[1985] OLRB Rep. April 621
1313-84-U Catherine Whittaker, Complainant, v. Service Employees Union Local 268, Respondent, v. The McCausland Hospital, Intervener
BEFORE: E. Norris Davis, Vice-Chairman, and Board Members W H. Wightman and L. C.Collins.
APPEARANCES: Robert T. E. Somerleigh for the complainant; James K. McDonald and Larry O'Brien for the respondent; G. L. Firman, Barbara DeJonghe and Don Ross for the intervener.
DECISION OF THE BOARD; April 11, 1985
This is a complaint filed on August 20, 1984 alleging a violation of sections 68 and 70 of the Act in that on or about January 20, 1983, the grievor was dealt with by Larry O'Brien, President of the respondent, contrary to the provisions of sections 68 and 70 of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent discourage the complainant from filing a written statement of grievance with the MeCausland Hospital, claiming that she was unjustly discharged by the said MeCausland Hospital; further, the said Larry O'Brien failed to provide the complainant with the forms necessary to processing such grievance with the McCausland Hospital; further, the respondent failed to represent the complainant's interests in the matter of her discharge by the McCausland Hospital, although it was fully aware that the complainant believed her discharge to be wrongful and the reasons for such belief. The respondent, at the outset, moved for dismissal of the complaint on the grounds that, on its face, there had been extreme delay in the filing of the complaint such as should cause the Board to refuse to exercise its discretion under section 89, and further that the complaint, on its face, did not disclose a prima facie case of a contravention. The Board ruled that under all the circumstances the complainant should be called upon to lead evidence in respect to the circumstances surrounding the delay in the initiation of the complaint prior to an inquiry into the merits of the complaint.
The complainant was employed by the intervening Hospital since May 1979 until January 6, 1983 when a letter was written her and sent by registered mail, stating:
Your employment at the MeCausland Hospital is terminated effective Jan. 6th, 1983. You have been unable to fulfill the scheduling obligations of a casual employee.
This letter was received on January 7th or 8th and the complainant's husband then phoned Mr. Larry O'Brien, President of the respondent union, and asked if he was aware that Mrs. Whittaker had been discharged, to which O'Brien stated he was. Mr. Whittaker asked what he was going to do about it and O'Brien responded that this was a matter between the union and Mrs. Whittaker and not involving Mr. Whittaker. Mr. Whittaker then said, Okay and the conversation was terminated. During that conversation, Whittaker testified he had not asked O'Brien to investigate the matter, or to file a grievance nor did he tell him that Mrs. Whittaker wanted to file a grievance. Mr. Whittaker had no further contact with O'Brien or with anyone in the union between that one phone call and August 14, 1984 being the date on which the complaint was signed (and subsequently filed August 20, 1984). Whittaker testified his wife was incapacitated by illness from January 1, 1983 for a period of 7-14 days.
- Whittaker stated he and his wife wanted to find out why she had been terminated and accordingly retained a lawyer (not counsel now appearing). Mrs. Whittaker attended at the lawyer's office and, in the result, a letter dated January 18, 1983 was directed to McCausland Hospital reading:
I am Mrs. Whittaker's solicitor.
Mrs. Whittaker has asked me to enquire regarding the payment of termination pay. It is my understanding from talking to Ontario Ministry of Labour officials that two weeks' termination pay should be paid in Mrs. Whittaker's circumstances.
Mrs. Whittaker is also not clear as to why she was terminated. She has advised me that except for illness, she was available for her work assignments.
Would you please advise me as to your position regarding the above matters at your earliest convenience.
Whittaker, in obviously hearsay evidence, testified that the lawyer had received a verbal response to the letter from another solicitor around January 21, 1983 in which it was stated they had a lot against her and she would receive no severance pay unless it was dropped. The Whittakers were then advised by the solicitor that if they wished to proceed further, they should seek other counsel and, as a consequence, counsel appearing in this current proceeding was retained.
