2445-00-U Ronald W. Marsh, Applicant v. United Steelworkers of America Local 1105, Responding Party v Gentek Building Products Limited, Intervenor.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; December 20, 2000
1This is an application filed under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 (the "Act") alleging a violation of section 74 of the Act by the responding union (the "union").
2The Board is in receipt of correspondence from the applicant's representative in respect of two procedural matters. The Board is also in receipt of a request from the union and the employer to have this case dismissed without a hearing pursuant to Rule 46 as disclosing no prima facie case. In the alternative, the union request that it be provided with particulars.
3The procedural matters raised by the applicant's representative concern the late filing of the union's response to the application and the faxing of the employer's response and intervention.
4According to the Certificate of Delivery, the application was hand delivered to the responding parties on November 17, 2000. The response and/or intervention was due on December 1, 2000. The responding employer (the "employer") filed both a response and an intervention in a timely fashion. The union did not file its response until December 5, 2000, two days late. Further the union did not provide the applicant's representative with a copy of the response.
5It appears from the material filed as though the union's response was filed late. As the union is aware parties must file material in the way prescribed by the Rules. It is not uncommon for parties to seek leave of the Board for the late filing of material. In appropriate circumstances and depending upon the facts of the case such leave may be granted. The union did not seek such leave. However, in view of the fact that no hearing date has yet been scheduled and the response was only two days late there is no prejudice to the applicant in the Board accepting the union's response and I deny the applicant's request. The union's attention is drawn to the fact that the applicant's representative must be copied on all material as required by the Rules.
6In respect of the issue of the employer's material, the employer's obligation under the Board's Rules of Procedure is simply to deliver its material in accordance with those Rules. In the letter accompanying the employer's response and intervention counsel for the employer advises that the applicant was served with the required material. The applicant's representative does not know "which submission should be used as terms of reference" and seeks advice from the Board on this issue. It appears as though the Board's Rules were complied with. In the event that there was some confusion regarding what documents were received, counsel for the employer and the applicant's representative can resolve those issues without the assistance of the Board. The Board declines to advise the applicant or his representative on this matter.
7In terms of substantive issues, the applicant alleges that he was wrongly terminated from his employment without having been provided with proper representation by the union in respect of his termination grievance. He concedes that he was signatory to "Terms of Settlement" (dated October 13, 2000) wherein he agreed, among other things, to the settlement of his grievance in exchange for monetary compensation. The union relies upon this settlement in support of its prima face motion. The applicant asserts that he was ill, on medication and mentally unfit when he signed the settlement.
8The threshold issue to be determined at the consultation will be applicant's capacity to enter into the October 13, 2000 "Terms of Settlement".
9The applicant is ordered to produce particulars with respect to the allegation that he was impaired by mental unfitness, fatigue, and the effects of medication at the time he signed the Terms of Settlement, including: the nature and extent of any mental health problems experienced by the applicant in and around the time he signed the Terms of Settlement; the nature and extent of fatigue, loss of sleep, experienced by the applicant in and around the time he signed the Terms of Settlement; the nature of any medication taken, and any medical reports establishing that impairment had occurred and the extent of the impairment flowing from mental unfitness, fatigue, and the effects of medication. This material must be provided no later than 4 weeks prior to the scheduled day of consultation.
10The matter is referred to the Registrar to schedule a consultation.
"Marilyn Silverman"
for the Board