Employee allowed to file initial grievance
The union representing teachers at a school in Athabasca, Alta., was taught a lesson in fairness after an instructor complained it failed to do its duty after he was fired.
An educational assistant, whose name was withheld, had been employed at Aspen View Public School since 2009 but resigned in 2011, citing distress about how administration addressed certain issues.
His resignation letter — which was highly critical of the school — was not only distributed to his employer, but also to the student body later that day. Perhaps not surprisingly, management accepted the letter.
But this was not a satisfying response for the employee. The following day he emailed his Canadian Union of Public Employees (CUPE) representative, indicating he wanted to retract his resignation and instead pursue stress leave. For the past 20 years, the note added, he had been in the care of a psychiatrist.
The educational assistant then reached out to CUPE and Aspen View, indicating he was seeking reinstatement and subsequent leave.
He said, she said
What ensued remains a point of contention for both CUPE and the employee.
The staffer maintained he asked his union representative to grieve two matters — working conditions at the school and its acceptance of his resignation — but the union’s response was that it could not do anything for him.
But the union disagreed. The employee’s representative could not recall any request to file a grievance. She did, however, seek advice from CUPE’s national representative and reported back that nothing further could be done to help the educational assistant’s case.
That defence had no legs, arbitrator Nancy Schlesinger ruled, as a plea for aid does not necessarily need to be spoken in as many words.
"The whole point of seeking such advice was to find out if the union could do anything to assist the complainant," her decision reads. "We think it unlikely that (the union representative) would have sought advice if the complainant had not indicated in some manner that he regretted the loss of his employment and was looking for the union’s help."
Following that interaction (or lack thereof), the complainant sought a meeting with the CUPE national representative, the same person whom he believed to turn down his attempt at reinstatement.
However, the union could not see any point in this meeting, and said as such.
Instead, CUPE suggested a meeting between the complainant, employer and union — at the same time making it clear there was nothing more the union could do for the employee under the collective agreement.
"Such a meeting would give the complainant the ability to speak his mind on the issue of his resignation and give him a sense of closure on the issue," the union explained.
The employee disagreed, arguing the union pre-judged his case by refusing to meet with him prior to any such meeting.
Tension at an all-time high, the parties did not meet further.
Superficial review
In order to determine whether CUPE failed to fairly represent its worker, Schlesinger said it must not be arbitrary.
"In deciding whether or not to pursue a grievance, a union must avoid arbitrary, capricious, discriminatory or wrongful conduct. It must not act in bad faith," she explained, adding that it is arbitrary to give superficial attention to the issue, to make a decision without concern for the employee’s needs or interests and, finally, it is arbitrary not to investigate.
It was on this basis she concluded the union did not do its job in giving the complainant’s case a chance.
CUPE’s defence that the employee did not explicitly ask for help was tenuous at best.
"The complainant did not need to use any special words to get that assistance. Nor did he need to express the proper legal basis underlying his concerns. It was enough that he asked for help regarding the loss of his employment," Schlesinger said in her decision. "It was up to the union to investigate his concerns and determine whether there was any basis under the collective agreement upon which to file a grievance."
Furthermore, the particular circumstances of this case led the judge to overrule the time constraints outlined in the collective agreement, allowing the employee an opportunity to file his initial grievance.
Reference: Educational assistant at Aspen View Public School and the Canadian Union of Public Employees, Local 4575. Nancy E. Schlesinger — arbitrator. Mark Francis for the employer, Regina Rasmussen, Linda Huebscher, Debbie Gervais-Arbane for the union. March 4, 2014.
