Labourers’ International Union of North America, Local 506 v. Res 2000 Structures Inc.
Board File and Appearances
3738-00-G Labourers’ International Union of North America, Local 506, Applicant v. Res 2000 Structures Inc., Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and A.Haward.
APPEARANCES: John Moszynski, Carmen Principato, Augusto Rocha for the applicant; Walter Thornton, Paul Rea, Alex DeIulis and Sam Manna for the responding party.
DECISION OF THE BOARD; April 17, 2001
Decision
1This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended (the “Act”). The grievance dated February 23, 2001 alleges that the responding party violated the collective agreement between the Labourers Employer Bargaining Agency and the Labourers’ International Union of North America and the Labourers’ International Union of North America, Ontario Provincial District Council that expires April 30, 2001 (the “Collective Agreement”). The responding party acknowledges that it is bound by the Collective Agreement. The grievance alleges that the responding party discharged Richard Guenette (the “Grievor”) on February 22, 2001 without just cause contrary to section 5.01(a) of the Master Portion of the Collective Agreement and Article 19 of the Local 506 (Toronto) Schedule to the Collective Agreement.
2The responding party is a concrete forming construction contractor and a member of the Concrete Forming Association of Ontario. It was engaged in the construction of a multi-storey commercial building at 38 Leek Crescent in Richmond Hill (in Board Area 8) at all times material to the grievance. The Grievor had been dispatched by the applicant to work for the responding party at the Leek Crescent project near the end of 2000 and had been dismissed from his employment on February 22, 2001.
3When this matter came before the Board for hearing, the parties set out their respective positions in opening statements during which they indicated the nature of the issues in dispute. The parties also made submissions as to whether the Board would receive evidence from a physician who had been treating the Grievor. After receiving submissions on that evidentiary point, the Board ruled that the evidence would not be relevant to the issues that the parties had raised in this proceeding.
4Although this matter is a discharge case and the responding party bears the burden of establishing just cause, given the nature of the factual issues between the parties, the Board observed that the applicant might wish to consider whether the applicant should proceed first with its case with the Grievor testifying about the two phone calls he said he had made to the responding party when he did not report for work in early February, the conversations he said he had had with the responding party’s foreman when he was ready to return to work and the exchange between the foreman and him the day he was discharged. Counsel for the responding party was amenable to proceeding first or having the applicant put in its entire case before the responding party called its evidence; he left that to counsel for the applicant. Counsel for the applicant asked for a recess to consider the observation made by the Board.
5During the recess, the parties met with a Labour Relations Officer and subsequently, when the Board reconvened, counsel for the applicant indicated that if the applicant did proceed first, the Grievor’s evidence would not be completed in the time left and therefore requested an adjournment. Counsel for the responding party did not consent, but indicated that he understood the reasons why an adjournment in the circumstances might be considered appropriate by the Board. The Board also canvassed the parties about the number of days that might be necessary to hear the case and concluded that three more days should be scheduled. Under these circumstances, the Board was satisfied that the hearing should be adjourned.
6The Board notes that counsel for the applicant agreed that he would advise counsel for the responding party not less than one week before the next scheduled hearing whether he would proceed first with the applicant’s case and whether he would be calling the Grievor to give evidence first. The parties also agreed that should the responding party be liable to the Grievor for damages arising out of his termination of employment, the damages, if any, would cease to accrue as of the date the Grievor would have been laid off from work at the Leek Crescent project in Richmond Hill had he not been discharged on February 22, 2001.
7The Board, with the agreement of the parties, fixed June 19, 21 and July 31 as the dates for the continuation of the hearing of this matter to commence at 9:30 a.m. each day.
8This panel of the Board remains seized with this matter.
“Harry Freedman”
for the Board