Ontario Labour Relations Board
2201-01-U Lucian Jayasuriya, Applicant v. United Steel Workers of America Local 3950, Responding Party v. Continuous Colour Coat Limited, Intervenor.
2199-01-OH Lucian Jayasuriya, Applicant v. Metal Koting Continuous Colour Coat Limited, Responding Party v. United Steelworkers of America, Local 3950, Intervenor.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; December 19, 2001
1These files concern the allegations by Lucian Jayasuriya (the applicant) that Metal Koting Continuous Colour Coat Limited (the employer) terminated his employment contrary to the Occupational Health and Safety Act (OHSA) because he sought to exercise his rights to a safe workplace. The applicant further alleges that the United Steelworkers of America, Local 3950 (the union) breached its duty of fair representation towards him in failing to take to arbitration a grievance concerning his dismissal.
2Although the applicant has filed detailed pleadings, the facts he relies on can be summarized briefly. The applicant has a vision disability. He has lost the sight in one eye and experiences tearing in the other. He has been accommodated in his employment for a number of years. In his most recent job, the applicant became concerned about the safety of the operation of overhead cranes in his work area, and sought the involvement of a Ministry of Labour Health and Safety Inspector. The Inspector came to the workplace, and made an order. Shortly thereafter, or on April 5, 2000, the applicant was, to use his words “effectively terminated”. He was advised by his employer that as a result of a new letter from his family physician, adding more restrictions, the employer was no longer able to accommodate him. I understand from the material filed that the applicant has not been terminated but as there are no jobs the employer believes he is capable of performing, he is not working.
3The applicant believes that the employer has failed to accommodate him further because he raised health and safety concerns. In the applicant’s view, there are lots of jobs he could perform, although he has not specified what they are.
4The applicant alleges that although he has sought the union’s support and asked it to file a grievance on his behalf, the union has refused to do so.
5The application to the Board was brought on November 6, 2001, or more than 18 months after the applicant’s departure from the workplace.
6The Board has said in a number of cases that delay is inimial to labour relations. Disputes must be identified promptly to give parties an opportunity to address them before they become an impediment to the ongoing relationship. In the often cited Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, the Board wrote:
… In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
… A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years [emphasis added]
7The applicant submits that since his “termination” he has suffered “from physical disabilities as well as emotional illness and depression” that justifies the delay in bringing this application.
8However, as the applicant’s documents show, he has maintained a healthy exchange of correspondence with the union, with his employer, with his employer’s insurers and with his own legal counsel about his departure from employment, and related issues over the last 18 months. It appears then that the applicant’s health has not prevented him from pursuing these issues. A letter dated June 2, 2000 demonstrates that the applicant was seeking to negotiate, without involvement of the union, a termination package from the employer. That effort was continued by his counsel in September 2000, at which point counsel to the employer advised that since the applicant was a member of a bargaining unit, represented by the union, the employer could not and would not negotiate directly.
9The applicant also commenced a civil action against the insurers of the disability benefits under his collective agreement. Between July 2000 and October 2001 he participated in motions, retained and dismissed counsel and contested his solicitor’s claim that the matter had been settled. I note that in the Statement of Claim the applicant alleges that on April 5, 2000 “… the Plaintiff became totally disabled due to a medically determinable physical or mental impairment which prevented the Plaintiff from performing substantially any and all of the essential duties of his own occupation, and from performing any and every duty for any occupation for which he was reasonably qualified by training, education or experience. As a result, the Plaintiff ceased working as he had become, and today remains, totally disabled. ...”
10Among the avenues he has pursued is a Canada Disability Pension. In support of that application, he received a medical report dated May 17, 2001, indicating that he is “totally disabled and incapable of handling any stress or working again”.
11The information in the Statement of Claim and the medical report which the applicant put before me, are entirely contradictory to the allegations in the complaints before me. The applicant cannot maintain that he was “terminated” from employment on April 5, 2000, while his own documents say he left the workplace because was totally disabled. Similarly, he cannot complain about the conduct of the union, while trying to make his own deal with the employer.
12It appears to me that the applicant is looking for compensation or redress somewhere, and has finally landed at the Board. Section 96 of the Labour Relations Act, 1995 (the “Act”) gives the Board discretion about whether it will inquire into a complaint that a union has breached its duty of fair representation or into a complaint that an employee has been penalized for exercising his rights under the (OHSA). As set out above, the Board routinely declines to inquire into complaints that are not made in a timely way. The Board is not satisfied that the applicant has justified the 18-month delay on the basis of his health.
13I decline to inquire further into these complaints because of the delay in bringing them before the Board. These applications are dismissed.
“Mary Ellen Cummings”
for the Board