Date:
20110509
Docket:
A-209-10
Citation: 2011 FCA 156
CORAM: LÉTOURNEAU
J.A.
SEXTON
J.A.
TRUDEL
J.A.
BETWEEN:
JAMIE MCAULEY
Applicant
and
CHALK RIVER TECHNICIANS AND TECHNOLOGISTS
UNION
and
ATOMIC ENERGY OF CANADA LIMITED
Respondents
REASONS FOR
JUDGMENT
TRUDEL J.A.
Introduction
[1]
This
is an application for judicial review of a decision of the Canada Industrial
Relations Board (the Board) dated April 28, 2010 (2010 CIRB LD 2336) dismissing
the applicant’s complaint pursuant to section 37 of the Canada Labour Code,
R.S.C. 1985, c. L-2 (Code).
[2]
In
his complaint, the applicant alleged that the Chalk River Technicians and
Technologists Union (Union) was arbitrary and unfair in its representation of
him. The Union had filed a
grievance following the applicant’s termination of employment, ultimately
deciding not to take the grievance to arbitration. The Board dismissed the
complaint.
[3]
The
applicant argues that the Board denied him procedural fairness for a number of
reasons: (1) it failed to compel the Union to produce highly relevant documents
and information. More particularly, the applicant is concerned that neither the
Union, nor the
Board dealt with the contradictory evidence as to whether he was still on
probation when terminated; (2) it failed to require the employer to participate
in any manner; and (3) it denied him the opportunity to have an oral hearing.
[4]
The
applicant also argues that the Board should have found that the Union
arbitrarily conducted itself given the lack of evidence to support a proper
investigation, coupled with unreasonable delay in pursuing his case and
the Union’s failure to communicate with him about his complaint (applicant’s
memorandum at paragraph 72).
[5]
On
May 19, 2010, the applicant applied to the Board to
have the decision reconsidered pursuant to section 18 of the Code (applicant’s
appeal book, tab M at page 92). The Board allowed the application for
reconsideration and issued a second decision on June 22, 2010 (2010 CIRB LD
2373) rejecting the applicant’s arguments (applicant’s record, tab N at page
198). The applicant did not challenge this second decision.
[6]
In light of this Court’s decision in Vidéotron
Télécom Ltée v. Communications, Energy and Paperworkers Union of Canada, 2005 FCA 90 at
paragraphs 10 to 12 and Veillette v. International Assn. of Machinists and
Aerospace Workers, 2011 FCA 32 at paragraph 3, the applicant must challenge both decisions, especially if
the decision on the application for reconsideration affirms the first and if
quashing the first would not eliminate the second, which is the case
here. At the hearing of this application, it was agreed by both parties
that the judgment to be rendered would dispose of both decisions.
Procedural
Fairness before the Board
[7]
On the issue of procedural fairness, I conclude that the Board
committed none of the errors alleged by the applicant.
[8]
Section
16.1 of the Code provides that the Board may decide any matter before it
without holding an oral hearing. Our Court has already decided that issues of
credibility or the existence of contradictory evidence do not automatically
warrant an oral hearing (Guan v. Purolator Courier Ltd., 2010 FCA 103; Nadeau
v. United Steelworkers of America, 2009 FCA 100).
[9]
In
this case, the contradictory evidence concerned the status of the applicant,
i.e., whether he was on probation or a short-term service employee. The
Board was alive to this issue, but a final determination was not essential to
the outcome because the legal opinion obtained by the Union, before it
made its decision, concluded that the grievance would not likely succeed even
if the complainant was not a probationary employee (respondent’s record, volume
1, tab 5 at page 30). For the same reasons, the production of documents
relating to the applicant’s employment status was unnecessary.
[10]
The
applicant also argues that he was deprived of procedural fairness as he did not
have a chance to present his side of the facts and to respond to the
allegations that he had stolen time (applicant’s memorandum at paragraphs 51
and 52). According to the applicant, there were mitigating factors,
relevant to both his section 37 complaint and to the merits of his grievance
that the Union failed to put to the Board: his legitimate explanations for his
absence; his clean disciplinary record and positive performance review; his
status of employment. I have two answers to this argument.
