Ontario Labour Relations Board
File No.: 1173-99-U Date: May 23, 2001
Between: Janet Eta, Applicant v. Canadian Union of Public Employees (CUPE), Local 416, Responding Party v. Toronto Public Library Board, Intervenor.
Before: Stephen Raymond, Vice-Chair.
Appearances: H. Kopyto for the applicant; Doug LeFaive, Ian Thompson, Thea Adams and Brandon Haley for the responding party; Landon Young, Annabel Kennedy and Dorothy Cammaert for the intervenor.
Decision of the Board
1This is an application under section 91 (now 96) of the Labour Relations Act, 1995 ("the Act") alleging a violation of section 74 of the Act.
2Previous decisions in this matter have been issued on September 7, 1999, October 15, 1999, April 13, 2000, April 25, 2000, March 22, 2001 and April 26, 2001.
3A consultation with the parties was held on May 1, 2001.
4This case initially involved an arbitration of a grievance filed by Ms. Janet Eta ("Ms. Eta") arising from the decision of the Toronto Public Library Board to transfer Ms. Eta and her subsequent unpaid leave. The matter was referred to Arbitrator Brandt. The trade union and the employer engaged in a mediation/arbitration process before Arbitrator Brandt. As a result of mediation, the parties agreed that Ms. Eta would return to work effective February 8, 1999. The parties disagreed on the issue of compensation and that matter was arbitrated. In an arbitration decision dated March 12, 1999, Mr. Brandt determined that there would be no compensation for the period that Ms. Eta had been away from the workplace. There was no mention of whether there was any compensation for the period between the intended date of reinstatement and the date of the decision.
5The matter came before the Board. In a preliminary decision dated October 15, 1999, the Board exercised its discretion and dismissed Ms. Eta's application except for the issue of whether the trade union had violated the Act when it allegedly failed to pursue compensation for the Toronto Public Library Board's alleged violation of the mediation agreement. That issue came before the Board. In its decision of April 25, 2000, the Board indicated at paragraphs 3 and 4 that:
The remaining issue is a claim for compensation by the applicant for the period February 8, 1999 to April 19, 1999 resulting from an award of Arbitrator Brandt dated March 12, 1999. This issue was scheduled for a consultation hearing to take place on Wednesday, April 19, 2000.
On the undertaking of the union to remit the issue back to the Arbitration Board (the parties agreed that Mr. Brandt could sit alone) and on the undertaking of the employer not to object to the issue being remitted to Arbitrator Brandt, this matter is adjourned sine die for a period not exceeding one year. Unless within that time any of the parties request that the Board proceed with the matter, it will be deemed terminated without any further notice to the parties.
6At the subsequent arbitration hearing, the trade union asserted that the applicant should receive compensation for the full period between February 8, 1999 and April 19, 1999. Arbitrator Brandt determined that the applicant was only entitled to compensation for the period after the date of his arbitration award so he awarded Ms. Eta compensation for the period from March 12, 1999 to April 19, 1999.
7The applicant returns to the Board claiming a continuing violation of the Act and requests compensation for the period of February 8, 1999 to March 12, 1999. The allegation is, quite simply, that the trade union violated the Act when it failed to take action on or after February 8, 1999 to require the Toronto Public Library Board to reinstate her or failed to encourage Arbitrator Brandt to issue his award.
8Having heard the representations of the parties, the Board hereby exercises its discretion not to inquire further into the application. Rightly or wrongly, the trade union did nothing after February 8, 1999 to secure Ms. Eta's return to the workplace. Both the trade union and the Toronto Public Library Board were waiting on Arbitrator Brandt. Even if it was not right of the trade union to do so, they did not violate the Act by failing to contact an arbitrator to encourage the issuance of his award. Further, Ms. Eta could have done something to hasten her return to the workplace. When the Board asked her at the consultation if she did anything on February 8, 1999 to return to work she said that she did not. She did nothing the following day. In fact, based on a review of her application, there is no indication that Ms. Eta ever contacted the trade union during the period February 8, 1999 to March 12, 1999.
9This application is dismissed.
"Stephen Raymond" for the Board