Ontario Labour Relations Board
File No.: 0920-01-U Parties: Martin Solyom, Applicant v. International Wood & Allied Workers of Canada (IWA-Canada), Responding Party.
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; August 27, 2001
This matter is an application under section 74 of the Labour Relations Act, 1995 (the “Act”). Mr. Solyom asserts that IWA Canada breached its duty of fair representation to him when it refused to file a grievance with respect to an oral warning given to Mr. Solyom by his supervisor, Mr. Kent, on May 16, 2001. This matter has been referred to me for my review and determination as to whether it ought to proceed to a consultation.
There is no dispute that, on May 16, 2001, Mr. Solyom was spoken to by Mr. Kent concerning his having left the premises on that day without advising Mr. Kent or punching out. In addition, Mr. Solyom was given a document entitled “Employee Warning Record” across the top of which had been written “Verbal Warning”. The form itself clearly indicates that the intention of the form is to give Mr. Solyom an oral warning for a conduct violation that occurred on May 16, 2001.
Mr. Solyom was given the Employee Warning Record in order that he could fill in the section entitled “Employee’s Remarks Re: Violation” and sign it.
Mr. Solyom strenuously asserts that he did nothing wrong on May 16, 2001. He asserts that Mr. Kent and an individual from Human Resources were aware that he was leaving on May 16, 2001 and that he had an arrangement in place since February, 2000 pursuant to which he was not required to punch out when going to physiotherapy or doctor appointments. Mr. Solyom wants IWA Canada to pursue a grievance on his behalf seeking removal of the May 16, 2001 verbal warning from his record and a letter of apology.
Following the issuance of the verbal warning Mr. Solyom had a conversation with Mr. Mear, the company’s vice-president, on May 18, 2001. At the conclusion of this conversation, Mr. Solyom had the impression that the matter had been resolved. Some weeks later, Mr. Solyom had a conversation with Mr. Kent in the course of which Mr. Kent indicated that the verbal warning remained on Mr. Solyom’s record and that it could be used against him at a later date. As a result, Mr. Solyom requested that a grievance be filed on his behalf.
A grievance was filed. The company responded that it would not consider the grievance for a number of reasons including: the grievance was untimely; the matter had been resolved, and the grievance procedure did not apply as the verbal warning was not disciplinary in nature.
The IWA Canada filed a detailed response in this matter. Amongst the materials filed by the IWA Canada are a letter dated June 19, 2001 and a memorandum dated June 26, 2001, from Mr. Mear to the union. The letter and memorandum indicate that the Employee Warning Record given to Mr. Solyom on May 16, 2001 was not disciplinary in nature. Mr. Mear indicates that the intention of the form was to put Mr. Solyom on notice that the procedure to be followed in the event that Mr. Solyom had to absent himself from work in order to attend a doctor or physiotherapy appointment had changed. He was henceforth required to notify his supervisor and to punch out.
Given the language and content of the Employee Warning Record Mr. Solyom’s assumption that he was being disciplined is entirely understandable. Mr. Mear’s letter and memorandum do not clearly state that a error was made in using the Employee Warning Record or that the Employee Warning Record is withdrawn.
I am satisfied, however, that the effect of Mr. Mear’s letter of June 19, 2001 and memorandum of June 26, 2001 is to acknowledge that Mr. Solyom was not subject to any disciplinary action on May 16, 2001 and that the purpose and intent of the Employee Warning Record was only to inform him of a change in practice. Such being the case, although Mr. Mear has not categorically acknowledged that the form was incorrectly used or that it is withdrawn, such is the effect of his correspondence of June 19 and 26, 2001 to the union.
Thus, practically speaking, the Employee Warning Record dated May 16, 2001 cannot appear in Mr. Solyom’s file for any other purpose than establishing that he has been advised of a change in policy when leaving work for the purpose of attending medical appointments. It does not represent disciplinary action. It cannot be relied upon by the company if, in the future, disciplinary action is taken against Mr. Solyom.
As a result, notwithstanding that the company has not stated that it made an error or apologized to Mr. Solyom, the fact is that the Employee Warning Record has been acknowledged by the company not to constitute discipline and cannot be used against Mr. Solyom in the future. A union’s task is to represent its members with a view to obtaining material results on their behalf. It is the material result that matters not whether the union was able to exact an apology or recognition of wrongdoing from the company. In this case, the employer’s acknowledgment that the Employee Warning Record is not disciplinary in nature and cannot be referred to in the course of determining any future discipline achieves the desired material result. The IWA Canada is not required to continue to pursue a grievance on Mr. Solyom’s behalf for the sole purpose of obtaining an apology.
The IWA Canada has thus obtained for Mr. Solyom everything that it reasonably could. There is nothing further that the IWA Canada can achieve for Mr. Solyom even if it were to pursue a grievance on his behalf. As a result, it is my determination that there is no labour relations purpose to be served by the Board enquiring into this complaint. Pursuant to my discretion, contained in section 96 of the Act, I hereby decline to enquire into this complaint.
This matter is hereby dismissed.
“D. L. Gee”
for the Board