3450-99-OH Cheryl Sweiger, Applicant v. Toronto Transit Commission, Joe Haffey, J. Thompson, Shelagh Quigley, Gary Webster and Richard Ducharme, Responding Parties.
0046-00-U Cheryl Sweiger, Applicant v. Amalgamated Transit Union, Local 113, Responding Party.
BEFORE: M. A. Nairn, Vice-Chair.
DECISION OF THE BOARD; May 24, 2000
Board File No. 3450-99-OH is an application brought pursuant to section 50(1) of the Occupational Health and Safety Act (the “OHSA”) wherein the applicant alleges that she has been penalized for exercising rights under that Act (the "reprisal complaint”). Board File No. 0046-99-U is an application brought pursuant to section 74 of the Labour Relations Act, 1995 (the “Act”) wherein the applicant alleges that her trade union has failed to represent her in a manner that is not arbitrary, discriminatory or in bad faith (the “duty of fair representation complaint”).
In Board File No. 0046-99-U the trade union has asserted that there is no prima facie case made out on the applicant’s pleadings. I have reviewed the application and the material filed. For purposes of such a motion the Board must assume the facts as pleaded to be true and provable and ask whether or not such facts make out an arguable case for the remedy requested. The remedy requested is an order directing the union to pursue the grievance dated March 3, 2000 to arbitration. On the basis of the material filed, and assuming for purposes of the motion that it is true and provable, I am satisfied that there is an arguable case made out for the remedy requested. That motion to dismiss the application in Board File No. 0046-99-U is therefore denied.
In the reprisal complaint the employer asserts as a preliminary matter that the applicant cannot proceed as she has elected to pursue the issues in the complaint through the grievance procedure, and further, that the grievances have been resolved. In the duty of fair representation complaint the applicant asserts that the trade union has failed to pursue her grievances to a Step 2 grievance meeting. The trade union defends itself by asserting that a settlement of the grievances was reached at the Step 1 meeting and that there is therefore no basis to pursue them further. The applicant disputes firstly that the grievances reflect the matters arising under the reprisal complaint and secondly, that any settlement was in fact reached. The issue therefore of the scope of any grievances and the existence and/or nature of any settlement of those grievances is in issue in both cases.
Thus it does appear that these two complaints raise, at least initially, certain of the same issues. Although the Toronto Transit Commission has not filed an intervention in Board File No. 0046-99-U, it is entitled to participate as a party in that proceeding as it may be affected by any remedy successfully obtained. Similarly, while the trade union may not be a formal party to the reprisal complaint, it may have an interest in the assertion of any settlement of grievances. In any event, it makes no sense for the Board to hear evidence twice concerning the scope of the grievances at issue and whether there was any settlement which may have an impact on both complaints. The fact that Board File No. 0046-99-U would normally be dealt with by way of a consultation is insufficient, in these circumstances, to warrant keeping the matters separate. The same issue lies at the root of both, best dealt with through a hearing process. I am of the view therefore and I hereby direct that these matters be listed for hearing together.
These matters are hereby referred to the Registrar for processing in the normal course and in accordance with this decision.
“M. A. Nairn”
for the Board