Human Rights Office

Human Rights Office
Human Rights Office

N.M. v. University of Manitoba Faculty Association and University of Manitoba, 2016 CanLII 43995

Summary:

This case is an application filed with the Manitoba Labour Board against the University of Manitoba Faculty Association (UMFA) for an unfair labour practice contrary to Section 20 of the Labour Relations Act (the “Act”).  The applicant alleges that the failure of UMFA to seek judicial review of the arbitration award issued by Arbitrator Michael Werier in December 2008 where the dismissal of the Applicant from the University of Manitoba was upheld breached UMFA’s duty under the collective agreement to take reasonable care in representing his interests.

The Applicant’s employment was terminated by the University on November 2007 as a result of a complaint filed by a student.  The centrality of the complaint and reason for dismissal of the Applicant was based upon allegations that he had sexually harassed the student over a period of time including engaging in numerous sexual acts with her to which she did not consent.  The Applicant denied the allegations and filed a grievance.  The grievance was not revolved and the matter was referred to Arbitration.  In the 85-page document produced by the Arbitrator, it stated “there was just cause for discipline and a clear case for discharge”, additionally the University provided evidence of two previous cases of inappropriate conduct by the Applicant of a sexual nature involving students.

The Arbitrator noted that the central issue that needed to be considered was one of credibility.  Weighing whether the events and D.J’s version was more credible or whether the Grievor’s version of events was more credible on a balance of probabilities.  Using Justice O’Hallaran’s time-tested remarks in Farnya V. Chorney the Arbitrator ruled:

After a review and consideration of the evidence, I have determined for the reasons that follow that I accept D.J’s version pf events and reject the Grievor’s version of events. I believe her and I do not believe him.

Questions to be Determined and Findings:

  1. Did UMFA fail in taking reasonable care in representing the interests of the Applicant in not seeking judicial review of the arbitration award issued by Arbitrator Michael Werier? (NO)

Reasoning:

The leading case to be considered by the Manitoba Labour Board is Bednarski and relied upon in Maintenance Trades (2006). In both of these cases the Board considered the question of whether a union’s refusal to seek judicial review of an arbitration decision may, in appropriate circumstances, constitute a breach of the duty of fair representation.  However, it is important to note that just because an award does not go in favour of the Grievor does not mean that a union has failed in their duty of fair representation.  Further, the decision to seek judicial review lies solely with the union and only in very rare or compelling circumstances would the Board second guess the judgment of the union.

Therefore, although section 20 of the Act may encompass “an obligation to seek judicial review of an arbitration award, the Board will only interfere with the Union’s decisions in extreme or exceptional circumstances” further stating,

For the Board to conclude that a union should file a judicial review application, the defects in the arbitration award must be so patent and pervasive that the Board can readily conclude that the union would be acting arbitrarily not to do so.  That is certainly not the case here. The union fulfilled its obligations under s.74 of the Act when it reached the honest and legally rational opinion that it would not judicially review the arbitrator’s award.

The Union fulfilled its responsibility in contracting out an Arbitration of the complaint, which lasted 10 days and produced an 85-page award in which the complainant and not the Applicant was to be believed.

Outcome:

The original Arbitration was properly conducted, the Union’s decision not to file for judicial review and the university’s decision to terminate employment on the grounds of sexual harassment are upheld.