[1980] OLRB Rep. May 774
1207-79-U International Molders & Allied Workers Union, Complaint, Rehau Plastiks of Canada Limited, Respondent.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members C. G. Bourne and M. J. Fenwick.
DECISION OF VICE-CHAIRMAN N. B. SATTERFIELD AND BOARD MEMBER C. G. BOURNE: May 23, 1980
- Mr. Terry Riddell, the grievor on whose behalf the complainant in this matter filed a complaint under section 79 of The Labour Relations Act, has asked the Board to reÂconsider its majority decision which issued November 2, 1979. The complainant alleged that Riddell had been dismissed by the respondent contrary to section 58 of the Act. A majority of the Board found that the respondent had dismissed him for the reasons stated to him at the time of dismissal and not out of any anti-union sentiment or for having engaged in union activity. The reason advanced by the respondent for Riddell's dismissal was as stated in its letter to him notifying him of the dismissal:
"This is to advise you that your services are being terminated effective today due to your illegal activities in attempting to damage Company property, for which you were arrested by the Police yesterday eveÂning."
- It is this reason for discharge which appears to be at the root of Riddell's request for reconsideration for his letter reads in part as follows:
"I was fired by the Company for attempted vandalism although the case was dismissed by Magistrate P. Baker because of lack of evidence on November 8th. ,/79.
I must ask the Board if I was not fired for union activity, why was I fired? It can't be for alleged vandalism since a provincial court of law would not hand down a decision because of lack of evidence.
It should be noted by the Board that I was not convicted of any crime yet my Record of Employment states I was fired for attempted vandalÂism. This does not seem fair to me. I feel any mention of attempted vanÂdalism should be removed from my Record of Employment and orÂdered so by the Board."
There are two obvious elements to his request for reconsideration. The first is his concern that the provincial court dismissed for lack of evidence charges against him which had been based on the events involving Riddell described in paragraph 3 of the Board's decision and, of course, the same events on which the respondent's reason for discharge were based. The inference to be drawn from Riddell's letter is that the Board has erred in accepting these as the respondent's reason (and the only reason) for dismissing him. The second element of his concern is with what may be registered on his record of employment with the respondent as to the reason for his termination of employment and the possible effect of that record on his chances of employment elsewhere.
Riddell's perception that the Board has erred is not an unreasonable one from his point of view. But it would appear to be based on a misunderstanding of the different purÂposes for which the Board and the courts were considering evidence about the same event and the different standards applied to the evidence. The question before the Board arising from the complainant's allegations was whether the respondent had violated section 58 of the Act. In these circumstances section 79(4a) of the Act places the responsibility on the reÂspondent to prove that he did not violate the Act. In turn this requires the respondent to satÂisfy the Board that the reasons advanced for the discharge are the only reasons and that these reason are not tainted by anti-union sentiment. The Board dealt quite fully with the implications of this requirement in paragraphs 5 through 8 of its decision and it serves no purpose to repeat them here. Paragraph 7 in particular deals with what might have been the result if the respondent had based its decision on wrong information; while paragraph 8 reÂfers to the complainant's responsibility to bring forward evidence to establish the presence of anti-union sentiment in circumstances where the respondent's explanation is devoid of any evidence of its existence. In the case at hand the complainant did not call any evidences relying solely on the respondent's evidence.
The issue before the court, on the other hand, was whether Riddell was guilty of the charge laid by the police. For the court to find Riddell guilty it would have to have been satisfied beyond a reasonable doubt that he had committed the offence with which he was charged. In other words, the court was looking at the evidence for a different purpose than this Board. According to Riddell, the court dismissed the criminal charges. For purposes of illustrating the difference in the issue before the court and this Board, assume the court had found Riddell guilty before the Board heard this complaint and the court's finding of guilt was in evidence before the Board as the reason for Riddell's discharge. If there co-existed with that reason a reason based on his union activity or an anti-union sentiment on the part of the respondent, that would constitute a violation of the Act in spite of the fact that he had been found guilty of the criminal charge in which event the Board would have directed that he be reinstated in employment.
The Board's broad discretion to reconsider its decision, which flows from section 95(1) of the Act, are very cautiously exercised because of the widely recognized need for finality. Generally the Board will not reconsider a decision unless the party seeking it:
(a) has new evidence to bring, which it would not have obtained beÂfore by exercising reasonable diligence and which, if accepted, would be practically conclusive of the issue; or
(b) wishes to make representations or objections not already considÂered by the Board.
Having regard to the fact that the complaint did not call any evidence in the hearing and there is nothing in Riddell's letter to suggest that he has evidence of the sort referred to in item (a), the first condition is not met. The only reference in the letter which suggests the second ground is that of the court's verdict. In the Board's view, paragraph 7 of the decision dealt with the effect of Ridell not being responsible for the conduct alleged against him by the respondent. Thus, the Board has, in effect, considered that representation.
In light of the foregoing, the Board is of the opinion that it should not reconsider, vary or revoke its decision of November 2, 1979 and Riddell's request is therefore denied.
The second element of his request is not a matter coming within the scope of the Board's authority in respect of the original complaint and therefore is not a proper matter on which to decide the question of whether reconsideration should be granted. However, if the second element of his concern has substance in fact (and the Board makes no presumpÂtion either way) and is founded on an unfair labour practice of an employer or person, it could provide the basis for a new complaint under the Act. If, however, his concern is based on some other alleged wrong not falling under the Act, then Riddell would have to look to the courts in a civil suit should he believe he had grounds to do so.
DECICION OF BOARD MEMBER M. J. FENWICK:
I dissent from the decision of the majority. I think Terry Riddell should have his complaint that he was discharged for union activities, which the majority dismissed last NoÂvember, reconsidered in the light of new information he provides.
The employer discharged Riddell on police information that he was charged with attempting to damage company property during a picket line incident on September 12, 1979.
Riddell now writes the board the police charge against him was dismissed by the court for lack of evidence. He rightly asks: "I must ask the board if I was not fired for union activity, why was I fired?"
In view of this development I believe Riddell deserves another day in court, as it were. I would grant reconsideration of his case.