In the meantime, on January 26, 1983 there was a telephone conversation with O'Brien initiated by Mrs. Whittaker. Her recollection of the conversation was that after she had asked O'Brien if he were aware of her termination and he stated he was, she then asked what he was going to do about it and the response was nothing. She queried nothing? and he replied Yep - are you aware that you have to file in five days? and she acknowledged she was so aware but had been sick. She testified that O'Brien mentioned there was a lot against her without expanding on it and that at some stage she said if you are not going to help me, I'll have to go to Court and O'Brien's response was go ahead. She was asked in direct examination whether grievance forms had been mentioned in the conversation and responded no. When asked how grievance forms came to be sent to her, she stated, He said you left it too long. We will send the forms but there is no hope. In cross-examination she was asked why she did not ask the union to find out the reason for her termination rather than retaining a lawyer for that purpose and stated that it was in the conversation with O'Brien that such a request had been made and that we asked the union to find out why and then we went to Paget (the first lawyer). Mrs. Whittaker's recollection on this point is obviously faulty as the evidence is clear that the Paget letter was written some eight days before the conversation with O'Brien. She acknowledged that O'Brien had indicated it would be difficult to win a grievance and she agreed that he did not refuse to process a grievance, although later in her testimony she stated that while he had not refused, he didn't encourage me either. When asked the first time you or anyone on your behalf asked to have a grievance processed was when this complaint was filed she acknowledged that's right.
O'Brien's recollection of this phone conversation was that what he had said was that the time limits had been violated and the prospects were not too good but we will process it anyway. At the hearing he stated that the time limit was obviously going to be a cause for concern although he did not view it as a difficult problem. He stated the main part of the conversation was the matter of the timeliness of the grievance and that Mrs. Whittaker had introduced a previous disciplinary incident of some four months previously but that he did not discuss that in the context of her termination. He stated he had said I'll forward a grievance form to you. You sign it and we'll take it to the arbitration stage. He also stated that he had not been personally involved in the previous incident beyond being informed of it in a telephone conversation with Mrs. Whittaker in which he informed her he would send his assistant, Elaine Harris, to investigate the matter and that he was not personally aware as to any complaint arising out of the resolution of that matter.
On January 27, 1983, the day following the conversation, a letter was directed to Mrs. Whittaker over Mr. O'Brien's name and signed per Elaine Harris reading as follows:
Dear Mrs. Whittaker:
Further to our conversation of yesterday, please find enclosed a Grievance in regard to your dismissal from MeCauland Hospital approximately three weeks ago.
However, I wish to point out to you, that according to Article 12.01 of the Collective Agreement, a Grievance must be lodged within five days after the employee ceases to work for the Corporation.
If you wish to process this Grievance, please sign all four copies of the Grievance where it says Grievor Signature, date all four copies and deliver them to Mr. Don Ross, Administrator of McCausland Hospital.
Trusting you will find this satisfactory.
The enclosed grievance form in Mrs. Whittaker's name had been prepared by the union and detailed particulars of the proposed grievance as I grieve that I have been unjustly dismissed, and the adjustment requested as I request that I be re-instated to my former job with full compensation for all time lost during the processing of this grievance.
- No action was taken by Mrs. Whittaker to complete the grievance form or to file it and there were no further contacts by her with any union representative prior to the filing of the present complaint. In respect to the instructions in the letter of January 27th for Mrs. Whittaker to herself deliver the completed grievance to the Hospital Administrator, it is to be noted that this was in accordance with Article 12.01 of the collective agreement in effect at the time and which expired June 1, 1983 which reads:
12.01 A claim by a permanent employee that he or she has been unjustly discharge [sic] shall be treated as a Grievance if a written statement of such Grievance is lodge [sic] by the employee with the Administrator or his authorized deputy of the Corporation within five days after the employee ceases to work for the Corporation. Such Grievance will be taken up at a special meeting with the Union Committee.
