Rooke v. C.U.P.E., Local 774
Brent Mullin Chair, Bruce R. Wilkins V-Chair, Philip Topalian V-Chair
Judgment: September 7, 2011
Counsel: Ib S. Petersen, for Stevem Rooke
Decision of the Board:
1 The Complainant applies under Section 141 of the Labour Relations Code (the “Code”) for leave and reconsideration of BCLRB No. B130/2011 (the “Original Decision”). The Original Decision dismissed his complaint against the Union under Section 12 of the Code in respect to the Union’s decision to not proceed to arbitration regarding the termination of his employment.
2 The Complainant says that the Original Decision erred in three respects:
- it did not engage in a Section 13 analysis in respect to an “apparent” violation of Section 12 of the Code;
- denied the Complainant a fair hearing when its analysis failed to consider, properly or at all, the allegations of fact before it; and
- ignored the requirements of the Human Rights Code, R.S.B.C. 1996, c. 210.
3 The requirements to obtain leave for reconsideration are set out in Brinco Coal Mining Corp. v. U.S.W.A., Local 1037, BCLRB No. B74/93 (Leave for Reconsideration of BCLRB No. B6/93 [(January 25, 1993), Doc. B6/93 (B.C. L.R.B.)]), (1993), 20 C.L.R.B.R. (2d) 44 (B.C. L.R.B.) (”Brinco”). The application for reconsideration must establish a good, arguable case that the Original Decision should be overturned, based on one of the established grounds for reconsideration.
4 The Board’s approach to the determination of leave without reasons is set forth in RG Properties Ltd. v. I.B.E.W., Local 213 [2003 CarswellBC 3839 (B.C. L.R.B.)], BCLRB No. B378/2003 (Leave for Reconsideration of BCLRB No. B252/2003 [Pinot Holdings Ltd. v. I.B.E.W., Local 213, 2003 CarswellBC 3838 (B.C. L.R.B.)]) (”RG Properties”).
5 We find that the Complainant’s first two bases for seeking leave and reconsideration do not establish a good, arguable case that the Original Decision is in error and, consequently, leave is denied in respect to them: RG Properties.
6 In respect to the third basis upon which he seeks leave and reconsideration of the Original Decision, the Complainant says, at the material times to this matter, he was suffering from depression and anxiety which are recognized disabilities under the Human Rights Code. The Complainant says his disability was noted in his Section 12 complaint to the Board, in which he stated, “At the time, which I did not know, I was going through a depression which my doctor diagnosed had started some time before all of this began”. He says that this condition was described medically as resulting in “high levels of anxiety, unstable moods, poor concentration [and] fatigue”. He further says that although known to both the Employer and the Union, this medical condition was not considered by the Union in the handling of his grievances and ultimately refusing to take the termination of his employment to arbitration. The Complainant says the Union acted in an arbitrary manner, as it “…did not conduct an adequate investigation of the relevant factors, having regard to the seriousness of the matter, and did not make a reasoned decision.” The Original Decision thus erred in not finding an apparent contravention of Section 12 of the Code.
7 The Complainant also says his medical condition provides an explanation for the delay in the filing of his Section 12 complaint.
8 In the leave and reconsideration application, the Complainant relies upon the Supreme Court of Canada’s decisions on the duty to accommodate and the Union’s duty to facilitate that accommodation: British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U., [1999] 3 S.C.R. 3 (S.C.C.) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (S.C.C.)(Grismer); that arbitration is the preferred form for resolving workplace disputes arising from a collective agreement: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (S.C.C.); and that arbitrators have jurisdiction to apply human rights law: Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324, [2003] S.C.J. No. 42 (S.C.C.).
9 The Complainant also notes that the collective agreement between the Union and the Employer contains a provision expressly referring to the principles of the Human Rights Code. He says that neither the Union nor the Original Decision considered these matters.
10 As a leave and reconsideration panel, our task is to review the Original Decision. In commencing to do so in respect to the Complainant’s third basis for leave and reconsideration, we firstly note that, while his medical condition was not a focus of Rooke’s Section 12 complaint, the Original Decision sets out his asserted medical condition within the chronology of events: Original Decision, para. 7. We too will assume the Complainant’s factual assertions in respect to his medical condition. We will also assume that Rooke’s medical condition would constitute a disability under the Human Rights Code.
11 The question before the Board in the Original Decision was whether the Complainant’s Section 12 application established, under subsection 13(1)(a) of the Code, an apparent contravention of Section 12 of the Code. This is a matter which is determined contextually in terms of the materials the Complainant has put before the Board. Our review of the Original Decision in light of the principles in the Code must also ultimately be determined contextually. At issue is the Union’s conduct in response to the specific circumstances put forward in the Complainant’s application. The specific circumstances start with Rooke’s five day suspension. A letter from the Employer, which is quoted, states in part:
What is of utmost concern is your failure to be truthful during our meeting. You were dishonest and misleading regarding the frequency and length of breaks from work, and your ongoing attendance at Bergman Street during working hours. You confirmed in the meeting that you were being untruthful and continued to be untruthful after this acknowledgement. We view this repeated lack of truthfulness as one of the most extreme forms of insubordination. It is culpable and will not be tolerated at any time.
We are suspending you, without pay, for five (5) business days…
Your repeated acts of insubordination are unacceptable and you must understand that if you repeat this type of behaviour in the future you will be placing your employment with the City in jeopardy. As I stated previously this type of behaviour is culpable and if the City concludes that you cannot be relied upon to be truthful your employment will be terminated.
