Wimalaranie Rasie v. Hotel Employees Restaurant Employees Union, Local 75
1067-01-U Wimalaranie Rasie, Applicant v. Hotel Employees Restaurant Employees Union, Local 75, Responding Party v. The Sheraton Centre Hotel & Towers, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; November 5, 2001
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 alleging violation of section 74.
2The responding party and intervenor assert that the Board should exercise its discretion not to inquire further into this matter as there has been a significant delay between the time the alleged violation occurred and the time that the application was filed. On September 28, 2001, the Board directed the applicant to reply to the other parties’ submissions about the delay in filing and to indicate areas of agreement and disagreement with the facts asserted in their pleadings. The Board directed that the reply be filed by October 12, 2001.
3The applicant failed to file a reply within the time stipulated.
4The Board has discretion as to whether or not to hear an application under section 96 of the Act. The applicant’s complaint appears to be that the union refuses to file a seniority grievance on her behalf. It appears that the events at the heart of the complaint occurred in 1997 and 1998. The responding party union states that it thoroughly investigated the matter and concluded that the applicant has been accorded the proper seniority. The intervenor employer filed a detailed explanation of how the applicant’s seniority ranking was arrived at.
5Persons are expected to apply under section 96 without undue delay. The issue of delay is considered by the Board according to the facts and circumstances of each case. There is no hard and fast rule, although the Board has often stated that permissible delay is measured in “months not years”. 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.
6In the present case, there has been a delay of over three years. A delay of this magnitude exceeds that permitted by the Board and the applicant has made no effort to explain why it took so long to file the application. The delay is inherently prejudicial to the ability of the other parties to respond should this matter be scheduled for a consultation or hearing. In addition, the application does not disclose the material facts relied upon to show that the union is guilty of conduct that is arbitrary, discriminatory or motivated by bad faith. The applicant has not complied with the Board’s direction of September 28, 2001.
7For the foregoing reasons, the Board declines to hear this application. The application is dismissed.
“Anthony Brown”
for the Board