0426-00-U Rosalina Papa, Applicant v. Hotel Employees Restaurant Employees Union, Local 75, Responding Party v. Liverton Hotels International Inc., carrying on business as Metropolitan Hotel, Intervenor.
BEFORE: Gail Misra, Vice-Chair.
DECISION OF THE BOARD; December 11, 2000
1On November 29, 2000 the Board received a request for reconsideration of its decision of October 4, 2000 dismissing the applicant’s complaint that the responding party had breached section 74 of the Labour Relations Act, 1995 (the “Act”). The reconsideration application is untimely as it has been filed more than twenty days after the date of the Board's decision. The applicant seeks leave for an extension to file the reconsideration request.
2Rule 96 of the Board’s Rules of Procedure states:
No request for reconsideration will be considered where it is filed more than twenty (20) days after the date of the Board’s decision, except with the permission of the Board.
3The applicant claims that she could not file her application in a timely manner because it took some time to qualify for a legal aid certificate, and then for her counsel to prepare the reconsideration application. Further, it is alleged that the reconsideration application raises important policy issues, that the applicant has difficulty speaking and understanding English, and that there is no real prejudice to the responding party and intervenor.
4The Board extends the time for filing this application for reconsideration on the basis that although the applicant applied for legal aid in an expeditious manner after she had received the Board’s decision, it took the applicant some time to receive a legal aid certificate. The Board is further satisfied that counsel for the applicant needed some time to prepare the application as she was not present at the hearing. Finally, the Board agrees with the applicant that there is no real prejudice to the other parties as a result of the delay in filing the application for reconsideration.
5The applicant claims that the Board should reconsider its decision because she had difficulty understanding and speaking English and that she was therefore disadvantaged in making her submissions. It is further alleged that she did not have the benefit of counsel at the hearing while the responding party and intervenor were represented by counsel.
6The Board heard at length the applicant’s submissions, she participated fully in the hearing, as did her friends who accompanied her. The Board is satisfied that Ms. Papa understood English and was not in the least disadvantaged by the fact that English is not her first language. Furthermore, parties appear at the Board without counsel at their own peril, so that appearing without the benefit of counsel is not a ground for reconsideration. The consultation process is the Board’s least formal hearing process, the applicant was given every opportunity to speak, and indeed took full advantage of those opportunities, and the Board therefore is of the view that this is not a valid ground for reconsideration.
7The applicant claims that the decision should be reconsidered because her complaint and reconsideration application raise important issues of policy that were not addressed by the Board. The applicant further claims that the jurisdiction of arbitrators has been broadened to include human rights issues. It is therefore alleged that the Board’s failure to deal with human rights issues in the context of the applicant’s complaint was an improper abdication of authority and a violation of the legislative scheme.
8The applicant has fundamentally misunderstood the Board’s jurisdiction. A duty of fair representation complaint consultation is not a grievance arbitration and the Board is not sitting as an arbitrator. Section 48(12)(j) of the Act specifically states that “an arbitrator or the chair of an arbitration board” has the power “to interpret and apply human rights and other employment-related statutes …”. The Board was not sitting as an arbitrator or chair of an arbitration board in considering whether the union had represented the applicant in a manner that was arbitrary, discriminatory or in bad faith, contrary to section 74 of the Act.
9It appears that the applicant is also alleging that she did not have the opportunity to make representations on the significance of an arbitrator’s jurisdiction over human rights issues in determining whether the union complied with its duty of fair representation.
10The original application filed by the applicant was prepared and filed by a lawyer acting on behalf of the applicant. The pleadings include a ten page, 42 paragraph document with a 31 tab book of documents relied upon by the applicant. This is not an applicant who did not know what she was doing and did not have any assistance. What the applicant claimed in her pleadings was that she was discriminated against in the allocation of hours and type of job as compared to her fellow employees. She did not claim that the discrimination was due to her gender, ethnic origin or race, but rather that she was treated differently than were her other colleagues who were less senior to her.
11At the consultation Ms. Papa never claimed that there had been a human rights violation by the employer in the allocation of hours or in the union’s representation of her interests. For the first time, at the consultation, she did claim that she had been “harassed” by the employer since 1998. Her application did not include this as a matter complained of, and the responding party and intervenor had therefore not had an opportunity to respond to any allegations before the hearing. Even in her submissions to the Board at the consultation Ms. Papa did not particularize this new allegation, but simply stated repeatedly that the employer had been harassing her. The Board declined to consider this new ground for reasons explained in the October 4th decision.
12It is a basic rule of natural justice that parties must have the opportunity to know what the case is that they must meet before coming to a hearing or consultation. The Board’s Rules of Procedure require that an application contain a detailed statement of all the material facts on which an applicant relies (see Rule 26(d)). Rule 42 outlines that a person will not be permitted to present evidence or make any representations at a hearing or consultation about any material fact that was not set out in the application unless the Board gives its permission. Ms. Papa never requested the Board’s permission to amend her application to add this new area. However, even if she had done so, the Board would not have permitted such a significant amendment at that late stage. In this instance, it would have been a gross breach of the Rules and of the rules of natural justice to have permitted Ms. Papa to add a whole new area of complaint at the consultation when the other parties had not had notice of the amendment, had no idea what Ms. Papa was specifically alleging, and had not had the opportunity to prepare any responses.
