Jeff Scott v. The Ottawa-Carleton Public Employees’ Union Local 503
File No.: 1628-01-U Date: November 8, 2001
Between: Jeff Scott, Applicant v. The Ottawa-Carleton Public Employees’ Union Local 503, Responding Party and The City of Ottawa, Intervenor
Before: Mary Anne McKellar, Vice-Chair
Decision of the Board
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (“the Act”), alleging that the responding party trade union (the “Union”) has violated section 74 of the Act.
2The application was filed with the Board on August 31, 2001. It relates to the Union’s resolution on July 6, 1999 of the applicant’s 1997 grievance respecting events that allegedly occurred in 1994.
3By decision dated October 22, 2001, the Board acknowledged receipt of the requests by the responding party and the intervenor that this application be dismissed for, inter alia, delay, and made the following directions:
- . . . the applicant is directed to deliver and file submissions in response to the timeliness objection, and indicating any disagreements with the facts as pleaded by the Union and Employer. Any facts set out in the Union’s and Employer’s responses that are not specifically disputed will be deemed to be accepted. Such submissions are to be delivered and filed no later than ten (10) days from the date of this decision. The Union and the Employer may deliver and file submissions in reply no later than five (5) days following delivery of the applicant’s submissions.
4By letter dated October 30, 2001, the applicant filed its submissions pursuant to the above direction. By letter of the same date the applicant also forwarded to the Board a copy of the grievance. Neither the Union nor the intervenor have filed any submissions in reply.
5With respect only to the issue of an explanation for the delay, the applicant’s submissions contain the following statements of fact:
In terms of the Union’s reply as to whether he was informed or advised of the mediation and further, whether he was consulted as to his position on the mediation; [sic] the applicant relies on the contents of his original application.
Upon receiving written notice at the end of January 2001, the applicant made inquiries of a number of lawyers including Mark Habib, Tom Curran and Lawrence Greenspoon who referred him to his present counsel. It wasn’t until his current counsel a\that he was advised of the possibility of a section 74 application. He also made independent inquiries of the Ministry of municipal Affairs and Housing to help determine who he should be pursuing with his claim due to the merger.
Both the City and the Union were aware throughout that the applicant was depressed to the degree that he is on long-term disability. This condition has caused him emotional and psychological concerns, which have hampered in part how he has pursued his current claim.
6The legal implications of the delay in filing the within application are also addressed in the applicant’s submissions as follows:
If one accepts the applicant’s version of when he became aware of the problem, and surely that is something that should be tested under oath and before an adverse finding is made [sic]. The issue crystallized January 25, 2001 or soon there after [sic] when Mr. Scott would have received the correspondence. It was the letter of the union, which he solicited, dated January 25, 2001 that fully alerted him to the problem. Up until then, he had concerns about the union’s representation but understood the matter to be still in the works and not resolved. It is submitted that all the steps taken prior to initiating the grievance are largely irrelevant in these circumstances. The grievance was accepted by the employer in the sense that it was responded to.
After January 25, 2001 we know that he sought legal counsel from a number of lawyers before it was suggested to him that a section 74 application was a possibility. He was in fact advised by one lawyer that this was a matter best dealt with by the union. Being a lay person, the applicant did not know what a section 74 application was, let alone how it should work. Added to this uncertainty is the factor of Mr. Scott’s depression, which is so debilitating that he is on long-term disability. Both employer and union were aware of his condition at all times and should not be seen as taking advantage of his situation.
The policy argument that the smooth functioning of labor [sic] relations should not be impacted by the delay does not really apply in this situation. The behavior [sic] complained of is sexual harassment and is not a function of the collective agreement. Such a serious workplace issue should not have a stale date if it has not been properly investigated or adjudicated upon.
7There is clearly a dispute between the applicant and Union as to when the circumstances grounding this application crystallized, and that dispute complicates the measurement of the length of the delay involved in bringing the application. If measured only from January 25, 2001, as the applicant suggests it should be, the delay is not so unreasonable as to warrant summary dismissal of the application without a hearing or consultation, and the Board so finds.
8The Board has several comments with respect to the merits of the application. First, the Board notes that in his submissions of October 30, 2001, the applicant has not disputed the Union’s assertion that he has repeatedly failed to respond to its requests for information that would enable it to investigate his grievance and make an informed decision about whether to proceed with it. Having failed to dispute those assertions he is, pursuant to the Board’s direction in its October 22, 2001 decision, deemed to accept them. This acceptance may well have a significant impact on the ultimate disposition of the application. As well, there is a suggestion in that portion of the applicant’s submissions reproduced in paragraph 6 above that the circumstances giving rise to the grievance do not relate to the administration of the collective agreement, which may call into question the extent to which these events came within the scope of the Union’s section 74 duty. Finally, the Board notes that the grievance that grounds this application, and that the applicant seeks to have referred to arbitration, requests some remedies that may not be within the jurisdiction of an arbitrator to order (damages to dignity and for mental strain), or which may no longer be applicable (transfer to another position), having regard to the state of the applicant’s health and the fact that he is currently off work and in receipt of long-term disability benefits. Once again, this fact may well have a significant impact on the ultimate disposition of the application.
9This matter is referred to the Labour Relations Officer.
“Mary Anne McKellar”
for the Board