39. In that case, the Board concluded that a complainant had shown an arguable case because of the manner in which his bargaining agent dealt with his case. The Board stated as follows, at paragraph 61:
[61] Contrary to what PAFSO asserts, the essence of the complaint is not that the complainant disagrees with its strategy or decision on how to best assist him with his pay issues. The complaint concerns how the respondents handled the complainant’s request for assistance.…
[15] Unlike in Bristman, the complainant complains about the decision not to file a grievance — that is the bulk of his complaint. However, he also complains about the way that PIPSC has handled his requests for assistance. He has presented facts that if proven, are capable of showing that PIPSC dealt with his situation in a way that was arbitrary or discriminatory.
[16] Finally, PIPSC argues that large parts of the complaint are untimely because they are about events that occurred more than 90 days before the complainant made this complaint. As the Board stated recently in Babb v. Public Service Alliance of Canada, 2025 FPSLREB 10 at para. 37:
[37] For the complainant’s allegations to be considered timely, s. 190(2) of the Act clearly establishes that only the facts that happened in the 90 days before it was made can be part of it. However, the Board may consider facts that preceded those 90 days in its analysis of the complaint’s context ….
[17] Many of the events that the complainant describes occurred more than 90 days before the complaint was made. However, some of the process-based faults identified by the complainant occurred within that 90-day window. For example, PIPSC’s treatment of his requests dealing with the options letter occurred on or after November 25, 2024, which is within 90 days of the complaint being made on February 15, 2025.
[18] Therefore, I have decided that the complaint should proceed because it discloses an arguable case.
D. Limited scope of an arguable-case decision
[19] I want to caution the parties that this is decision is about the arguable-case standard. There is a long distance between an arguable case and a proven case. PIPSC may have evidence that it was representing the complainant in a way that was responsible, diligent, and with due consideration of his disabilities. For example, the parties referred to assistance that PIPSC has provided to the complainant about his disability insurance, medical retirement, and possible workers’ compensation claims. The Board may decide to assess PIPSC’s representation considering the full suite of services PIPSC is providing instead of focussing solely on the grievance it decided not to support. Additionally, many of the grounds of this complaint are about events that occurred more than 90 days before February 15, 2025; when the Board decides this complaint, it may conclude that those events are not relevant to the complaint.
[20] For all the above reasons, the Board makes the following order:
(The Order appears on the next page)
IV. Order
[21] The motion to dismiss is denied.
[22] The complaint will be scheduled to be heard.
Christopher Rootham,
a panel of the Federal Public Sector
Labour Relations and Employment Board