By Rachel H Roy
On Friday, the Labour Relations Board held that the Transit Police Professional Association (the “TPPA”) “demonstrated blatant and reckless disregard for the Complainant’s interests” in a duty of fair representation complaint (at para. 166 of BCLRB No. B153/2017) we filed on behalf of the Complainant. The TPPA is no stranger to the Labour Relations Board as it raided COPE 378/MoveUP several years ago in order to represent the bargaining unit at issue in this complaint. Duty of fair representation complaints are very rarely successful but in this case, the Board found that the TPPA’s conduct breached the Labour Relations Code.
The Board held that, “in all of these circumstances, and given that the TPPA was aware that the Complainant had not received wages since March 11, 2016, her sick leave pay had expired, her LTD claim had been denied, and her WorkSafeBC appeal was yet to be determined”, the TPPA should have done more than it did, which was deciding to take no further action at all.
The employer in this case, Translink Security Management Limited (“TSML”), ordered the Complainant to attend an independent medical examination (the “IME”) but did not follow up on the recommendations in the IME report prior to terminating her employment. The TPPA did not challenge the Employer’s failure or request that the recommendations be carried out, nor did it challenge her termination in order to avoid embarking in an “adversarial process” with the employer. The TPPA had sought a legal opinion once the Complainant was terminated but did not pursue a remedy for her through the grievance process, nor did it pursue the “viable argument” outlined in the legal opinion.
On the whole of the evidence before it, the Board determined that the TPPA did not come to a reasoned decision in relation to the Grievance or in handling other critical aspects of the Complainant’s situation. The Board’s reasons for this are set out from paras. 155 to 166, excerpts of which are included below:
First, there can be no dispute that the IME was a significant event in the process of dealing with the Complainant’s situation. … Sgt. Hermann’s evidence was that the IME marked a significant shift in TSML’s position, in that TSML no longer questioned that accommodation was needed. … However, the undisputed evidence is that TSML did not direct any medical or workplace investigations or assessments in relation to the Complainant, no did the TPPA request anything of the sort. Instead, Sgt. Hermann embarked upon an assessment of the Complainant’s job functions with Insp. Hicks, without the Complainants knowledge or involvement. Given that the IME was conducted at TSML’s insistence, and given TSML’s stated purpose for the IME, I find it was not a reasoned decision for the TPPA to leave the total lack of follow-up by TSML unchallenged. There was no evidence that the TPPA turned its mind at all to consider or assess the impact of TSML’s failure to follow through with any of the recommendations in the IME report.
Second, I find the TPPA’s reluctance to file a grievance regarding back pay and sick time, despite the Complainant’s multiple requests, and its failure to at least pursue the Grievance through the grievance procedure, does not reflect a reasoned judgment…
I accept the Complainant’s assertion that Sgt. Hermann had a clear preference for avoiding the grievance process. Sgt. Hermann’s evidence was that filing a grievance would have been premature, but also that the TPPA did not want to create an “atmosphere of a grievance” with “process formality”, describing a grievance as the first step in an “adversarial process”. After the [termination letter] was received, the TPPA was still not prepared to file a grievance, and wanted to first obtain a legal opinion. When the Grievance was ultimately filed, the evidence was that the TPPA decided to not pursue it, based on the Legal Opinion.
I find the Legal Opinion was an important and significant factor in the TPPA’s decision not to pursue the Grievance. In short, the TPPA sought a Legal Opinion, decided not to pursue the Grievance on the basis of the Legal Opinion, yet ignored the viable argument identified in the Legal Opinion for pursuing the Grievance. Importantly, I find there was no meaningful evidence or explanation as to why the TPPA chose to ignore the argument identified in the Legal Opinion. What is clear on the evidence is that after receiving the Legal Opinion, the TPPA took no further action on the Grievance, the accommodation of the Complainant, or the termination of her employment, at all.
(emphasis in original)