As to the reason for the inaction, it was Mrs. Whittaker's conclusion that the grievance form was a useless piece of paper in view of O'Brien's comment in the letter relative to the time limits for filing. Mrs. Whittaker, when asked about not signing the form, stated O'Brien had said it had been left too long which she interpreted to mean why bother, and again, O'Brien's attitude was it was useless. I believed him when he said it was too late.
The complainant then retained Mr. Somerleigh and on April 6, 1983 an action was initiated in the District Court against the McCausland Hospital alleging wrongful dismissal. O'Brien testified that at some time prior to the actual commencement of that proceeding he had a phone conversation with Somerleigh in which O'Brien was advised of the impending court action. In that conversation O'Brien stated there was no reference to the question of union representation and that his (O'Brien's) only comment to Somerleigh was that she had access to the grievance procedure and that is what she should follow. The action in the District Court was dismissed on February 6, 1984 for want of jurisdiction in the face of the existence of the collective agreement, and the matter of costs was ultimately disposed of on March 29, 1984.
The Board's approach to complaints not filed in a timely fashion is well stated in its decision in Corporation of the Ciiy of Mississauga, [1982] OLRB Rep. Mar. 420 in paragraphs 21 and 22. It is also established that the Board, in respect to an unreasonable delay in filing a complaint will, for the most part, consider that as a factor in fashioning remedial relief. However, where in the opinion of the Board the time delay has transcended the bounds of a reasonable period and constitutes an extreme delay without mitigating circumstances, the Board will refuse to entertain the complaint. See CCH Canadian Limited, [1977] OLRB Rep. June 351 referred to in Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113. A delay, as in this case of nineteen months, is bound to carry an element of prejudice because, as has been said, memories fade and a party's ability to present a defense will deteriorate for that reason alone. This is particularly true when a party is not on notice that an action against it requiring the litigation of certain events, remains pending.
We are of the opinion that the present case is one in which the Board should exercise its statutory discretion to refuse to entertain the complaint. To whatever extent the events detailed in the complaint might be found a case for a section 68 proceeding, they anteÂdated by nineteen months the filing of the complaint and were some twenty-six months past at the time the matter was brought in for hearing. That passage of time clearly prejudices the respondent in preparing a defense, since the respondent had no indication of any kind during the entire nineteen-month period that any complaint as to its conduct was impending. In this regard it is also noted that Elaine Harris, who would have been a principal witness in the respondent's case, is no longer in the employ of the respondent. During the nineteen-month period, the complainant was represented by counsel who was, early on, advised by the respondent that rather than pursuing the matter on a claim of wrongful dismissal in the Courts, the proper course was to pursue it in the grievance procedure. While that advice was not followed, what is of significance to us is that this provided a clear opportunity for the complainant's solicitor to raise with the union any issue of the quality of its representation and the issue was not raised then or later. While the complainant must be entitled to explore and pursue all available avenues of redress, that activity in itself, not involving the respondent union and without notice to the respondent union that there was a question of the propriety of its conduct cannot, beyond a reasonable period of time, be used to justify the delay in proceeding against the union. For those reasons the complaint is dismissed.
We feel constrained to note that while the complaint sets forth that the said Larry O'Brien failed to provide the complainant with the forms necessary to processing such grievance, the evidence heard by the Board was unequivocal that such forms were provided by the respondent and received by the complainant following the telephone conversation of January 26, 1983. There is no doubt that the failure to initiate a grievance was due to the non-action of the complainant and not to the refusal of the respondent to handle it. While the complainant relates this non-action to her conclusion that the matter would not be vigorously prosecuted, we are of the opinion that O'Brien acted reasonably in pointing out to her the weaknesses in the case, while at the same time advising her that it would be pursued to the arbitration stage. It was her decision not to file a grievance in January 1983, and all the circumstances from that time to the filing of the complaint were consistent with that decision. She thereby precluded any question of the union's representation of her in the grievance procedure from arising.