Ontario Labour Relations Board
File No.: 2243-99-U Date: August 1, 2000
Between: Tadesse Gebremariam, Applicant v. Local 4400, Canadian Union of Public Employees, Responding Party v. East York Board of Education, Intervenor.
Before: Russell Goodfellow, Vice‑Chair.
DECISION OF THE BOARD
1The Board is in receipt of various submissions and correspondence with respect to this matter. From the correspondence, the Board understands that the present status of the application is that the applicant is intending to seek alternate legal counsel to attempt to pursue remedies in the courts rather than under the Labour Relations Act, 1995 (the "Act"). This status appears to be the product of two factors:
- a decision by the Board dated May 11, 2000 requesting submissions on the issue of delay;
- conversations between the applicant and/or his former legal counsel and the labour relations officer assigned to this case.
2The Board's May 11 request for submissions was unnecessary. As the applicant's former legal counsel pointed out, those submissions had already been received. Further, the views allegedly expressed by the Labour Relations Officer (as the applicant's former counsel appears to have attempted to explain to him) did not constitute a Board decision; rather, the Labour Relations Officer was simply performing a mediative role between the parties. This is the Board's decision.
3The applicant claims that the responding party trade union breached section 74 of the Act by "misrepresenting" him in the settlement of his discharge grievance. The applicant was employed by the intervenor as a temporary caretaker for a period of approximately nine months before being discharged on July 15, 1994 for allegedly inadequate work performance. The union filed a grievance on the applicant's behalf and pursued that grievance to arbitration. Following the commencement of the arbitration hearing and the calling of the employer's evidence, the parties engaged in settlement discussions. Those discussions appear to have resulted in an agreement between the parties that was reduced to writing and signed on May 11, 1995. The settlement called for the applicant's discharge to be replaced by a letter of resignation and for the applicant to be paid $5,000. On May 12, however, the applicant asked the employer to release him from the settlement on the basis that he had not properly understood it. The applicant claimed to have been operating on the belief that he was to receive $30,000 rather than $5,000. The employer rejected the applicant's request and, apparently following receipt of a letter of resignation from the applicant, provided him with a cheque in the amount of $5,000. The applicant never cashed the cheque.
4The applicant filed this application on November 9, 1999, approximately four and one half years after the events in question. Not surprisingly, the trade union and the employer have asked that the application be dismissed for reasons of delay. The applicant, through his former legal counsel, responded to that request. The applicant has taken the position that he was suffering, and perhaps continues to suffer, from certain psychiatric difficulties that prevented him from properly assessing his legal situation at the time that his grievance was being dealt with and that prevented him from filing a timely complaint. In support of these assertions the applicant filed lengthy medical documentation describing the emotional and mental turmoil that he was experiencing before and after the date of the settlement. (The applicant's condition appears to have been the product of certain other events in his life that need not be recounted here.) Included among the medical documents is a report from a physician at the Clark Institute of Psychiatry, dated January 27, 1995. This report indicates, among many other things, that options should be explored "to help [the applicant] handle his current legal situation as he may be too impaired to handle them (sic) effectively".
5The Board is sympathetic to the applicant's personal circumstances and is in no position to suggest that his concerns about the events of May 1995 are without merit. However, that is not the issue here; the issue here is the time that has passed from the date of the events in question and the obvious prejudicial effects that this would have on the trade union, the employer and other employees if the application were allowed to go forward. In this regard, the Board has long said that the time for filing applications under section 74 of the Act is to be measured in months rather than years. This is because the workplace does not stand still: decisions are made, rightly or wrongly, on the basis of the existing state of affairs, the rights of other employees become vested and the Board is unable to turn back the clock. This is, of course, in addition to all of the usual (but no less significant) difficulties associated with attempting to litigate events more than five years after the fact, especially when no notice of a complaint has been given in the interim.
6As for the applicant's alleged inability to file this application in a timely manner, the Board notes that he was able to file a complaint with the Ontario Human Rights Commission against the employer in 1996 and that that complaint was dismissed on February 12, 1997. Thereafter, the applicant waited another thirty-three months before turning his attention, for the first time, to the union. This kind of delay is extreme and, in the circumstances, the Board exercises its discretion to decline to inquire into the matter.
7As noted previously, it appears that the applicant never cashed the cheque that the employer provided to him. Although the applicant still appears to be attempting to obtain some form of relief from the original settlement, the employer may wish to consider providing him with a new cheque in the original amount.
8The application is dismissed.
"Russell Goodfellow"
for the Board