In the recent case of Dupuis v. S.C.C.E.P, local 2301 the Québec Court of Appeal ordered the S.C.C.E.P. to pay a former employee $193 140, plus interest and costs, following its negligence in defending his interests.
Mr. Dupuis had been working for over 22 years as a maintenance employee. In 2001, he committed a serious professional error. While performing the maintenance of a paper mill, he locked the wrong operating panel and omitted to verify if the system was properly locked before carrying out the maintenance. Had the system been activated by somebody else while Dupuis was inside the mill, he would most likely have been killed. However, in this case, the error was discovered before any damage was suffered or injuries occurred.
The employer suspended Dupuis pending an investigation and dismissed him a week later citing reckless negligence.
On the day following his termination, Dupuis turned to his union to file a grievance. The union filed the grievance, but skipped the first step of the grievance procedure, which required that grievance be first brought to the worker's foreman, prior to advancing the grievance to the Director of Human Resources. In this case, the union filed the grievance directly with the Director of Human Resources first.
Although the union and the worker had attempted to negotiate a lesser sanction during the suspension, when the Director received the grievance, he told the union "We'll see you in front of the arbitrator". The union did not complete the second step of grievance procedure, which required a meeting with the HR Director to discuss the grievance and attempt to resolve it. Moreover, the union did not wait for the HR Director to supply the written response to the grievance as required by this second step, and referred the grievance directly to arbitration.
Within the month following the referral of the grievance to arbitration, the HR Director wrote the union to inform it that the employer would contest the validity of the grievance on the basis that it did not follow the procedure set out in the collective agreement. The former union president was informed of this objection, and advised Dupuis. He characterized the mistakes committed by the union as serious and recommended that the worker negotiate directly with the employer.
However, when the employee contacted the union, he was informed that the employer's objection would be overruled by an arbitrator and encouraged the worker to pursue his grievance.
Notwithstanding the union's opinion, the worker met with the employer to attempt to settle the grievance. The employer offered him a different position within the same plant and a monetary amount to indemnify him for lost salary. Confident in the union's opinion that the grievance was valid, the worker refused the employer's offer.
Even though the union's negligence was clear, a union representative did not advise Dupuis of his right to file a claim against the union for the violation of the duty of fair representation, as provided by sections 47.2 and 47.3 of the Québec Labour Code. Among the remedies available under these sections is the possibility of having the grievance heard by an arbitrator notwithstanding the procedural defects resulting from the union's negligence.
No one recommended that Dupuis retain legal counsel nor was he made aware that the recourse under sections 47.2 and 47.3 of the Labour Code had a six-month limitation period. When the grievance was heard, one year after its filing, it was rejected for failure to comply with the grievance procedure. Dupuis' subsequent complaint under sections 47.2 and 47.3 of the Labour Code was rejected by the Labour Relations Board, which found the complaint to be out of time.
Following the Labour Relations Board's dismissal of the complaint, Dupuis retained counsel and instituted a civil proceeding. The Superior Court declined jurisdiction of the matter, concluding that the Labour Relations Board was the only tribunal competent to hear a dispute related to a union's negligence in representing a worker.
This finding was overruled by the Court of Appeal in this case. The Court outlined that the worker had never had the chance to submit the issue of his dismissal to an adjudicator solely because of the union's defective advice. The Court concluded that the union's failure to advise Dupuis adequately, even without any evidence of bad faith, amounted to gross negligence, depriving Dupuis of his recourse against the employer. While the Court concluded that any recourse directed against the employer was precluded following the decision of the Labour Relations Board, the issue of the union's liability remained open.
The Court of Appeal concluded that prejudice to Dupuis, arising from the failure to have his grievance heard, had to be evaluated on the balance of probabilities. The Court determined that it was almost certain that Dupuis' grievance would have been granted, since, among other factors, during his suspension he had written a letter to the employer which expressed regrets and partially negated the employer's assumption that the employee had acted in reckless disregard. In an unprecedented ruling, the Court awarded Dupuis damages for loss of salary incurred from his dismissal up to the first day of hearing before the Supreme Court.
1. 2008 QCCA 837, rendered on May 1st, 2008
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