This post is written by Geneviève Lay, an articling student at Ogilvy Renault, LLP.
In Thibault c. Syndicat des employé-es du Centre universitaire de santé McGill (CSN), 2010 QCCRT 139 (CanLII), a recent decision by the Quebec Commission des relations du travail (CRT), an employee filed a complaint following the union’s failure to file a grievance contesting his dismissal within the appropriate timeframe.
The evidence revealed that on October 20, 2006, the employee received a letter stating that he had been dismissed as of October 17, 2006. He contacted his union the very same day, with the request that they take the necessary steps to act in his defense. Over the course of the months of November and December 2006, the union and the employer undertook negotiations in the hopes of finding a satisfactory solution to the situation. When this did not happen, the union filed two grievances on March 9, 2007. Once in front of the arbitrator, the employer raised the preliminary objection that the grievances had been filed too late, as the collective agreement stated that all grievances had to be filed within thirty days of the employee’s knowledge of the facts in dispute. The arbitrator accepted this argument and dismissed the grievances.
Article 47.2 of the Quebec Labour Code states:
47.2. A certified association shall not act in bad faith or in an arbitrary or discriminatory manner or show serious negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are members.
The CRT acknowledged that the union had not acted in bad faith or in a arbitrary or discriminatory manner. However, it concluded that the failure to file a grievance to contest the dismissal within the prescribed time limit constituted serious negligence. The union’s omission to file on time directly and negatively impacted the rights of the employee. The negotiations between the employer and the union did not change the fact that the union had a duty of fair representation towards the employee.
The CRT ended with an interesting reminder: a union is never prohibited from filing a “preventative” grievance. While a grievance can always be withdrawn, it cannot be “reborn” once prescribed.