Teresita Lanuza v. Ontario Nurses' Association
[1997] OLRB REP. JULY/AUGUST 615
3482-96-U Teresita Lanuza, Applicant v. Ontario Nurses' Association, Responding Party v. The Toronto Hospital, Intervenor
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Paulette S. Haynes, Teresita Lanuza, Reno Sivarajah and Pauline Au for the applicant; Risa Pancer, Gail Crossman, Tim Hadsven and Darlene Barnes for the responding party; Patricia E. Murray and Pat Scott for the intervenor.
DECISION OF THE BOARD; August 18, 1997
1This is an application under section 96 of the Labour Relations Act, 1995 alleging that the responding party violated section 74.
2A consultation was held with respect to this matter on July 31, 1997. At the conclusion of that consultation, the Board determined that it could decide the matter on the basis of the arguments presented, and the materials filed, and that it was unnecessary for the parties to call any witnesses to present evidence.
3The applicant commenced working as a Cardiac Operating Room nurse at the Toronto Hospital in December, 1990. On July 19, 1991 she received a two-day suspension related to her work performance. She filed a grievance with respect to the suspension which the union took to arbitration. The arbitration lasted for eight days and a decision was issued on April 12, 1992. The decision upheld the suspension but required the hospital to provide the applicant with additional training. The applicant asked the union to file an application for judicial review with respect to the arbitrator's decision but it declined. Pursuant to the arbitration decision and as a result of discussions with the union, the applicant transferred to the Plastics Operating Room and received additional training through a preceptor. On June 29, 1992 the applicant was dismissed by the hospital which again cited work performance concerns. The union filed a grievance with respect to the discharge which it pursued to arbitration. The arbitration was before a three person panel. It took fifteen days and a unanimous decision was issued on July 24, 1996 upholding the discharge. The applicant requested the union to file an application for judicial review with respect to the decision but it declined to do so.
4The applicant also filed a complaint with the Ontario Human Rights Commission which was dismissed in 1995 on the basis that race discrimination issues would be dealt with at the arbitration which commenced in 1994. The union has filed a judicial review application with respect to this and similar decisions of the Commission.
5The applicant's complaint focuses on the failure of the union to present arguments and evidence with respect to systemic race discrimination at the grievance arbitration. It appears that she identified systemic race discrimination as a factor in the hospital's treatment with respect to both of her grievances. At some point during the discharge grievance process, she also retained her own representative to make the case to the union that it should raise race discrimination in the arbitration and should make an argument based on section 15 of the Charter of Rights and Freedoms. An organization called Nurses and Friends Against Discrimination (NAFAD) also made representations to the union with respect to raising systemic discrimination and sought standing in the arbitration to raise that issue. The union opposed NAFAD's participation in the arbitration.
6The applicant does not claim that if the systemic race discrimination issue had been raised, or if the evidence of NAFAD members about systemic race discrimination generally had been introduced as she wished, the result of the arbitration would have been different. However, it is her view that the union should have taken her instructions with respect to how she wanted the case presented and that the systemic race discrimination issue was tied to the "differential treatment" argument which the union did present. She did raise the issue of race discrimination in her examination-in-chief. The arbitration decision also discloses that at one point the panel hearing the arbitration did ascertain that she wanted to continue to be represented by the union and the representative it provided.
7The Board has carefully considered the arguments presented and the materials filed and has concluded that the union has not violated the Labour Relations Act, 1995. The union did not present the arbitration case as the applicant wanted it presented. However, the union has carriage of the grievance at the arbitration stage and is entitled, indeed is obligated, to determine how best to present the case, for the individual grievor, other members of the bargaining unit and the association itself. It is obliged to carefully consider the grievor's suggestions with respect to how to present the case, what evidence to call and what argument to make. But it is not obliged to follow "instructions" from the grievor as to how the case is to be presented provided it does fairly and carefully consider her suggestions. There does not appear to be any doubt that the union did consider the applicant's suggestions. The materials filed, including materials filed by the applicant after the hearing, indicate that the applicant's concerns were repeatedly brought to the union's attention and were discussed. However, the union made a decision to focus on other aspects of the grievance. It argued that the grievor's actions were not serious enough, if proved, to warrant discharge, it also made a "poisoned work environment" argument and a "differential treatment" argument. It is obvious upon reading both arbitration decisions that the representation of the applicant by the union was vigorous and thorough.
8For the above reasons, the Board does not find that the union's representation of the applicant fell short of its obligations under section 74 of the Labour Relations Act, 1995. This application is therefore hereby dismissed.