A duty of fair representation complaint against the Canadian Association of Professional Employees (CAPE) has been dismissed by the Federal Public Sector Labour Relations and Employment Board (FPSLREB) because it wasn’t filed on time.
The complaint, made under section 190(1)(g) of the Federal Public Sector Labour Relations Act, alleged that CAPE had failed in its duty to fairly represent the worker — J.D. — during her workplace harassment case. Specifically, she claimed that CAPE had allowed the same representative who had been assisting her to represent the colleague she accused of harassment, creating a conflict of interest.
The Board’s decision hinged on the strict time limits set out in the Act. According to section 190(2), complaints must be submitted within 90 days of the complainant becoming aware of the actions or circumstances giving rise to the complaint. In J.D.’s case, the Board found that she had waited too long to file her complaint, regardless of when she claimed to have known about the alleged conflict of interest.
Timeline of events
J.D. initially submitted a complaint of harassment against a colleague to her employer on Nov. 27, 2020. During her employer’s investigation, she sought assistance from CAPE, unaware that the representative assigned to her was also representing the colleague she had accused. The representative declared a conflict of interest only after they had already represented the colleague during the investigation.
J.D. claimed that she first became aware of the conflict on April 27, 2021. However, she did not file her complaint against CAPE until April 28, 2022 — well beyond the 90-day time limit required under the Act. In response, CAPE argued that the complaint should be dismissed both for lacking merit and for being out of time.
The Board’s reasoning
The Board’s decision focused on the issue of timeliness. It reviewed J.D.’s claim that she was unaware of the conflict of interest until Nov. 30, 2021, when she received the final report from her employer’s investigation. In her complaint, J.D. stated that she filed the complaint within 90 days of completing the internal appeal process with CAPE.
However, the Board found J.D. had sufficient knowledge of the circumstances much earlier. It noted that she had identified the conflict as early as April 27, 2021, in her own complaint, which was the date she first alleged that CAPE had failed to provide fair representation.
The Board emphasized the importance of adhering to the 90-day limit for filing complaints. It stated that J.D. should have filed her complaint by at least Feb. 28, 2022 — 90 days after she received the report on Nov. 30, 2021. The Board explained that “once the complainant was aware of the circumstances giving rise to her complaint, nothing prevented her from making a complaint to the Board.”
Legal arguments
J.D. contended that the internal appeal process within CAPE had delayed her filing, as she had pursued the matter internally before bringing it to the Board. CAPE’s internal process concluded on Feb. 28, 2022, with a decision from the union’s president stating that no breach of fair representation had occurred.
The Board, however, dismissed this argument, referencing previous case law that clarified the 90-day limit. It stated that using an internal complaints process did not extend the statutory deadline for filing a complaint with the Board. The decision cited the case of Markey v. Professional Institute of the Public Service of Canada, which similarly concluded that the 90-day time frame is unaffected by the completion of internal union processes, unless specific exceptions outlined in the Act apply.
In its final decision, the Board declined to follow earlier precedents that had suggested otherwise. It reaffirmed that the clear language of section 190(2) did not allow for extensions based on the use of internal appeal mechanisms unless the case involved penalties such as expulsion or suspension, as outlined in sections 188(b) or (c) of the Act.
For more information, see Dundas v. Canadian Association of Professional Employees, 2024 FPSLREB 55 (CanLII).
