2851-99-U Edgardo Matias, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 1990, Responding Party.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: Edgardo Matias appearing on his own behalf; Carlo Levore and John Amato on behalf of the responding party; no one appearing on behalf of L.S.G. Sky Chef.
DECISION OF THE BOARD; December 4, 2000
1The style of cause is hereby amended to reflect the correct name of the responding party: “National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 1990”.
2This is an application filed pursuant to section 96 of the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (“the Act”) alleging that the responding union (“the union”) has violated section 74 of the Act.
3A consultation was held on November 29, 2000. There was no appearance by the applicant’s former employer (“the employer”). The applicant alleges the union could have represented him more vigorously than it did in relation to the employer. The union disputes this. It contends it did all it could for the applicant.
4At the consultation the union provided the information which follows. The applicant did not dispute it, other than to contend that what the union says occurred in 1998 actually occurred in 1997. Nothing turns on that difference. I therefore record the narrative provided by the union from records it received from the employer.
5The applicant was employed on June 1, 1988. He worked as a receiver at Pearson Airport. He was injured on duty during 1996 and he went on sick leave. He received Workers’ Compensation benefits for a period of time. On March 27, 1998 the Workplace Safety and Insurance Board (WSIB) terminated his benefits, deeming him to be fit to resume his pre-injury job.
6On April 29, 1998 the employer wrote to the applicant to advise him that his pre-injury job was available to him to accept. The applicant did not return to work. He applied for, and was granted, sick pay. He was due to return to work at the end of his period of sick leave, on June 20, 1998. He did not. He advised that he had car trouble.
7The applicant met with a representative of the employer on July 20, 1998 and he said he needed modified work for the period July 20 to August 2, 1998, although the applicant did not actually return to work during this period. On August 2, 1998, the applicant produced a doctor’s note saying that he should be given modified work for 2 to 3 weeks. The employer agreed to the request. The applicant returned to work on August 2, worked for approximately 6 hours, and then went home, claiming pain.
8On August 6, 1998, the applicant contacted the employer to ask for modified work in the cutlery section of the business. The employer responded that it needed proof of the applicant’s restrictions in order to accommodate him in the manner he sought. The applicant advised the employer it could contact his doctor. On August 6, 1998, the applicant’s doctor informed the employer that the standard restrictions as regards someone with a back injury applied to the applicant.
9On August 17, 1998, the applicant consulted his doctor. He was advised that he would suffer from chronic back pain and he was unlikely to recover completely.
10The applicant had not been back to work since August 2, 1998. On September 14, 1998, the employer contacted the applicant to arrange a meeting with him. On October 6, 1998 the applicant met with a representative of the employer. He requested a permanently modified job. The employer refused because, on the basis of the WSIB report it had received, there were no restrictions upon his employment and the WSIB had said he could resume full regular duties. However, the employer wrote to the applicant’s doctor on October 28, 1998, asking of his current medical status.
11There was no response to the employer’s request from the applicant’s doctor.
12Nothing further transpired until April 1999. The applicant did not return to work, nor did he contact the employer. In April 1999, the applicant’s wife brought a doctor’s note which explained that the applicant was fit for regular work. The applicant was apparently willing to return to regular work.
13The employer informed the applicant he would have to be examined by the employer’s doctor before he resumed work. An appointment was arranged for the applicant on April 16, 1999.
14The applicant failed to attend the appointment with the employer’s doctor. A further appointment was arranged for May 14, 1999. The applicant was examined by the employer’s doctor, who found that there were no abnormalities, no restrictions should apply and the applicant was fit for normal duties.
15On June 15, 1999, a representative of the employer spoke to the applicant and advised him that a meeting would be set up to discuss arrangements for his return to work. The applicant responded that he would contact the union. He did not do so.
16On June 23, 1999, a meeting was scheduled by the employer with the applicant for June 25, 1999. Shortly before the meeting on June 25, 1999, the applicant advised that he could not attend. The meeting was postponed to July 6, 1999.
17On July 5, 1999, the applicant’s wife phoned the employer and left a message to say the applicant could not make the meeting on July 6. She left a phone number.
18On July 6, 1999, the employer tried to phone the applicant to re-schedule the meeting. The applicant’s regular phone line was no longer in service, and the number left by the applicant’s wife proved to be a wrong number.
19On July 8, 1999, the employer made a further effort to contact the applicant, but the number proved again to be a wrong number.
20On July 19, 1999, the applicant phoned the employer to schedule a meeting. The meeting was arranged for July 23. At the time appointed for the meeting there was no appearance by the applicant. He did not phone to cancel. The employer tried to phone him, on July 26 and August 10. Each time the employer was told it was a wrong number.
21On August 19, 1999, the employer decided to close the applicant’s file; to treat him as no longer employed. A letter to that effect was sent to him by registered mail.
22On August 25, 1999, the employer received a voice mail message from the applicant, who left a new phone number.
23On August 31, 1999, the employer phoned the applicant and advised him that his file had been closed. The applicant said he had not received the letter from the employer to that effect. The employer checked and determined that a card concerning the registered letter of August 19 had been left at the applicant’s home, but he had failed to pick up the letter. On September 9, 1999, the employer sent a copy of the original letter to the applicant by registered mail.
24On September 1, 1999, the applicant contacted the union for the first time. A grievance was filed on his behalf. The applicant instructed the union to try to obtain a severance package for him. The union’s representative made several attempts to persuade the employer to give him a severance package, but the employer adamantly refused. There is no provision for severance pay under the collective agreement between the union and the employer.
25The applicant feels the union could have done more for him. That may be so, but it does not answer the question posed by this application. That question is whether the union has acted in a manner in relation to the applicant which is arbitrary, discriminatory or in bad faith. There is no evidence of that. The union was brought into this matter at a very late stage, after the applicant had allowed his relationship with the employer to deteriorate to the point at which the employer could reasonably conclude that he had no further interest in resuming work, and that he had abandoned his employment.
26It ought to have been clear to the applicant at various stages in the saga following the WSIB declaring that he was fit to resume normal work that he ought to have met with the employer and provided proper medical information as to the poor state of his health if he intended to obtain modified work. Alternatively, if he was fit to work, he ought to have made clear arrangements to return to work. There were occasions in October 1998, in April 1999 and thereafter when he could have resurrected his employment had he made some effort to deal with the matter, meet with the employer and provide the information sought by the employer regarding his health. He particularly had an opportunity to resume work after he was examined by the employer’s doctor in May 1999, but he repeatedly failed or neglected to attend the meetings arranged with the employer to discuss his return. His neglect of his employment, his evident disregard for his job security, were such that he put his employment at risk. Eventually the employer was not prepared to try any longer to meet with him in order to accommodate him. He lost his job, effectively through his own default. It was then that he called in the union to try to resurrect his employment. By then it was too late for the union to do anything useful for him. It could appeal to the employer, as it did, that he get some acknowledgement of his relatively long service for the employer, but at that stage there was no lawful obligation on the employer to pay the severance package he sought.
27The union acted for the applicant when it was informed of his predicament. It did not act arbitrarily, nor did it discriminate against him, nor show bad faith. Its failure to accomplish anything for him does not detract from its effort to do so. In the circumstances there was nothing unlawful in the union’s conduct and no violation of section 74 of the Act. The applicant’s predicament is, unfortunately, of his own making. He has been the architect of his own misfortune and the union cannot be blamed for it. The application must fail. It is dismissed.
“Christopher J. Albertyn”
for the Board