Ontario Labour Relations Board
0829-01-U George Naidos, Applicant v. Amalgamated Transit Union, Local 113, Responding Party v. Toronto Transit Commission, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; August 21, 2001
This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging violation of section 74.
The applicant asserts that the responding party unfairly represented him in respect of the circumstances in which he tendered his resignation from employment after being accused of sexual misconduct with a disabled customer of the intervenor Toronto Transit Commission. The responding party and the Toronto Transit Commission strenuously dispute the applicant’s version of events. They both assert that the application should be dismissed on the ground that it does not disclose a prima facie case for violation of section 74 and, secondly, on the ground of undue delay in filing the application.
An application may be dismissed without a hearing if it fails to show a prima facie case for violation of section 74 even if the material facts asserted by the applicant are assumed to be true. There are significant differences between the parties as to their versions of the responding party’s conduct. The applicant claims the union coerced him to resign, whereas the union states that it made the applicant fully aware of his right to grieve. Under the circumstances, the Board does not consider this an appropriate case in which to exercise its discretion to dismiss the application without a hearing on the basis of failure to plead a prima facie case.
The period of delay in the filing of the current application may be as long as 23 months. This is longer than the period normally viewed by the Board as being reasonable, but each case must be considered on its individual merits. The applicant asserts that, after the resignation, he experienced certain difficulties that impeded his ability to act. The responding party disputes that any difficulties experienced by the applicant affected his ability to promptly file a claim. The Board declines to decide the issue of “undue delay” on the basis of the pleadings alone, without prejudice to the right of any party to raise the delay issue before the panel of the Board assigned to the consultation in this matter.
The matter is referred to the Registrar to be scheduled for a consultation.
“Anthony Brown”
for the Board