Ontario Labour Relations Board
0234-00-U Robert Landon, Applicant v. Ministry of Transportation, Responding Party v. Ontario Public Service Employees Union, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD; August 29, 2000
This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) that the responding party has breached sections 72, 87 and 92 of the Act.
The respondent employer submits that the applicant has not established a prima facie case.
The basis of the complaint relates to an alleged submission that the applicant’s benefits were unproperly terminated by the employer. The applicant is a former employee of the Ministry of Transportation, who commenced receipt of Long Term Income Protection (LTIP) in 1996. The applicant was specifically concerned that the Dental Plan benefits had been terminated and also concerned that the Supplementary Health and Pension benefits had been improperly affected.
It appears from the pleadings that indeed certain benefits had been improperly terminated. This was corrected when the matter was brought to the attention of the employer by union counsel.
From the most recent correspondence it would appear that the applicant may still be concerned about alleged pension shortfall and still, according to the applicant, is concerned that he has not received an amended T-4 form for the year 1999.
It is alleged both by the responding party and the intervenor that there is no contribution shortfall and that the Pension Trust has so advised the applicant. There admittedly does seem to have been a mistake in the 1999 T-4 as it showed no pension adjustments. This seems to be a common problem with employees on LTIP. Both the employer and the intervenor acknowledge that the applicant should receive an amended 1999 T-4 form. Though the applicant alleges he has never received such amended T-4 form, hopefully by now such amended form has been sent to the applicant.
From a review of File No. 0218-00-U it would appear, outside of the issue of the amended 1999 T-4 form that there are no further outstanding issues. The union has received assurances from Pension Trust that there is no contribution shortfall; the benefits that the applicant is entitled to receive have been restored with no monetary loss to the applicant; and the union has been successful at arbitration concerning the appropriate escalator clause for pension entitlements. It is to be noted that leave to withdraw application 0218-00-U was granted by Board in a decision dated August 3, 2000.
The Board having reviewed the pleadings finds there is no prima facie facts pleaded that would establish that the responding party has breached section 72, 87 or 92 of the Act.
Section 72 of the Act states:
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
In regards to section 72, there is just no suggestion in the pleadings that the employer’s alleged improper actions were taken because the applicant “was or is a member of a trade union or was or is exercising any other rights under this Act” or was attempting “to compel an employee to become or refrain from becoming or to continue to be or cease to be a member … or a trade union or to cease to exercise any other rights under this Act” as is required in order to amount to a violation of this section.
Section 87 states:
(1) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,
(a) refuse to employ or continue to employ a person;
(b) threaten dismissal or otherwise threaten a person;
(c) discriminate against a person in regard to employment or a term or condition of employment; or
(d) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.
(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,
(a) discriminate against a person in regard to employment or a term or condition of employment; or
(b) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.
In regards to section 87 again there is no suggestion that the employer’s alleged improper actions were taken “because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act” as is required in order to amount to a violation of this section.
In regards to the complaint that the responding party has breached section 92 of the Act, this section only applies to a request to a trade union for financial statements, not to an employer.
As a statutory Tribunal, the Board exercises a jurisdiction conferred by the Act. This means the Board may act only on those applications which reveal some breach of the Act or otherwise trigger the Board’s jurisdiction. It is not every labour relations issue that the Board has jurisdiction to consider. Someone might have a complaint, but it may not necessarily be a Labour Relations Act, 1995 complaint. The Board will only proceed if the issues the applicant raise are or may be covered by the Act.
In the circumstances the application does not allege facts which, even if proven, could amount to a breach of section 72, 87 or 92 of the Act. The application must therefore be dismissed.
“Timothy W. Sargeant”
for the Board