[1980] OLRB Rep. June 821
0819-79-U Kuldip Singh Samra, Complainant, v. United Glass and Ceramic Workers of North America, Local 200, Respondent, v. Consumers Glass Company Limited, Intervener.
BEFORE: R. A. Furness, Vice-Chairman.
APPEARANCES: Michael F. Smith for the complainant; Chris G. Paliare for the respondent; James Hassell and Huntley Duff for the intervener.
DECISION OF THE BOARD; June 17, 1980
- In a decision in this matter dated September 24, 1979, [1979] OLRB Rep. Sept. 861 the Board stated in the last two paragraphs of that decision:
"The Board finds that the respondent's conduct with respect to Mr. Samra's grievance was arbitrary within the meaning of section 60 of The Labour Relations Act. Section 79(4) of the Act sets forth the remedies which the Board may provide for such a violation of section 60. Pursuant to section 79(4) the Board directs the respondent and the intervener to process Mr. Samra's grievance to arbitration.
In the event that a board of arbitration determines that compensation is to be paid to Mr. Samra, some of the compensation may be referable to delay which has been occasioned by the respondent's violation of section 60 of the Act. The Board remains seized of this complaint and will entertain representations with respect to the amount of compensation, if any, is to be borne by the respondent."
- In a decision dated January 16, 1980, a board of arbitration in a decision by the majority set aside the discharge of the complainant and substituted a suspension from February 19, 1979, to the date of the award without compensation. The decision of the majority concluded by stating:
"We direct that the grievor be forthwith reinstated to his prior classification on condition that for a period of two years from the date of this Award he not commit any acts of a similar nature as those which led to his discharge. Should he engage in any fight, assault, threat or use abusive language towards his superiors, such will be deemed to be a breach of the condition with the result that his employment will thereupon forthwith terminate.
We shall retain jurisdiction over this matter in the event that the parties experience any difficulty in the implementation of this Award including the determination of any question that may arise as to whether any breach of the imposed condition has occurred."
- In a letter to the Board dated March 20, 1980, counsel for the complainant stated:
"The decision of the board in this matter dated September 24, 1979, provided in its last paragraph that in the event that the Board of Arbitration determines the compensation is to be paid to Mr. Samra some of the compensation may be referable to delay which has been occasion by the respondent's violation of section 60 of the Act. The board therefore remained seized of this complaint and would entertain representations with respect to the amount of compensation, if any, is to be born [sic] by the respondent.
The Board of Arbitration in reinstating Mr. Samra in his employment did not make an award of compensation. However, Mr. Samra is not satisfied that sufficient effort was made to put before the Board of Arbitration the circumstances, justifing [sic] an award of compensation. Unfortunately, the union which may be liable to pay compensation to Mr. Samra, retained and instructed the same firm of solicitors that apposed [sic] Mr. Samra before the Labour Relations Board to represent Mr. Samra before the Arbitration Board. The result is an apparent conflict of interest.
On behalf of Mr. Samra I am seeking an opportunity to bring these circumstances before the Ontario Labour Relations Board for consideration pursuant to the decision of the Board. Can you make arrangements for such a hearing."
In response to the letter referred to in the preceding paragraph, the Board received letters from counsel for the respondent and the intervener. On May 13, 1980, the Board sent a Form 7, Notice of Hearing, to the parties. The notice advised the parties that a hearing for the purpose of considering the representations of the parties on the matters raised in their correspondence to the Board would take place at 9:30 a.m. on June 17, 1980.
At the commencement of the hearing in this matter on June 17, 1980, counsel for the complainant requested an adjournment of the hearing on the grounds that the complainant was in Britain. Counsel informed the Board that he had last spoken to his client on Saturday, June 7, 1980. Counsel stated that his client was under some strain and had recently come to an agreement with the intervener to terminate his employment and has received a settlement because he could no longer perform his job due to injuries. Counsel for the complainant informed the Board that the complainant's wife had informed him that the complainant had left Toronto on June 10, 1980, after leaving a message and some money for his wife. Counsel for the complainant also informed the Board that the complainant was under pressure from his wife as a result of losing his job.
Counsel for the complainant stated that he desired to call the complainant as a witness before the Board and was not in a position to proceed with the complaint in the absence of the complainant. Counsel for the complainant informed the Board that he had received notice of this hearing on May 16, 1980, and that the complainant had received notice of this hearing shortly after May 16, 1980. Counsel for the complainant stated that he had tried to arrange an adjournment with counsel for the respondent and the intervener at 3:45 p.m. on June 16, 1980.
While counsel for the intervener was initially inclined to grant the request for an adjournment when approached on June 16, 1980, at the hearing he strongly opposed the request for an adjournment. After being contacted by counsel for the complainant, counsel for the intervener contacted the intervener and discovered that as recently as Thursday, June 12, 1980, the complainant had attended at the intervener's offices and had received his severance pay as required by the collective agreement. Counsel for the intervener stated that as a result of what he now knew he would not agree to an adjournment.
Counsel for the respondent also strongly opposed the request for an adjournment and stated that as he understood the situation, counsel for the complainant has had no direct contact with his client. Counsel for the respondent stated that he was prepared to proceed and had present four lawyers who were to be called to give evidence at some inconvenience to their own practices. Counsel for the respondent confirmed that his information also placed the complainant in Toronto at least as recently as Thursday, June 12, 1980.
In response to questions by the Board, counsel for the complainant stated he could not dispute the position of counsel for the respondent and the intervener that the complainant had been in Toronto at least as recently as Thursday, June 12, 1980. Counsel for the complainant also agreed that he had no personal knowledge that the complainant was out of the jurisdiction and could not say from his information when the complainant was expected to return to Toronto.
The Board dismissed the request for an adjournment at the conclusion of the argument. It is quite clear that counsel for the complainant, through no fault of his own, is not in a position to inform the Board of the whereabouts of his client. At the very best, counsel for the complainant is in the possession of second-hand information, some of which is untrue. Counsel for the complainant made reference to personal pressure on the complainant from his wife which followed his leaving the intervener's employment. However, there is nothing before the Board to substantiate such views by counsel for the complainant. It should be remembered that counsel for the complainant has had no recent and direct contact with his client. The Board is not prepared to accept the validity of the grounds upon which an adjournment has been requested. In addition, having regard to the fact that the adjournment was requested on such very short notice and that the respondent and the intervener were prepared to proceed and opposed the request for an adjournment, such request is denied.
There was neither evidence nor representations before the Board with respect to the purpose of hearing set out in the Notice of Hearing. In these circumstances, the request of the complainant for relief is dismissed.