Ontario Labour Relations Board
2791-00-U Lise Roy, Applicant v. Canadian Union of Public Employees and its Local 8888, Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; December 12, 2001
By letter dated December 6, 2001, counsel for the responding party (“the union”) indicates that its advisor and potential witness, Mr. Roger Loiselle, will be available for the scheduled January 3, 2001 consultation in this matter, and therefore the union is no longer seeking an adjournment of the consultation on the basis of Mr. Loiselle’s absence on January 3, 2001. However, counsel asks that the application be dismissed without a consultation or, in the alternative, that the consultation be adjourned in order to permit the applicant one further opportunity to file proper pleadings and to provide the union the opportunity to file what it refers to as a full substantive response.
The applicant’s pleadings are not clear in terms of material facts which would disclose that the union has breached its duty of fair representation. The Board is far from certain as to what the application is about. It would appear that at the core of it is a dispute between the applicant and her employer, District School Board Ontario North East (“the employer”) concerning the applicant’s return-to-work date following her surgery in the late Fall of 2000. The employer appears to have had concerns regarding the applicant (the merits or bona fides of which it is probably not necessary to determine in this application) that went beyond her physical ability to resume her duties following that surgery. The employer wanted more than the usual medical confirmation of the applicant’s capacity to perform the physical components of her job, before permitting her to return to work on the day she normally would have come back following her recovery from the surgery. The applicant appears to have questioned the basis for the employer’s need for, or entitlement to, that information, and resisted providing it.
This ostensibly mundane dispute appears to have escalated into somewhat of a more serious confrontation between the applicant (and her lawyer) and the employer, thus bringing the union into the conflict. The union’s response to the application indicates that it did not grieve the employer’s demand for additional medical information from the applicant (or, apparently, the postponement of the applicant’s scheduled resumption of work) because it did not believe that the collective agreement had been violated. The union sent a letter to that effect to the applicant. The union states that subsequently a meeting took place between the employer, the union and the applicant (the applicant appears to agree that such a meeting took place, but she takes issue with the union’s characterization of the meeting discussion), and that the union also met separately with the applicant that day. In any event, no grievances were filed following those meetings. According to the union, the applicant was medically examined, and returned to work on November 27, 2001.
Much of what the Board has been able to make out concerning this application is derived inferentially from the materials filed by the applicant, or from the union’s response. Very little of the Board’s understanding is due to the applicant’s assertions of fact. Those assertions are, and remain, vague and mainly unparticularized, despite the decision of the Board (differently constituted) dated November 20, 2001 in which the applicant was directed to file the particulars requested by the union on November 19, 2001. The applicant filed additional information in response to that decision but the new information does not enhance the Board’s understanding – nor, apparently, that of the party that must answer the allegations - of this matter.
In the circumstances, I am inclined to the view that the consultation scheduled for January 3, 2001 should be adjourned, and the applicant given one final opportunity to clarify the application so that the union can know the case it has to meet and respond accordingly.
The applicant is directed to specify in writing precisely what the union should have done and did not do, or what the union did and should not have done, which constitutes a violation of section 74 of the Act. In preparing the information herein directed, the applicant should specify who acted for the union and when. In developing the information herein directed, the applicant should review this decision in respect of its summary of the nature of the dispute as set out in paragraphs 2 and 3 above. If the applicant does not take issue with that summary or fails to comply with the Board’s directions to explain what the application is about, the application will be assessed as if the summary is an accurate reflection of the essence of the complaint. If this application concerns itself with other matters than those referred to in paragraphs 2 and 3 above, those matters too must be set out with sufficient clarity in the information herein directed.
The applicant is directed to provide the written information referred to in paragraph 6 above to the Board, the employer and the union on or before December 24, 2001. The union is directed to provide its response to the applicant’s written information on or before January 10, 2002, following which the Board shall give further consideration to this application, including whether it should be listed for a consultation.
The consultation scheduled for January 3, 2002 is hereby adjourned.
“Patrick Kelly”
for the Board