Ontario Labour Relations Board
File No.: 1931-00-U Date: July 17, 2001
Between: Darin Joseph Lindsay, Applicant v. C.A.W. Local 4207, Responding Party v. Wescast Industries Inc., Intervenor.
Before: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD
1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the "Act") that the responding party has breached section 74 of the Act.
2This application was filed on September 29, 2000. Both the responding party and the intervenor take the position that this application should be dismissed for delay in filing.
3Without fully detailing the applicant’s complaint, it arises from his termination on August 21, 1997. The mater was grieved and proceeded to arbitration. At the hearing a settlement was reached and the applicant was reinstated. One of the terms of the settlement provided that if the applicant could not perform work as set in the settlement after a six month period, the employer would be entitled to “re-institute the August 21, 1997 termination”.
4Without detailing the allegations of the applicant in full, suffice it to say that at some point the applicant because of his injury (though he felt he could work) was off work and received, according to the applicant, “short term disability from February to September 1998 when I began to receive Workman’s Compensation”.
5According to the applicant he was advised by the Union on or around September 7, 1998 that the employer “had again terminated me”. He was told by the union that the employer had “offered one a settlement in the amount $8,000.00 provided I sign an Agreement that I would in no way hold Wescast liable for the injuries to my leg”. The applicant states that he advised the union this was unacceptable.
6According to the applicant he wished to have the matter remitted to the original arbitrator. He was advised, according to the applicant, that there was nothing the union could do for him and that he should accept the settlement.
7The applicant received notice from the employer that he had been terminated. The applicant believed he was capable of returning to work and performing the duties as set out in the earlier settlement.
8According to the applicant he attempted to have the union file another grievance on his behalf, which union officials did through advising the applicant that there was little chance of success.
9Sometime in late September or early October the applicant received Minutes of Settlement dated September 30, 1998 in the mail. The terms were that the applicant was terminated effective September 30, 1998 and that the employer was to pay the applicant $8,000.00 and that all the applicant’s grievances were withdrawn and settled.
10The September 30, 1998 settlement was signed by the union officials and not by the applicant. According to the applicant he never authorized such settlement. He alleges he was shocked to receive the Minutes of Settlement. He did receive a cheque in the amount of $8,000.00.
11The applicant admits he did not call the union “as I believed there was nothing that could be done. I also believed that the Union was not assisting me or helping me in anyway, as evidenced by the September 30, 1998 Minutes of Settlement”.
12The applicant admits he cashed the cheque “as I did not know better: I was also financially strained as the short term disability I had been receiving was only approximately 60% of my regular income. I used this money to pay off debts and bills that had been accumulating”.
13The applicant states he “did not file an Application under section 74 of the Labour Relations Act prior to now for the following reasons:
a) Once I received the September 30, 1998 Minutes of Settlement I was unaware of any methods or processes to fight the matter any further. I believed that nothing further could be done;
b) In approximately March, 2000, I applied to Wescast for a highschool co-op position as part of my highschool upgrading. I took my co-op application to the Union Office as the Union had advised me that they would help out with my education in any way they could. Wescast denied me this position. It was after this incident that I began to believe that perhaps the Union had not fairly represented me;
c) In early summer, 2000, I discussed this matter with Sandy McIntyre, a local lawyer. He advised that he did not have any experience in labour law, that he would talk to some other lawyers about helping me, and that he would get back to me with respect to this matter. I waited but never heard back from him;
d) I then began making telephone inquiries and was eventually directed to the Labour Relations Board approximately one month ago. I advised the Board of my situation and was sent the appropriate paperwork”.
14The applicant also states that if required, he is prepared to repay to the employer the sum of $8,000.00 that he received.
Decision
15The Board’s policy on delay is well settled and established. Where delay is in excess of a year, the Board will generally require some kind of satisfactory explanation for the delay before it permits the matter to proceed.
16In the instance the Board must weight the reasons the applicant has given for delay in filing this application as against the possible prejudice to the responding party and the intervenor. In this instance where a settlement was reached, where the applicant cashed the settlement cheque and where the applicant did not notify either the union or the employer he was dissatisfied with the signed settlement until filing this application two years later, substantial reasons for the delay must be given.
17The Board has considered the reasons advanced by the applicant and finds that such reasons are not satisfactory in the circumstances. The applicant had ample time to acquaint himself as to the proper procedures for filing this type of application and ample time to file such application. In these circumstances the Board is of the opinion that the possible prejudice to the responding party and the intervenor outweigh any reasons advanced by the applicant for continuing with this application.
18The Board therefore exercises its discretion under section 96 and dismisses this application as being filed in an untimely manner.
“Timothy W. Sargeant”
for the Board