13In a similar vein, a request for reconsideration is not an opportunity for an applicant to raise new matters that could have been raised, but were not, at the hearing. At the hearing the applicant claimed that the employer had harassed her since 1998. The Board has noted above, and in its original decision, why it declined to consider that allegation. At that juncture she never mentioned that she had a Human Rights Code basis for her claim of harassment. It is simply too late to make this argument now. The applicant had the benefit of counsel when she filed her original complaint and never raised this matter, she has had a full consultation with respect to her application, and the Board sees no reason to reconsider its decision because Ms. Papa is now of the view that she would like to allege a Code aspect to her original complaint about the employer’s actions and the union’s representation of her interests.
14Counsel for the applicant claims that the Board has misinterpreted the applicant’s evidence in its decision. Counsel for the applicant was not present at the consultation and has therefore only had the benefit of the applicant’s version of events. With respect, the Board heard from the applicant, the responding party and the intervenor, and on the basis of all of what it heard reached its decision. Simply because the applicant is of the view that the “facts” are to be viewed in a particular manner does not require the Board to accept her version. The Board is satisfied that it considered all of the parties’ submissions regarding what transpired and on the basis of what was before it reached its decision. It therefore finds no basis upon which to reconsider its decision in this respect.
15The applicant’s next allegation is that the Board had no basis upon which to state that the applicant had abandoned allegations made in her original submissions because no reference was made to them during the consultation. An application is an outline of what an applicant is claiming. It has no independent standing on its own and cannot be relied upon by the Board unless the other parties have conceded that they agree with the pleadings. The responding party and intervenor did not concede that the applicant’s pleadings were accepted as true. The consultation is the opportunity for an applicant to indicate the basis upon which all complaints are being made, so long as the applicant has raised those issues in the application and other parties have had an opportunity to respond. In this instance Ms. Papa addressed herself to some aspects of her application and not to others. The other parties responded to what she relied upon. The Board addressed each matter that the applicant raised during the consultation. Anything that she did not raise can therefore be reasonably accepted as being abandoned.
16The applicant claims that the Board should have relied upon the affidavit of Mr. Rajagopal which the applicant had appended to her application. Again, the applicant appears to be of the view that her version is the only true version that the Board should have accepted without taking into account what the other parties had to say. The Board explained to Ms. Papa at the consultation, and will again here, that the Board does not accept affidavits of persons not present at the hearing and therefore not available for cross-examination by other parties. The Board has consistently held that the trier of fact and opposing parties must have the benefit of seeing a witness in person and if necessary being able to test the validity of what has been sworn to in an affidavit. Ms. Papa did not have Mr. Rajagopal present, and neither the employer nor the union accepted the contents of the affidavit as correct. The Board’s notice to parties prior to the date of a consultation advises them that they must bring to a consultation any witnesses upon whose evidence they may be relying. Ms. Papa did not bring Mr. Rajagopal, but asked the Board to simply accept his affidavit. In the face of the other parties’ submissions about Mr. Rajagopal’s position, it was clear that they did not accept as true the contents of the affidavit, but they had no opportunity to test Mr. Rajagopal’s assertions in the affidavit because he was not at the consultation. In those circumstances the Board was of the view that it could not consider Mr. Rajagopal’s affidavit. This is hardly a matter of the Board closing its mind, but is rather a matter of natural justice.
17In a similar vein, the applicant claims that the Board should have and did not consider that 66 colleagues of the applicant had signed a petition saying that they were of the view that the applicant had been treated in a discriminatory manner and that they could not understand why the union was not pursuing Ms. Papa’s grievance to arbitration. The issue before the Board in Ms. Papa’s application was whether the union had breached section 74 in its representation of Ms. Papa. This is a matter uniquely within the jurisdiction of the Board to decide. The Board’s decision-making is not based on how many ballots are cast one way or the other. It is of no assistance to the Board in its decision-making whether 66 or more people believe that a decision should go one way or the other. The Board must consider what is before it at a hearing or consultation, the legislative mandate, and the Board’s jurisprudence in reaching its decision. The Board therefore found the petition immaterial in its assessment of whether there had been a breach of section 74 of the Act.
18Counsel for the applicant appears to be of the view that the Board was unable to deal with Ms. Papa because she is of a different race or ethnic origin and therefore appears “different”. This allegation simply has no basis whatsoever. This Vice-Chair is a person of colour and a woman and found there to be nothing much “different” about the applicant. While Ms. Papa may speak with an accent, the Board had no trouble understanding her. She expressed herself at length, had ample opportunities to make submissions at the outset, whenever the Board had any questions, and in reply. The Board is satisfied that it had the full benefit of Ms. Papa’s submissions and that her race or ethnicity were no impediment to a full consideration of her complaint.
19The applicant’s two friends who accompanied her at the hearing have filed statements that the applicant is relying upon as part of her request for reconsideration. They claim that the Board was not prepared for the hearing because it asked the applicant to put forward her case. As the Board advised all parties at the consultation, it had read all of the parties’ submissions prior to the commencement of the consultation. A consultation is when an applicant must put his or her case before the Board, and responding parties or intervenors must do likewise. That is the process. There is simply no validity to the two statements. It appears that the individuals concerned do not understand that this was the applicant’s opportunity to have her complaint heard. The Board was not mediating a resolution, but was hearing the parties’ evidence and submissions in order that it could make a decision regarding the application. There is no merit to the two statements.
20Having considered all of the grounds upon which the applicant is seeking reconsideration of the Board’s decision of October 4, 2000, the Board, for all of the reasons outlined above sees no basis upon which it should reconsider that decision. This application for reconsideration is therefore hereby dismissed.
“Gail Misra”
for the Board