Ontario Labour Relations Board
0201-00-U Mary Doughlin, Applicant v. Hotel Employees, Restaurant Employees Union, Local 75, Responding Party v. The Sheraton Centre Hotel & Towers, Intervenor.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; August 14, 2000
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995 ch.1 (the "Act") in which the applicant alleges that her bargaining agent, Hotel Employees Restaurant Employees (“HERE”) has violated the duty of fair representation set out in section 74 of the Act. HERE asked the Board to dismiss the application on the basis of delay and on the basis that the application failed to disclose facts which could constitute a violation of the Act.
2By decision dated July 5, 2000, the Board set out what it identified as the areas of concern in the application. The facts as alleged in the application were clearly only a partial recitation of even the events that the applicant wished to rely on. Further, the response raised certain factual issues which were not addressed in the application. The Board has a discretion under section 96 as to whether to inquire into a complaint that the Act has been violated. If there are facts which are not in dispute, and which are determinative of the application, there is no purpose in the Board and the parties expending the time and resources necessary to hold a consultation or a hearing into a complaint which has no merit.
3In its July 5 decision, the Board directed the applicant as follows:
… The applicant is therefore given leave to file any further statement she wishes to file on or before August 10, 2000. A copy must be provided to the Sheraton and to HERE. The applicant should be advised that the Board has more than sufficient medical evidence on hand. No party doubts the very real nature of her medical condition, nor is her sincerity about her desire to work notwithstanding that medical condition in question. The issue that the Board wishes the applicant to address is what, if anything, she asked her union to do after receiving the letter from the Sheraton in January 1997 and her request for assistance from the HERE in October 1998. If the applicant does assert that she contacted the Union the Board needs to know what form the contact took (letter, telephone call, direct meeting) and the name of the official of HERE with whom she dealt.
If the applicant fails to respond, or if in doing so she declines to contradict or qualify any fact alleged in the response of HERE, those facts as alleged will be deemed to be true and a final decision will be made on that basis. …
4On August 9, 2000 the Board received the submissions of the applicant. Contrary to the Board’s direction, she did include more medical evidence. She does not contradict the facts alleged in the response of HERE. The only new matter which she seeks to add to the pleadings is as follows:
After eighteen years of service to my Employer and Union Dues paid to HERE, my union failed to help me. I lost trust in HERE’s ability to represent me and for that reason, I did not contact HERE until October of 1998. After receiving information that HERE was operating under new management, I decided to make contact to see what could be done regarding my employment and issues concerning the Sheraton Centre.
As noted in the earlier decision, this “change in management” occurred in 1994.
5These submissions do not change the nature of the essential facts or the characterization of those facts set out in the decision of July 5, 2000. The Board finds that the applicant delayed unreasonably after being discharged by the Sheraton Centre in 1997 in contacting her union, HERE. The delay of 21 months is not adequately explained. Further, the Board finds on the basis of the facts pleaded or admitted, and the documents filed, that the real focus of the applicant is her WSIB claim, or some other form of financial compensation from her former employer. She has turned her attention to HERE only when those claims appeared to be unlikely to produce a desired resolution. For the reasons given in the City of Mississauga, [1982] OLRB Rep. March 420, quoted in the July 5, 2000 decision, the Board exercises its discretion to decline to inquire further into this application.
6This application is dismissed.
“David A. McKee”
for the Board