Ontario Labour Relations Board
3148-00-U Minh Tan Nguyen, Applicant v. United Steelworkers of America Local 9042, Responding Party v. Regal Spring Company, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; April 17, 2001
- This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.
2 Section 74 states:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
By decision dated March 16, 2001, the Board directed the applicant to provide further particulars with respect to allegations made against the responding party union. The applicant responded by letter dated March 27, 2001. The union replied to the applicant’s submission by letter dated April 4, 2001 and by a response filed April 10, 2001 and submits that the applicant has not pleaded a prima facie case and, secondly, that the matter should be dismissed on the basis of undue delay.
It appears from the applicant’s own pleadings that the key events in this application occurred in or about September, 1998. The applicant began his employment with the intervenor, Regal Spring Company, on April 16, 1996. He states that he was injured at work but was wrongfully denied benefits by the Workplace Safety and Insurance Board. He asserts that his employment was wrongfully terminated on August 12, 1998. He filed a grievance about his dismissal on September 11, 1998. He states that the grievance was denied at Step One and the union took no further steps on his behalf. He claims that the union did not make anyone available to speak with him when he attempted to speak with a union representative after the company denied his grievance. In the next three weeks following the filing of the grievance, he made three more, unsuccessful attempts to speak with the union about his grievance.
The Board has the discretion to dismiss a complaint under section 74 on the basis of undue delay.
The Board discussed the issue of delay in The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, a decision involving a complaint under the predecessor provisions to section 74 and 96 of the Act. The Board explained the rationale for its approach as follows:
… 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 machanical [sic] 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 libility [sic] 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.
The question of whether or not a claim has been brought within a reasonable time therefore depends on all of the circumstances of the case, including the nature of the claim, the reason for the delay and whether there has been any prejudice as a result.
The Board directs the applicant to file submissions in reply to the responding party’s assertion that the application should be dismissed on the basis of undue delay. I have set out, above, the Board’s usual approach to the delay issue. It appears, based on the applicant’s own assertions, that the delay in filing this application is about two years and four months, well in excess of the normal period allowed by the Board (which infrequently exceeds about one year). The applicant therefore has a fairly heavy burden to explain why he waited such a period to file his application but he must have a fair opportunity to provide an explanation. If a satisfactory explanation is not forthcoming, the Board may dismiss the application without hearing anything further from the parties.
The applicant has until April 27, 2001 to file his submissions with the Board (and other parties herein), after which the Board will consider the matter further and may determine the issue without a hearing. If the applicant fails to file submissions within the specified time, the application will be deemed terminated.
I am seized solely with respect to the delay issue.
“Anthony Brown”
for the Board