2645-97-U Sharda Ramadhin, Applicant v. Office & Professional Employees International Union Local 343, Responding Party v. Twin Oak Credit Union Ltd., Intervenor.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: H. Kopyto and Sharda Ramadhin for the applicant; Maureen O’Halloran and Patty Clancy for the responding party; Mary Jo Brownell and Bill Van Gaal for the intervenor.
DECISION OF THE BOARD; February 14, 2000
1This is an application under section 96 of the Labour Relations Act, 1995 (“the Act”) alleging a violation of section 74 of the Act by the responding trade union (“the union”). The applicant alleges that the union should have pursued two of her grievances: one of December 17, 1996 when the employer failed to offer available work to her; the other of January 27, 1997 challenging the applicant’s dismissal.
2A consultation occurred on October 5, 1999. Thereafter the parties were permitted to make representations in respect of advice the union received from counsel specializing in violations of the Human Rights Code. Counsel had expressed the opinion that the applicant had not been subjected to systemic discrimination by the employer. Those representations have now been filed.
3Some background is useful. The union’s staff representative investigated the applicant’s discharge. It found that the employer had documented a series of complaints, counselling, reprimands and warnings concerning the quality of the applicant’s work from May 1996 until her discharge in January 1997. There are nearly 50 entries in the period. The applicant does not dispute the litany of complaint against her; she says the reason for it lies in the systemic discrimination to which she was subjected over the period. There is also no dispute that the applicant received numerous counselling letters before she was dismissed.
4The issue of alleged racial discrimination against the applicant was raised by the applicant with the union for the first time on February 12, 1997. The union asked the applicant for information which might support the claim of racial discrimination. The applicant replied in a letter dated February 27, 1997, but the information was not sufficient, in the union’s opinion, to substantiate a claim of racial discrimination. On the basis of the information before her, the union’s staff representative concluded that the union would not be successful challenging the applicant’s discharge. As regards the applicant’s other grievance, the staff representative investigated the matter and determined that the employee with less seniority who had been used by the employer was performing job functions for which the applicant had not been trained. The union’s staff representative recommended to the union’s Executive Board that the union not pursue the grievances because there was such a poor prospect of success. The Executive Board decided not to pursue the applicant’s grievances. It was then that the application was filed.
5The parties reached an agreement concerning the applicant’s complaint on March 19, 1998. Under the terms of their agreement, the applicant and her legal agent were given the opportunity to address the union’s Executive Board to appeal the union’s decision not to pursue the applicant’s grievances.
6The applicant and her legal agent made submissions to the Executive Board. The applicant (and her legal agent) contended that the cause of the applicant’s difficulties with her employer was occasioned by racial discrimination. The Executive Board considered the submissions and decided to obtain the opinion of counsel specializing in human rights litigation as to whether, in his opinion, on the facts and information provided by the applicant and her legal agent, there was systemic discrimination against the applicant by her employer, as she alleged. As I have said, counsel’s opinion was that there was no evidence of direct discrimination or of systemic discrimination against the applicant.
7Faced with counsel’s opinion and its own consideration of the applicant’s grievances, the union decided not to pursue the grievances. This application then revived.
8The applicant’s legal agent makes a number of criticisms of the union’s counsel’s opinion that there is an absence of evidence of discrimination against the applicant. Whatever the relative merits of that criticism, the important issue as regards the union’s consideration of the applicant’s grievances is whether the union acted in a manner which was discriminatory, in bad faith or arbitrary.
9There is no suggestion by the applicant that the union discriminated against her, or that it acted in bad faith. Her challenge to the union is that it did not adequately apply its mind to the fact of the racial discrimination she alleges she suffered from the employer. The agreed facts do not support that conclusion. The union considered the merits of the applicant’s grievances at four different stages: first, the union’s staff representative investigated the grievances and formed the opinion that the union would not succeed if it pursued them; the grievances were then considered by the Executive Board which came to the same conclusion as had the union’s staff representative; the grievances were then considered again by the Executive Board after having had the benefit of the applicant’s and her legal agent’s representations concerning the existence or otherwise of systemic racial discrimination; and finally the union’s Executive Board considered the matter afresh following receipt of its counsel’s opinion on the merits of the discrimination claim, following his consideration of all of the relevant information supplied to him by the union.
10I am satisfied that the conclusion reached by the union was not arbitrary. There is no prima facie case made by the applicant that the union has failed to apply its mind adequately to the decision it made not to pursue his grievances. On the contrary, it appears that the union has investigated the applicant’s claims carefully and it has concluded, on reasonable grounds after having obtained an expert opinion, that it would not be worth pursuing the applicant’s grievances. There will be no further inquiry into the applicant’s complaint. The application is dismissed.
“Christopher J. Albertyn”
for the Board