1864-99-U Mary Magro, Applicant v. Local #1497 Communications, Energy & Paperworkers Union, Responding Party v. MacMillan Bathurst Inc., Intervenor.
BEFORE: Laura Trachuk, Vice-Chair.
DECISION OF THE BOARD; March 27, 2000
This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding party (referred to as the “union”) violated section 74.
The allegations in the application are somewhat confusing and refer to incidents in 1989 and 1996. In its response to the application, the union asserts that the allegations in the application could not support a determination that it violated the Act and it asks that the matter be dismissed without a consultation. In a decision dated March 6, the Board directed the applicant to file submissions in response to the union’s request and in particular to “identify any of the facts contained in the response with which she disagrees”. The applicant was to file submissions with the Board and to provide copies of them to the other parties on or before March 20. The submissions were received on March 23 and do not indicate that they were provided to the other parties. However, given the Board’s determination that the application should be dismissed without a consultation the Board need not decide if there should be any consequences for those omissions.
The submissions filed by the applicant do not indicate that she disagrees with any of the facts outlined in the union’s response. The submissions allege that the union has not advised her of her rights and options and has “worked with” the company. She claims that the union told her she should be entitled to disability benefits from the company because she is receiving Canada Pension Plan benefits. She also includes a letter from a doctor dated October 1999, which indicates that she is unable to work.
The facts, however, do not disclose any basis upon which the Board could find that the union violated section 74. The applicant went off work with a disability in 1989. She received workers’ compensation benefits and eventually a pension under the (now) Workplace Safety and Insurance Act. It was determined that there was no work she could do for the intervenor. The Workplace Safety and Insurance Board determined that she did not qualify for an education program. In April 1996, the intervenor advised the applicant that she was being terminated as she was unable to return to work. She was advised of her options with respect to her retirement pension. However, in June 1996 the union met with the intervenor to discuss the applicant’s termination and Robert Smart, its business representative, suggested that she might qualify for a disability pension under the intervenor’s pension plan. It was agreed that the intervenor would not terminate the applicant’s employment pending the determination of her entitlement to a disability pension.
The terms of the disability pension require that an employee be determined to be totally disabled and incapable of engaging in any occupation or employment by a doctor of the intervenor’s choosing and one of the union’s choosing. If there is a disagreement between the two doctors then a third one is to decide. The union eventually persuaded the applicant that pursuant to the terms of the plan she must submit to an examination by a doctor of the intervenor’s choosing. The doctor chosen by the intervenor determined that she was not disabled from engaging any occupation or employment. She was then examined by her own doctor who also found that she was not totally disabled from engaging in any occupation or employment. As a result the intervenor returned to the termination process in March 1999. The union advised the applicant that as the requirements of the disability pension plan had been complied with there was no longer anything it could do for her.
The applicant is not claiming that she wanted to return to work in March, 1999 and in fact she has submitted a letter from a doctor dated October 1999 that says that at that time she was totally disabled. Unfortunately, the company had complied with the provisions of the disability pension plan by March 1999 and there was no basis for the union to file a grievance at that time. The applicant was not claiming that she could return to work for the intervenor but she did not qualify for a disability pension which is only available to an employee who is disabled from working at any occupation and employment.
There is therefore no basis on which the Board could find that the union violated section 74 of the Act. It did not represent the applicant in any way which was arbitrary, discriminatory or in bad faith. The Board, therefore, does not consider it appropriate to set this matter down for consultation. This application is therefore, dismissed.
“Laura Trachuk”
for the Board