Ontario Labour Relations Board
1469-00-U Tai Nguyen, Applicant v. Ontario Public Service Employees Union, Responding Party, v. Crown in Right of Ontario (Ministry of Health and Long-Term Care), Intervenor.
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; October 27, 2000
By decision dated October 16, 2000 the applicant, Tai Nguyen, was directed to file any submissions he wished the Board to consider in response to the request of Ontario Public Service Employees Union (the “union”) and Crown in Right of Ontario (Ministry of Health and Long-Term Care) (the “employer”) that this matter be dismissed on the basis that it fails to set out facts that establish that the union has violated section 74 or because it was filed 11 months after the union’s conduct being relied upon. The Board decision indicates that Mr. Nguyen’s submissions had to be filed no later than October 25, 2000. As of the date of this decision, no submissions have been filed with the Board by Mr. Nguyen.
Mr. Nguyen’s complaint concerns allegations that he has been discriminated against by his employer on the basis of his ethnic origin and his language and that the union did not adequately represent him with respect to a grievance filed on his behalf concerning the employer’s conduct. The union hired a lawyer to handle Mr. Nguyen’s grievance. The grievance was scheduled to go to arbitration on September 15, 1999. In advance of the arbitration, Mr. Nguyen met with the lawyer. Mr. Nguyen asserts that the lawyer refused to review the facts of the case with him and indicated that he alone would present his case and that she would make some remarks at the end. Mr. Nguyen concluded that the union had no intention of properly presenting his case at the arbitration hearing and accordingly did not attend at the hearing on September 15, 1999. The arbitration proceeding proceeded on September 15, 1999 and the grievance was dismissed.
Based on the facts as asserted by Mr. Nguyen, it is apparent that this complaint relates to events that are alleged to have occurred prior to September 15, 1999. This complaint was not filed until August 18, 2000, a full 11 months later.
Notwithstanding the Board’s invitation to Mr. Nguyen for him to do so, no submissions have been filed by Mr. Nguyen explaining the lengthy delay.
The Board’s approach to the issue of delay in filing a section 74 complaint is set out in Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420. The Board has a discretion whether or not to inquire into complaints under section 74. One of the factors which will cause the Board to exercise this discretion against inquiring into a complaint is undue delay. In determining whether a delay is undue, the Board considers such factors as: its length, the reasons for it, when the complainant was aware of the alleged violation, the nature of the remedy claimed, and whether a fair hearing has been hampered by reason of the delay.
In the case before me, Mr. Nguyen’s complaint includes events going back to 1995. The most recent event cited in the complaint is the union’s representation of him in connection with the September, 1999 arbitration. Mr. Nguyen has been aware for some time of the circumstances on which he bases his allegations. Mr. Nguyen has offered no explanation for the delay. Further, the remedy requested by Mr. Nguyen could potentially affect other employees who have been the successful applicants in positions sought by Mr. Nguyen. In all of the circumstances, it is my determination that the delay that has occurred in the filing of the instant complaint is undue.
As a result, I hereby exercise my discretion and decline to inquire into this complaint.
This matter is hereby dismissed.
“D. L. Gee”
for the Board