(Original Decision, para. 3)
As can be seen, the lack of truthfulness is the focus of the discipline.
12 Following the chronology of events, the next letter from the Employer also focuses on the failure to be truthful:
…your repeated failure to meet the performance expectations of your position and failure to follow directions regarding attendance at work is unacceptable and cannot be tolerated. Your failure to be truthful in our discussions regarding your absence from work on July 14, 2008 is insubordination and brings into question the ability of the City to trust you.
. . .
By your actions you have placed your employment with the City in jeopardy. It is our expectation that there will not be a repeat of this behaviour in the future. Failure to meet the expectations of honesty, truthfulness, following directions and meeting performance expectations in the future will result in the termination of your employment with the City.
(Original Decision, paras. 4-5)
13 At that point in the chronology, Rooke’s medical condition and evidence is noted: Original Decision, para. 7. However, in respect to Rooke then being off work because of that medical condition, it was found that Rooke was working for another employer while on leave from the Employer. Dishonesty is again the focus of the Employer’s discipline letter (this time resulting in termination of Rooke’s employment) and in respect to the further summary of events the original panel provides regarding the particulars of Rooke’s response to being confronted with these events. The following passage quoted from the Original Decision starts with portions of the Employer’s termination letter:
…we had received information that you had been engaged in employment elsewhere while receiving Sick Leave benefits from the City of Abbotsford.
…You have not only been dishonest, but also, your actions are tantamount to theft. This behaviour is culpable and will not be tolerated.
We have previously brought to your attention our concerns regarding your repeated failure to be honest, truthful, not following directions and failure to meet performance expectations. As indicated by your further misconduct during your Sick Leave absence, please be advised that your employment with the City of Abbotsford is terminated effective immediately.
During this meeting Rooke denied working during his sick leave. The Employer informed him that it had photographs of him working to which Rooke replied that he was just visiting friends at those sites. Hunter took Rooke aside and asked if there was any information that the Employer should know about and urged Rooke to tell the truth. Rooke responded that he was telling the truth. (Original Decision, para. 9)
14 After his termination, Rooke apologized to the Union for being dishonest with them: Original Decision, para. 12. He also, however, “informed the Union that no one had ever told him he could not work while on sick leave”: ibid. In our view, both the admitted dishonesty and Rooke’s subsequent comment presented significant hurdles for the Union in respect to representing him regarding the termination of his employment. In these circumstances, the Union’s review of the events and decision not to proceed to arbitration regarding the Complainant’s termination of employment did not, as concluded in the Original Decision, constitute a breach of Section 12 of the Code. In short, the nub of the matter was Rooke’s untruthfulness, not his medical condition, and it was a reasoned and defensible position for the Union to not proceed with the grievances in respect to Rooke’s discipline and termination of employment.
15 We also find that the Complainant has failed to establish that his medical condition prevented him from filing his Section 12 complaint in a timely manner. As a result, we agree with paragraph 33 of the Original Decision and its concluding comment that the application would have been dismissed “as untimely in any event”.
16 Lastly, we note that an applicant to the Board “…is required to bring [his] whole case before the original panel so that the matter can be decided with finality”: Canvin v. I.A.M. & A.W., Local 692 [2010 CarswellBC 2797 (B.C. L.R.B.)], BCLRB No. B174/2010 (Leave for Reconsideration of BCLRB No. B106/2010 [2010 CarswellBC 1670 (B.C. L.R.B.)]), para. 5. That includes any and all arguments in respect to Charter (constitutional) and human rights (quasi-constitutional) matters: ibid., paras. 5-7; Catholic Independent Schools Diocese of Prince George v. B.C.G.E.U. [2001 CarswellBC 3294 (B.C. L.R.B.)], BCLRB No. B112/2001 (Leave for Reconsideration of BCLRB No. B253/200 [2000 CarswellBC 2919 (B.C. L.R.B.)]), paras. 101-103. This requirement to bring forward the entire case at first instance is also noted in Judd v. C.U.P.E., Local 2000, BCLRB No. B63/2003, (2003), 91 C.L.R.B.R. (2d) 33 (B.C. L.R.B.) (”Judd”), paras. 71-79, and the Board’s Section 12 Guide on its website. Judd and the Section 12 Guide also specifically explain the nature and requirements of a discrimination complaint under Section 12 of the Code: see Judd, for instance, paras. 55-57.
17 In his Section 141 application, the Complainant says he sufficiently “put his mental health in issue” in his original Section 12 complaint. As set out above, the Complainant’s depression and anxiety were noted in the Original Decision in the chronology of events: Original Decision, para. 7. However, it does not meet the requirements set out above, including in Judd and the Board’s Section 12 Guide, to merely note the medical situation. If that medical situation is the basis for a claim of discrimination, that needs to be clearly stated in the original complaint. It wasn’t and it is not acceptable, in light of what is set out above, for it to then be argued on reconsideration. That is a fortiori in the present facts in which the Complainant was discovered working elsewhere while on sick leave from the Employer at the time of his asserted medical condition.
18 As a result, we would dismiss the discrimination portion of the Complainant’s Section 141 arguments on this basis as well.
19 In light of the above, we find that Rooke’s application for leave and reconsideration of the Original Decision does not present a good, arguable case and as such leave is denied in respect to it.
20 In conclusion overall, leave is denied and the application for reconsideration is dismissed.