[1995] OLRB Rep. September 1147
0913-95-U Communications, Energy and Paperworkers Union of Canada, Applicant v. Atlantic Packaging Products Ltd., Responding Party
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Melissa Chronic, Ray Bowman and Judy Clement for the applicant; W. J. Hayter, Tracey Starrett and Sencar Tuncay for the responding party.
DECISION OF THE BOARD; September 26, 1995
INTRODUCTION
1This is an application under section 91 of the Labour Relations Act in which the applicant (hereafter referred to as "the union") alleges that the responding party (hereafter referred to as 'the company") violated the Act by terminating the employment of Judy Clement. Given the nature of this application, the Board considered it appropriate to issue a "bottom-line" decision. On July 21, 1995 the Board found that the company had violated the Act and made the following orders:
“... the Board hereby:
a) declares that the responding party has violated sections 65, 67 and 71 of the Labour Relations Act;
b) directs that Judy Clement be reinstated to employment in a position with the responding party at her former rate of pay. (The applicant asked only that Ms. Clement be reinstated to "a position" not her former position.);
c) directs that Judy Clement be compensated by the responding party for losses of income and benefits arising from the termination of her employment;
d) directs that the responding party post for 60 consecutive days in conspicuous places in the workplace the Notice to Employees attached as Appendix "A" hereto [not reproduced here]."
This decision sets out the reasons for the above orders.
2The parties called a number of witnesses whose testimony occasionally conflicted on material points. In reaching its findings of fact, the Board has evaluated the testimony of the witnesses according to the usual factors including their demeanour while giving evidence~ the clarity and consistency of the evidence given, the ability to recall events and to resist the tug of self-interest, as well as what makes most sense in the circumstances.
3Mid-way through the company's case, the union sought to amend its application to include further particulars with respect to Ms. Clement's support for the union. However, the Board did not consider it appropriate to permit the applicant to amend its application at that point in the proceedings. The company was required to call its evidence first due to the reverse onus in applications of this nature. It had previously requested that the union provide it with further particulars prior to the hearing and the union had, to some extent, complied. The responding party was entitled to know the case it had to meet before commencing to call its evidence. That is one of the primary purposes of the Board's rules with respect to pleadings. In this case, the particulars which the union sought to add referred to an event which one of the company's witnesses who had already testified was alleged to have seen. That witness would have had to have been recalled and the company would have had to adjourn the hearing to investigate the new particulars, some of which related to an individual who was no longer an employee - The company had called its evidence and organized its case in reliance on the pleadings which had been filed. The union's only explanation for not filing the particulars earlier is that its advisors had just remembered them. In these circumstances, the Board concluded that it was not appropriate to permit the applicant to amend its pleadings.
DECISION
4The Board's approach to complaints of this nature was outlined in Barrie Examiner, [1975] OLRB Rep. Oct. 745 which was referred to by both parties. The relevant passage states as follows:
- What then is the extent of the burden of proof that has been shifted by statute to the respondent? The Act speaks of the burden of proof "that any employer.., did not act contrary to this Act". In its earlier decisions, this Board has stated that, even if only one of the reasons for a discharge related to union activity, the discharge would nevertheless constitute a violation of the Act. For a review of this jurisprudence, see Delhi Metal Products Ltd. [1974] O.L.R.B. 450. In other words, the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts - first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.
5In this case, the company claims that