Ravinder Oberoi v. United Food and Commercial Workers Int’l UFCW – 333
File No.: 2515-00-U Date: November 9, 2001
Before: John Morgan Lewis, Vice-Chair.
Appearances: Ravinder Oberoi on his own behalf; Craig Flood and Bill Gillette on behalf of United Food and Commercial Workers International Union, Local 333; no one appearing on behalf of Regal Constellation Hotel c/o A Regal International Hotel.
DECISION OF THE BOARD
1This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) in which the applicant, Ravinder Oberoi, alleges that the responding party trade union (the “union”) violated section 74 of the Act. The application was filed with the Board on November 23, 2000.
2Mr. Oberoi is a member of the union and was employed by Regal Constellation Hotel (the “employer”). The union and the employer are parties to a collective agreement. Mr. Oberoi filed a grievance on January 28, 2000 with respect to a promotion of another employer with less seniority to a full-time position as a guest server. On or about May 4, 2000, Mr. Oberoi was terminated by the employer. The union filed a grievance on his behalf contesting the discharge. On June 24, 2000, the union advised Mr. Oberoi that the two grievances were being withdrawn and would not proceed to arbitration. Mr. Oberoi contends that the union’s decision to not proceed with the two grievances was arbitrary and requests the Board to order that the grievances proceed to arbitration.
3This matter proceeded by way of consultation. Mr. Oberoi was not represented by counsel. As a result, I advised Mr. Oberoi there was no requirement that parties appearing before the Board retain legal counsel. The Board often conducts hearings where one or more of the parties are not represented by legal counsel. I advised Mr. Oberoi that the Board’s role was to adjudicate the issues in dispute. The Board could not act as an advocate for or as an advisor to any party merely because that party was not represented by legal counsel. Such role would be inconsistent with the Board’s role as a neutral adjudicator. I then confirmed that the parties understood the consultation process and heard from each of them with respect both the facts and their respective positions.
Facts
4Many of the material facts were not in dispute, although the parties asked the Board to draw different, sometimes conflicting inferences in relation to those facts. The facts are set out as follows.
5Mr. Oberoi commenced employment with the employer on February 9, 1999 as a part-time guest service agent. Mr. Oberoi’s tenure was somewhat problematic. On May 14, 1999 he received a verbal warning for insubordination towards his supervisor and disrespectful conduct towards other employees. Mr. Oberoi was terminated by the employer on May 17, 1999 for poor work performance and unprofessional behaviour. The union filed a grievance challenging the termination resulting in Mr. Oberoi being reinstated and receiving a 2 day suspension. On September 18, 1999, Mr. Oberoi received a verbal warning regarding a cash shortage at the front desk. Mr. Oberoi received a written warning on January 25, 2000 for poor work performance when he double booked guests into the same room. He was subsequently suspended for 5 days on January 28, 2000 when he attempted to solicit a letter from a guest involved in the January 25th incident. Finally, on May 4, 2000 the Mr. Oberoi was terminated for what the employer described as a culminating incident on April 28, 2000. The incident involved the allegation of insubordination, unprofessional conduct and poor work performance. The manner in which the union addressed Mr. Oberoi’s termination forms part of the allegations against the union.
6The other allegations forming part of the application arise with respect to a grievance filed by Mr. Oberoi on January 28, 2000 concerning his failure to obtain a promotion to a full-time position a guest service agent. That position was filled by a less senior employee on January 4, 2000. Article 11.04, the relevant provision of the collective agreement, provides that job promotions shall be made on the basis of seniority so long as the employees in question are of equal skill and ability. The employer cited Mr. Oberoi’s poor work performance and inability to get along with fellow employees in denying the promotion.
7The employee who received the promotion remained in the full-time position until April 4, 2000 when she resigned. Mr. Oberoi was successfully promoted to the full-time position on April 9, 2000. Nevertheless, Mr. Oberoi continued to pursue the grievance. At some point, the employer attempted to settle the grievance by offering to pay Mr. Oberoi $860.00 representing the difference in wages between what Mr. Oberoi earned and the hours that he would have received if he had been promoted on January 4, 2000.
8Mr. Oberoi attended a meeting of the union’s grievance committee to determine whether his grievances should proceed to arbitration. Also attending at the meeting was the union’s legal counsel. A full discussion took place in which Mr. Oberoi presented an explanation for his grievances. Mr. Oberoi presented a written document setting out his position with respect to the two grievances as well as his claim that he was also owed statutory holiday pay, and anniversary/birthday pay. Legal counsel indicated that it was his opinion that it would be difficult to succeed should the grievances proceed