[11]
First,
a section 37 complaint is a different proceeding than the adjudication of the
grievance. It is not the proper forum to argue the grievance on its
merits, explaining why the employer is not a principal party to a section
37 proceeding (McRaeJackson v. CAW-Canada, [2004] C.I.R.B. No. 290 at
paragraph 247; 115 CIRBR (2nd) 161 [McRaeJackson]). In this
case, the applicant has failed to persuade me that the Board would have had
reason to compel the employer’s participation to the proceeding.
[12]
Second,
the applicant’s explanations for his absences and the fact that he had no
disciplinary record were known to the Board (see applicant’s written
submissions to the Board, applicant’s record, volume 1, tab K at paragraphs 12
and f.; respondent’s record, volume 1, tab 5 at page 28). The applicant has
failed to show any exceptional circumstances warranting an oral hearing. I am
satisfied that the applicant’s side of the facts and relevant material were
properly in front of the Board.
The section 37 complaint
[13]
Finally,
the applicant contests the Board’s finding with respect to the conduct of the Union. It is trite
law that the standard of review applicable to the Board’s decision on the
Union’s duty of fair representation is reasonableness (Grain Services Union
(ILWU-Canada) v. Friesen, 2010 FCA 339 at paragraph 31).
[14]
In
McRaeJackson, the Board enunciated the test it applies in a section 37
complaint:
[27] Accordingly, the Board
will normally find that the union has fulfilled its duty of fair representation
responsibility if: a) it investigated the grievance, obtained full details of
the case, including the employee’s side of the story; b) it put its mind to the
merits of the claim; c) it made a reasoned judgment about the outcome of the
grievance; and d) it advised the employee of the reasons for its decision not
to pursue the grievance or refer it to arbitration.
[15]
Here,
the Board found that “the Union made a reasoned decision not to pursue the
grievance based on its review of the evidence and a legal opinion that it
obtained from outside counsel” (reasons at page 7). The Board highlighted that
the Union based its decision on the following factors, which the Board
considered uncontested (ibidem):
-
the
fact that the applicant was either a probationary employee or an employee with
low seniority (Union’s appeal book, tab 5 at page 27);
-
the
fact that the employer had evidence that the applicant had left work without
permission and had been paid for time he did not work (ibidem at page
29); and
-
the
fact that he admitted leaving work without permission (ibidem at page
28).
[16]
The
applicant opines that the Board was wrong in considering these factors as
uncontested since the legal opinion obtained by the Union “was based upon
incomplete facts arising from a negligent investigation” (applicant’s
memorandum at paragraph 18). Had the Union conducted a proper
investigation, the applicant’s position would have prevailed. Having examined
the record that was in front of the Board, I must disagree with the applicant.
The record supports the Board’s findings.
[17]
For
example, in his written submissions to the Board, the applicant explains that on
two occasions, he left the workplace early due to child care commitments. He
could not find a supervisor and was unable to leave a message because the
supervisor’s voicemail box was full. So, he left without permission. However,
at no time upon his return to work or before pay day, did the applicant report
his absences. This fact was confirmed by counsel for the applicant at the
hearing of this application. No serious explanation was offered for this
omission. Therefore, the applicant was paid for hours he did not work and during
which his absence from work had neither been authorized, nor reported. This is
the misconduct that led to his termination. The employer found that these
actions contravened the “truthfulness and integrity” required in their business
dealings (applicant’s record, volume 1, tab D at page 143; applicant’s
affidavit, ibidem at pages 7-8, paragraph 8).
[18]
As
a final ground of complaint, the applicant raises the Union’s unreasonable
delay in pursuing his case and failure to communicate with him in a timely
fashion. The Board addressed this issue in its reasons, called the situation “unfortunate”,
but held that there was no breach of the duty of fair representation.
[19]
In
light of the evidentiary record, it was open to the Board to conclude as it
did. Its decision falls within a range of possible, acceptable outcomes, which
are defensible in respect of the facts and the Code (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
[20]
Therefore,
I would dismiss this application for judicial review without costs, as the
respondents are seeking none. The judgment will dispose of the Board’s
decisions indexed as 2010 CIRB LD 2336 and 2010 CIRB LD 2373.
“Johanne
Trudel”
“I
agree
Gilles Létourneau J.A.”
“I
agree
J. Edgar Sexton J.A.”
Email this Content