International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721 v. Simcoe Iron Inc.
2135-01-G International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 721, Applicant v. Simcoe Iron Inc., Responding Party.
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; November 15, 2001
1This matter is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995 (the "Act"). The referral was made on October 31, 2001. The accompanying Certificate of Delivery states that the responding party was served on October 31, 2001 by the applicant having delivered a copy of the necessary documents required by Rule 155 of the Board's Rules of Procedure to the responding party by giving them to Priority Courier on October 30, 2001 who assured the applicant that they would be delivered to the responding party no later than October 31, 2001 at 12:00 p.m. The Registrar faxed a Confirmation of Filing of a Referral of Grievance to Arbitration to the fax number provided for the responding party in the application on November 2, 2001 at 10:49 a.m.
2As of the date of this decision, the responding party has not filed a Request for Hearing and Notice of Intent to Defend/Participate. The Board's Rules of Procedure provide that, where a Request for Hearing and Notice of Intent to Defend/Participate has not been filed, the Board is not required to hold a hearing and can determine the matter with reference only to the material filed by the party referring the grievance. The applicant indicates in the grievance referral that, if the responding party failed to file a Request for Hearing and Notice of Intent to Defend/Participate, it is asking the Board to determine the referral without a hearing and with reference only to the material filed by the applicant.
3Having reviewed the grievance referral, the Board is unable to make all of the orders and declarations sought by the applicant based solely on the material filed by the applicant.
4The applicant is seeking three declarations. A declaration that the responding party is in violation of the terms of the Collective Agreement by failing to return the grievor to work following a work place injury; a declaration that the responding party is in violation of sections 3 and 7 of Regulation 259/92 under the Workplace Safety and Insurance Act, 1997; and a declaration that the responding party has violated section 2 of the Ontario Human Rights Code. The applicant seeks the greivor's reinstatement and damages for all lost wages, benefits and union dues.
5While the applicant has pleaded that it "understands" that work was available as of the date the grievor was physically able to return to work, there is no pleading to the effect that work was available for the grievor to perform throughout the period of time for which damages are being sought or as of the date the Board would be ordering the grievor reinstated. There is no pleading that would establish that others were employed while the grievor was not. In the absence of the Board being able to conclude, based on the materials filed by the applicant, that the fact is that there was work available for the grievor to perform at the relevant times, the Board is unable to make the declarations and orders sought by the applicant.
6This matter has been scheduled to be heard on Monday, November 19, 2001. The hearing will proceed as scheduled.
7I am not seized.
"D.L. Gee"
for the Board