3825-00-U Harry Sookram, Applicant v. CAW TCA Canada Local 40, Responding Party v. Gentry Knitting Mills Ltd., Intervenor.
BEFORE: Mary Anne McKellar, Vice-Chair.
DECISION OF THE BOARD; August 21, 2001
1. This 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. The application was filed with the Board on March 19, 2001, and relates to incidents that occurred in April, 1998.
2. The Union asks that the application be dismissed without a hearing for failure to state a prima facie case, and because there has been undue delay in filing the application which has resulted in prejudice to the responding party, due to the loss of some files relating to the application.
3. The applicant has also named his former employer, Gentry Knitting Mills Ltd. (Gentry) as a responding party to this application. Gentry seeks to be removed as a respondent and added as an intervenor. Gentry also asserts that the matter should be dismissed for delay.
4. The Board will deal first with the allegations respecting failure to state a prima facie case, and will treat the Union’s request to dismiss this matter without a hearing as falling within the rubric of Rule 46 of the Board’s Rules of Procedure. Rule 46 provides:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
5. The application states:
My employment was terminated in a very unfair manner. The union never filed a grievance or did anything on my behalf. The union acted arbitrarily and in bad faith.
6. Under that portion of Board Form A-29 (Application Under Section 74 of the Act) headed “Remedies” and including the question, “For example, are you asking the Board to order that your grievance proceed to arbitration?”, the applicant has written “yes”, although the attached particulars suggest that this is not the outcome he desires.
7. In addition to his statement of particulars, the applicant also encloses along with his application copies of Gentry’s letter terminating him effective April 24, 1998 on the basis that he was repeatedly caught sleeping on the job, as well as a letter dated April 28, 1998 from the Union to Gentry. The contents of this letter are significant and will be referred to below. The applicant’s particulars comprise five single-spaced typed pages. No mention of the Union is made until the final page. The bulk of the particulars recount the applicant’s explanations for various instances when he was found sleeping at work, his justifications for why that behaviour should have been tolerated, and his criticisms of the response of supervisory personnel.
8. The only references in the particulars to the Union’s conduct in respect of the applicant’s termination are the following:
In regards to my termination of employment, the union completely ignores filling [sic] a grievance on my behalf. I spoke to Jenny J.H., the local representative of the union, a number of times about the incident and was told there was nothing much the union could do, because the company is very cheap and it is very difficult to deal with a non-cooperative company. All that the union did was send out a letter dated April 28, 1998 requesting that I get severance pay for my 22 years of service with the company as a matter of courtesy. The company never replied to the union. . . . I spoke to a couple of lawyers about my termination of employment and was told that they cannot get involved because of the union. Then I was told to get in contact with the Labour Board, which I did.
My employment was terminated in a very unfair manner. For 22 years of service, the notice of termination was unreasonable and the employer did not give me any reasonable opportunities to solve the problem. Example: Having seniority over my co-workers I should have been given the opportunity to work the day shift or evening shift. The company didn’t suffer any financial hardship or other by this minor incident. This problem could have easily corrected [sic] by the company but they did not make any effort. I was not given severance pay.
Due to the above conditions I am claiming wrongful dismissal I am requesting one-month pay for each year of service which [sic] Gentry and bad faith damages, which will be decided by the court.
I trust the Labour Board will help me in this case.
9. The Union’s letter of April 28, 1998 to Gentry reads as follows:
I understand Harry Sookram has been terminated from Gentry Knitting Mills. Harry has been a long time employee of Gentry Knitting Mills. He has provided approximately 22 years of service. Harry Sookram understands your decision with him. But, when Harry was terminated, he was let go without any severance pay. The Union is asking Gentry Knitting Mills on behalf of Harry Sookram, if you would consider giving severance pay so that Harry will be able to manage until he finds other employment opportunities and as a courtesy to his long years of employment with Gentry Knitting Mills.
