Ontario Labour Relations Board
File No.: 3595-00-U Date: June 14, 2001
Eva Kiss, Applicant v. Amalgamated Transit Union, Local 113, Responding Party v. The Toronto Transit Commission, Intervenor.
BEFORE: Bram Herlich, Vice-Chair.
DECISION OF THE BOARD
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 in which it is alleged that the responding party (the “union”) has violated section 74 of the Act.
2The union and the intervenor (the “employer”) have both urged that the complaint be dismissed without a hearing on various grounds.
3The applicant was provided with an opportunity to respond to those requests and the Board is now in a position to deal with them.
4The facts giving rise to the application span a considerable period of time and I do not propose to outline them in great detail.
5It is sufficient for out current purposes to indicate that the applicant was the victim of a workplace injury which has had significant impact on her employment circumstances.
6In its barest outline, the application complains of two separate but related series of events.
7The accident occurred in October of 1999. The applicant claims that she was given improper training and that the accident itself and its subsequent handling give rise to serious issues and malfeasances.
8Since the accident it would appear that, although the applicant is not totally disabled, there have been limited opportunities for active employment. The applicant appears to be of the view that there is work available within her restrictions to which she should be assigned.
9Of course this complaint is filed against the union not the employer and it is therefore the union’s handling of the applicant’s concerns within the rubric of its representative rights and obligations which must be at the centre of the Board’s inquiry.
10Having reviewed all of the material filed by the parties, I am of the view that the Board ought to proceed with respect to issues related to the union’s handling of the applicant’s claim to accommodation with respect to ongoing work assignment.
11I am equally of the view, however, that complaints related to the accident and its handling ought not to be dealt with by this Board.
12I come to that conclusion for the following reasons. First, there is a 17 month delay between the events leading up to the accident itself (and its immediate aftermath) and the filing of this application. Further, it is less than clear from the materials filed when the applicant first requested that the union file any grievance in relation to the events surrounding the accident. The first reference to correspondence with union in the applicant’s materials is dated January 31, 2000. Even assuming that constituted a request that the union file a grievance, it is less than clear such a grievance would have been timely.
13But there are perhaps more significant reasons why the Board is declining to entertain this aspect of the claim.
14Again, from the materials filed by the applicant it is clear that the accident and some related safety procedures were the subject of specific scrutiny in the precise manner that one might expect under the joint responsibility system and the Occupational Health and Safety Act, (the “OHSA”).
15Most specifically, on May 30, 2000 a report was issued by a Ministry of Labour inspector under the OHSA (and apparently posted in the workplace) which included an order against the employer regarding accident reporting/notification requirements. Further, it is agreed that on April 3, 2000 an investigation report into the accident was issued by the certified management and worker representatives to the Joint Health and Safety Committee. That report included recommendations related to both training and reporting issues.
16In that context, it is not clear what purpose the filing and pursuing of a grievance (even if it had been requested in a timely fashion) would add to the situation. The application provides no illumination on that point. While the applicant does seek an order requiring the union to file her grievances and to permit them to proceed to arbitration, there is nothing in the application which clarifies what relief or other remedy would be sought in relation to the accident events.
17There is the suggestion in the complaint that the union ought to have pursued a prosecution of the employer for alleged breach of the OHSA. The union refers, quite correctly, to the time limits set out in that Act for such prosecutions. Quite apart from that concern, however, it is less than apparent that initiating OHSA prosecutions is a matter which falls under the union’s section 74 obligations or that the union stands in any better position than the applicant herself when it comes to initiating such a prosecution.
18For all of those reasons, the Board hereby exercises its discretion to not inquire into this matter any further insofar as it is related to the union’s handling of matters leading up to and culminating in the accident and its immediate aftermath.
19I am not inclined, however, to arrive at the same conclusion with respect to the apparently ongoing issues related to the applicant’s work assignment.
20The union and the intervenor both suggest that this aspect of the claim is perhaps premature given its ongoing nature and potential resolution. While there may be some basis for those assertions, I restrict myself, for the purposes of determining whether or not a prima facie case has been established, to the applicant’s pleadings.
21Those pleadings posit an injured worker who claims the ability to return to an existing full time position modified to suit her restrictions. She has made that desire clear to both the employer and the union and has requested that grievances be filed to support that position.
22No such grievances have been filed and, it appears, the applicant is not actively at work.
23I am satisfied that this aspect of the case warrants a consultation. Thus the Registrar is hereby directed to list the matter for consultation.
24I note, however, that the union and employer have both expressed a willingness to meet with a Board Officer in an effort to reach a resolution of the matter. Accordingly, the matter is referred to the Board’s Manager of Field Services so that an Officer may be made available to meet with the parties prior to the consultation.
25To summarize, the application is hereby dismissed insofar as it pertains to the union’s handling of matters related to the accident and its immediate aftermath. Insofar as the complaint pertains to the union’s handling of issues related to work assignment and accommodation, the matter is to be listed for consultation. The parties will, however, be provided with the opportunity to meet with a Board Officer prior to the that consultation.
26I am not seized.
“Bram Herlich”
for the Board