The Canadian Union of Public Employees (CUPE) failed to adequately represent a former porter at a hospital in North Bay, Ont., after he was fired following allegations of sexual harassment, the Ontario Labour Relations Board (OLRB) has ruled.
P.C. worked at the North Bay Regional Health Centre for 22 years before being dismissed on May 25, 2023. He filed a duty of fair representation complaint against CUPE, alleging that the union’s handling of his grievance was arbitrary and lacked due diligence. He was 62 years old at the time of that complaint.
In it, he indicated he was “never reprimanded or received negative evaluations” during his time at the hospital.
Allegations of harassment
The case centered around P.C.’s termination following the allegations of harassment. According to the hospital, P.C.’s conduct included making inappropriate sexual comments and behaving in a manner that violated workplace policies.
“We have concluded that you have engaged in a course of conduct that included unwelcome and inappropriate comments of sexual nature to and about your co-workers,” his termination latter stated. “Furthermore, evidence supports that you were not truthful when responding to these allegations.”
It went on to state: “Your actions have caused significant and distressing effects to several of your co-workers… your misconduct has created an unhealthy and unsafe work environment for your co-workers, placed your co-workers at risk and negatively affected our Patient Distribution and Switchboard programs.”
The union grieved the firing immediately on the day P.C. was fired. That grievance was withdrawn “without prejudice or precedence” on Sept. 12, 2023. Two weeks later, the union replied to his request for documents and information, stating: “The local carefully reviewed your grievance. The local has decided not to take this forward, based on the legal opinion that the grievance would not likely be successful.”
Despite the gravity of the allegations, the OLRB noted that the union’s representation of P.C. fell short of its statutory obligations. It emphasized that the union failed to provide him with sufficient particulars of the allegations against him or an opportunity to respond to new information gathered from witness interviews.
Numerous allegations
The ruling highlighted that, contrary to the hospital’s assertion, P.C. was not given a fair chance to address all allegations, particularly those that surfaced after his initial interviews.
For example, he was aware of allegations that he referred to Fridays as “Lululemon Fridays” in reference to the brand of pants one of the complainant’s wore and that he allegedly asked other workers what she wore to the gym.
But allegations set out by other witnesses, including that he compared her breasts to other employees, hugged her, asked how much she can “squat” in a sexual tone, and that he physically picked her up to show someone her “butt” were never put to him, the board said.
“As those were not raised with the applicant in the Employer’s interviews, the assertion in the termination letter that the Hospital had provided him with ‘an opportunity to speak to each of the allegations’ was misleading, if not false,” the OLRB said.
Procedural shortcomings
The board’s decision underscored several procedural shortcomings by the union. Notably, the union did not go back to P.C. with new allegations from interviews conducted with other employees, despite the existence of notes from those interviews.
Additionally, the union’s legal opinion on the viability of P.C.’s grievance was deemed inadequate, as it did not fully consider all mitigating factors or address relevant arbitral precedents comprehensively.
“The Union’s acting as it did without particulars of the Employer’s grounds for discharging (P.C.) was a significant aspect of a breach of its obligations to him,” the board said. It concluded that the union’s failure to fully inform him and obtain his input on all allegations constituted arbitrary conduct, ultimately violating section 74 of the Labour Relations Act, 1995.
The ruling directs the hospital to provide P.C. and the union with comprehensive details of the factual bases for his dismissal, including all documentary evidence, “subjected to appropriate redactions.” The union is also ordered to disclose any additional relevant particulars to P.C.
The board said that it was “quite possible” that the union’s decision to drop the grievance on the merits of this case was correct. “The union’s process, however, was not,” it said.
The board remains seized of the matter, with a Labour Relations Officer appointed to assist the parties in determining an appropriate remedy.
Lessons from this ruling
- Due Process in Investigations: Employers must ensure that all allegations are thoroughly investigated and the results are clearly communicated to the accused employee, providing them with a fair opportunity to respond.
- Union Representation: Unions have a duty to fully inform their members about the specifics of the allegations against them and obtain their input before making decisions on grievances. Failure to do so can constitute a breach of their statutory obligations.
- Legal Opinions: When seeking legal opinions on the viability of a grievance, unions should ensure that all relevant factors and precedents are considered comprehensively. An incomplete or inadequate legal opinion may not withstand scrutiny and can undermine the union’s decision-making process.
For more information, see Paul Collins v Canadian Union of Public Employees (“CUPE”) Local 139, 2024 CanLII 51786 (ON LRB).