10. Section 74 of the Act provides:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
11. The section 74 duty extends only to a bargaining agent. An employer cannot be found to be in breach of this section, and is not a proper respondent to such application. No remedial order can be made solely against an employer, although a remedial order made against the bargaining agent may indirectly impact upon the employer, as for example where the union is ordered to refer a grievance to arbitration. See John Kohut [1991] OLRB Rep. Jan. 35, at Paragraph 13. Gentry is hereby removed as a responding party to this application and made an intervenor.
12. The Board has discretion not to inquire into a section 74 application and has so exercised its discretion where there has been a lengthy unexplained delay between the incidents complained of and the filing of the application, during which time the applicant has done nothing to alert the bargaining agent to his complaint. As the Board commented in Chrysler Canada Inc. [1997] O.L.R.D. No. 2605, such delay is to be measured in weeks, rather than months and where an application is filed more than a year after the incident complained of, there is a presumption of prejudice to the responding trade union and any intervening employer, such that the applicant bears the onus of providing a good reason for the delay:
- But speed is not the only objective, and justice and fairness require that someone who may be aggrieved have a reasonable opportunity to recognize this, to formulate a position and plan of action, seek legal advice or representation, and to actually plead and file a complaint. While there is no fixed rule, in cases which involve a loss of employment (particularly in an economy in which jobs are hard to come by), the rule of thumb developed by the Board is that it will generally not dismiss a complaint which makes out a prima facie case on the basis of delay which is less than one year long, except where a responding party demonstrates actual prejudice and there is no satisfactory explanation for the delay. As a general matter, where the delay asserted is less than one year, the onus is on the responding party to demonstrate actual prejudice (or perhaps some other good reason) sufficient tot justify dismissing a complaint without a hearing on its merits. But where the delay is more than one year, the onus is on the applicant to provide a satisfactory explanation for it. At that point it becomes incumbent upon an applicant to provide a good reason for the Board to exercise its discretion in favour of entertaining the application or complaint.
13. In Chrysler Canada Ltd, supra, the Board held that the fact that the applicant was pursuing his remedy in another forum was no an acceptable explanation for a delay of three years. It reached a similar conclusion when faced with a delay of two years in Redpath Sugars, Division of Redpath Ind. Ltd. [1997] O.L.R.D. No. 3600, and in Robert Ross [1994] O.L.R.D. No. 2916.
14. The applicant does not clearly state that he ever sought to have the Union file a grievance on his behalf in respect of his termination. Indeed, his particulars suggest that he accepted the fact of the termination, but thought that it should have been attended by certain financial compensation from Gentry. Within four days of his termination, the Union wrote a letter on his behalf to Gentry which clearly indicates that the applicant does not dispute the propriety of his termination but does request severance pay. The claim for severance pay is not grounded in any provision of the collective agreement, nor does the applicant suggest that it should have been. Instead, it is described as a “courtesy payment”. In this application, the applicant seeks to pursue a wrongful dismissal claim and to be awarded severance pay and “bad faith damages”. These appear to be remedies sought against the employer, which the Board would not have jurisdiction to order in an application alleging a contravention of section 74 of the Act.
15. It is not at all clear that the applicant’s claims are based on the provisions of the collective agreement or any other document or statute pursuant to which the Union enjoys the right to exclusively represent the applicant vis-à-vis Gentry. Furthermore, the requested remedies are not ones the Board could order against the Union. Finally, the applicant has not provided any explanation for the almost three year delay between the date of his termination and the date of the application.
16. The Board directs the applicant to provide it with submissions responsive to the motions and in particular to address the following issues: the reasons for the apparently three-year delay in filing this application; the ways in which he alleges that the Union failed to appropriately represent him vis-à-vis Gentry in respect of matters in which the Union enjoyed exclusive representation rights; and the nature of any remedy requested against the Union. Those submissions must be delivered to the Union and Gentry and filed with the Board by no later than August 28, 2001. The Union and Gentry may deliver and file a response by September 5, 2001. In the event that the applicant fails to make timely submissions, this application will be dismissed without further notice.
17. The Registrar is directed to place the submissions before this panel of the Board.
"Mary Anne McKellar"
for the Board