3146-00-U Michelle Ann Rondeau, Applicant v. Ontario Public Service Employees’ Union, Responding Party v. The Crown in Right of Ontario (Ministry of Correctional Services), Intervenor.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; April 18, 2001
This is a complaint pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). The applicant alleges that the Ontario Public Service Employees Union (OPSEU) has breached its duty of fair representation.
The application fills 19 pages and documents concerns that date back to March 23, 1993 and perhaps earlier. At the risk of oversimplifying the issues, the applicant’s concerns started when what she considered a letter defamatory to her was read out at a union meeting in March 1993. One of the persons the applicant holds responsible for defaming her later became her supervisor and the applicant alleges that the supervisor harassed her and created a poisoned work environment. The applicant left the workplace in 1995, at first on a short-term sick leave. The applicant did not return to the workplace until June 1999. I understand that the applicant was employed outside the country for a substantial part of that time.
It appears to be undisputed that the applicant pursued informal solutions to the alleged harassment, both with the employer and the union. An investigation of the complaint was undertaken by the employer in 1994. The applicant agrees that the investigation occurred, but does not believe that the report sets out the investigator’s true findings. Over the next years, the applicant filed a complaint pursuant to the Human Rights Code, which was not pursued by the Commission on the basis that the circumstances complained of, did not fall within its jurisdiction. The applicant also brought a civil action against her supervisor, but again, got no remedy.
The applicant alleges that she finally filed a grievance with respect to the alleged defamation and harassment in November of 1997. Ultimately in January 1998, OPSEU filed a grievance on behalf of the applicant which was advanced to arbitration.
After unsuccessful mediation, the grievance proceeded to hearing in September 2000. The employer brought, not surprisingly, a preliminary motion that the arbitrator ought not to consider a grievance brought in 1998 that complained of events that occurred, and the grievor was aware of, at the latest, in October of 1995.
The arbitrator agreed with the employer’s preliminary argument. The arbitrator concluded that the applicant knew of her complaint by the time she left the workplace in October 1995, and, in fact, had tried to resolve it before leaving. The arbitrator also concluded that the applicant was aware of the grievance procedures in the collective agreement, and made a determination to pursue other avenues, from informal to formal, because she believed they would be more successful. The arbitrator concluded that since the grievance was filed 26 months after the last events about which the applicant complained, and because there was no good reason to extend the deadline in the collective agreement for filing a grievance, the grievance should be dismissed as untimely.
In this complaint to the Board, the applicant alleges that OPSEU has breached its duty of fair representation in a variety of ways, which I will summarize:
The union did not provide adequate representation to her in the arbitration of her grievance. In support of this complaint, the applicant sets out a series of “errors” in the arbitrator’s decision, and asks the Board to conclude that the union must have dealt with her grievance in a “...superficial, perfunctory, and arbitrary manner”. The applicant further alleges that OPSEU’s presenter at the arbitration hearing did not consider and put forward all of the documents, arguments and cases the applicant wanted. The applicant also questions the “divided loyalties” of OPSEU’s representative. In other words, the applicant asserts that OPSEU did not really want to “win” the timeliness argument.
The applicant alleges that her Charter rights have been violated, but does not link this to OPSEU’s representation of her, except to say that if the union had better represented her, her integrity and security of person would not have been violated.
The applicant holds the union responsible for not intervening at the earliest stages of her harassment complaint, thus causing this problem to spiral out of control and cause the applicant years of anguish, loss of money, etc.
In its response OPSEU has asked the Board to dismiss aspects of the complaint on the basis of delay, and failure to make out a prima facie case. The union has raised some very good arguments, and later in the decision, I will direct the applicant to address them.
But the Board is concerned about a more fundamental problem that has not been raised by either the union or the employer. The Board is not required to inquire into each and every complaint that is made to it. The Board regularly exercise its discretion and does not inquire into complaints where there is no labour relations purpose in doing so. The Board does not exist to right every wrong, and the Board is particularly reluctant to dredge up and provide a platform for old complaints.
While it is true that one aspect of the complaint is not old, that is, the allegations about the quality of representation provided by OPSEU in the arbitration, a review of the whole complaint makes clear that it is rooted in the March 1993 union meeting in which an alleged defamatory letter was read out. Since that time, the applicant has tried to litigate, in a variety of forums and with a variety of responding parties, what she sees as harassment in the workplace and the employer and the union’s perceived unwillingness to deal with it. Even if I were to focus only on what the union concedes is the “timely” portion of the complaint, that is the representation provided in the arbitration, I am not satisfied that the complaint could be properly contained; the applicant clearly wants to focus on events of 1993 through 1995, which are, in labour relations terms, ancient history.
The time may have come to put an end to these proceedings. The Board may well determine, without a hearing, that there is no labour relations purpose to be served by any further consideration of this case.
The applicant is directed to deliver to the other parties, and to file with the Board any submissions she wishes the Board to take into account in deciding whether there is any labour relations purpose to considering this matter further. The applicant is also directed to reply to OPSEU’s response, in particular, those parts that ask the Board to dismiss those parts of the application that rely on very old events, or ask the Board to do something which it may not have the jurisdiction to do. In the Board’s view, counsel for OPSEU has fairly and succinctly pointed out the problems with the applicant’s materials. The applicant is directed to deliver and file those submissions no later than May 4, 2001. If either the union or the employer wish to respond, they may do so by May 18, 2001.
Finally, a few comments about the remedies the applicant seeks. She is essentially asking the Board to order the union to pay lost wages during the leave of absence she took from October 1995 to June of 1999 and to pay damages in the amount of three years wages. Even if the applicant were successful, the Board would simply not make that kind of award, and the applicant should be aware of that from the start.
The Registrar is directed to put the parties’ submissions before this panel of the Board if convenient.
“Mary Ellen Cummings”
for the Board