A public sector union in Saskatchewan has been ordered to pay nearly $300,000 in damages to a fired worker it failed to represent properly.
That includes more than $200,000 in damages for the breach of duty of fair representation and $25,000 in moral damages.
What happened
David Lapchuk was fired from his employment with the Government of Saskatchewan on Oct. 27, 2013. Local 101 of the Saskatchewan Government and General Employees’ Union filed a grievance on Lapchuk’s behalf, but it was ultimately dismissed by an arbitrator on Aug. 31, 2016.
Unhappy with how the union handled the grievance, he filed a claim against the union for breach of duty of fair representation with the Saskatchewan Labour Relations Board. In February 2022, the board issued its ruling on liability that found the union had breached its duty of fair representation.
But it did not have sufficient evidence to make a decision about the remedy at that time, it said. On Feb. 17, 2023, it released its ruling on remedy.
Union did ‘nothing’ to assist worker
In last year’s ruling, the board examined the union’s conduct and found numerous deficiencies, and said it acted in a manner that was “arbitrary, discriminatory and in bad faith.”
For example, there was a meeting with the employer on Sept. 30, 2013, and the union “did nothing to assist Lapchuk.”
After the meeting, the union did not investigate the cause of the breakdown of the meeting or take into account the worker’s concerns or his illness.
It did not make a rational, reasoned decision about whether to have his grievances heard by a single arbitrator or an arbitration panel, the board said.
“While the Union indicated that they were primarily putting forth a medical defence, they showed up at the arbitration hearing with no medical evidence. As a result, the Arbitrator granted them an adjournment to gather that evidence,” the board said.
“The Arbitrator made it clear that the Union knew, before the hearing reconvened, what was required of them, but they chose not to provide appropriate evidence. They chose to proceed on the adjourned date, knowing their case would fail.”
When the employer would not consent to medical reports being submitted without a witness to speak to them, the union reps did not know what to do — nor did they take any steps to find out what they should do, causing the reports to be disregarded by the arbitrator.
“They argued that it was Lapchuk’s responsibility to gather evidence, not theirs,” the board said. “Further, they tried to argue that they did not have Lapchuk’s consent to gather medical evidence, but that was clearly and obviously false.”
Excessive delays and evidence bungling
The union also allowed excessive delays and ignored the idea, contained in the collective agreement, that time is of the essence in a termination grievance.
The agreement stated termination arbitrations will be heard, and decisions rendered, within 120 days.
In Lapchuk’s case, more than 1,000 days passed between termination and the decision of the arbitrator
The union had evidence about another defence it intended to raise at arbitration, but it was disregarded by the arbitrator because the union reps didn’t know how to tender it in an admissible manner.
“The Union was unable to explain the rationale for many decisions made in the course of preparing for and conducting the arbitration or even, in some cases, who had made important decisions,” it said.
All of this amounted to “fundamental contraventions of the duty of fair representation,” it ruled, far beyond the “technical breaches” that the union argued.
The award
An actuary estimated the losses of employment earnings for Lapchuk to be more than $1.6 million, including interest.
If the amount was adjusted to workers’ comp payments he has been receiving and presumably will continue to receive until age 65, his losses from termination to retirement amounted to slightly more than $568,000.
The full math and reasoning is in the judgment, but the board ordered the union to pay Lapchuk a total of $294,755 broken down as follows:
- Damages for breach of duty of fair representation: $206,849
- Legal expenses: $25,000
- Out-of-pocket expenses: $12,761
- Moral damages: $25,000
- Pre-judgment interest from date of termination: $25,145
Damages for breach of duty: 1.5 months per year of service
Lapchuk was a long-term employee with more than 25 years’ service. He has been unable to find work since the termination.
The board refused to take the conduct of Lapchuk into account when calculating the damages.
“The Board is not going to discriminate against Lapchuk on the basis of his disability. Medically compromised behaviour is not subject to censure,” it said.
It settled on 1.5 months per year of service in awarding the $206,849.
Moral damages
In awarding moral damages, the board said that “Lapchuk was a particularly vulnerable individual and the union had knowledge of that vulnerability.”
“Their course of conduct was so implausible, so summary and so reckless as to be unworthy of protection,” it said. “They adopted an arbitrary, uncaring, reckless course of conduct that was a serious breach of the duty of fair representation they owed to Lapchuk.”
For more information, see Lapchuk v Saskatchewan Government and General Employees’ Union, 2023 CanLII 10988 (SK LRB)
