Steve Carboni v. Ontario Public Service Employees Union, Local 438, 2000 CanLII 3189

Ontario Labour Relations Board

1727-00-U Steve Carboni, Applicant v. Ontario Public Service Employees Union, Local 438, Responding Party v. Ministry of Correctional Services (Rideau Correctional and Treatment Centre), Intervenor.

BEFORE: Christopher J. Albertyn, Vice-Chair.

DECISION OF THE BOARD; October 30, 2000

1. This 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. A response has been filed by the union and an intervention by the employer.

2. The union and the employer contend the application does not make out an arguable case. They ask that it be dismissed without a hearing. To consider the request, it is necessary to treat all of the allegations in the application as true and provable, and then determine whether they make out a case for any of the relief sought by the applicant. The narrative which follows is therefore drawn from the application and it is treated as the truth.

3. The applicant is a Cook 2 (Unclassified). He works at the Rideau Correctional and Treatment Centre in Merrickville, Ontario (“the facility”). He has been given stress leave for the period August 31, 2000 to October 31, 2000 by his doctor on account of circumstances at work.

4. The application was filed on September 11, 2000. It relates primarily to two incidents which occurred in January and February 2000. The first involved a meeting with the Superintendent of the facility on January 20, 2000. A union representative was present. The purpose of the meeting appears to have been to discuss what management saw as the applicant’s inability to get along with his fellow staff members in the kitchen area. During the course of that meeting, he told the Superintendent that he would not be attending a Dietary Seminar on January 26, 2000 because of a prior engagement.

5. On February 16, 2000 a “Pre-Disciplinary meeting” took place. A union representative was present with the applicant. It concerned whether the applicant had told the Superintendent of his anticipated absence on January 26, 2000. As a result of the meeting, the applicant received a non-disciplinary letter of counselling.

6. The applicant complains that he was not properly represented by the union at the meetings with management on January 20 and February 16, 2000. He feels the union representatives should have been more assertive on his behalf. The applicant did not file a grievance in respect of anything that arose in the relevant period, despite, it seems, being aware that he could have filed a grievance.

7. The applicant suggests that his stress leave is partially attributable to the union’s failure to represent him properly.

8. It is difficult for a union to remedy the situation of an employee if he or she does not chose to file a grievance in respect of an issue over which the employee feels aggrieved. That applies in this case too. The applicant has taken no steps to challenge any perceived injustice by management. He has therefore not given the union a proper opportunity to represent him to try to remedy his dissatisfaction. Accordingly, he has no reasonable basis for his complaint that the union has not represented him fairly and there is nothing in his application to suggest that the union has not complied with its obligations under section 74 of the Act.

9. The applicant explains that he has not filed a grievance because he is concerned that he may face reprisals for doing so. An employee is entitled to file a grievance without any fear of being penalized as a consequence of doing so. Should any reprisal be taken against the applicant for filing a grievance he would have remedies at arbitration and under the Act.