3148-00-U Minh Tan Nguyen, Applicant v. United Steelworkers of America Local 9042, Responding Party v. Regal Spring Company, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; October 16, 2001
This is an application pursuant to section 96 of the Labour Relations Act, 1995, alleging violation of section 74.
By decision dated April 17, 2001, the Board directed the applicant to reply to the responding party union’s assertion that the application should be dismissed because of undue delay in filing the application.
On April 27, 2001, the applicant filed submissions on the issue of delay. He asserts that several factors have combined to cause the delay in filing, including: the applicant is a landed immigrant and less aware of opportunities afforded by the Board; the applicant suffers from a language barrier and is therefore not privy to information about seeking redress; the union never informed the applicant of his right to bring the union’s decision to the Board; the applicant is inexperienced in “union” situations as he immigrated from a communist regime; the applicant was unaware of the existence of the Board and its function; the applicant is unsophisticated and uncertain of his rights respecting employment; the applicant only became aware of his opportunity to object to the union’s decision in January, 2001, after consulting a lawyer about another matter. The applicant notes the importance of his claim in respect of maintaining his livelihood. The applicant also asserts that the responding party has not shown how it will be prejudiced by the delay. The applicant further submits that the Board’s decisions in respect to the issue of undue delay show that the Board has considered different durations as constituting a permissible period of time in which to file an application. The applicant would calculate the period of delay from the time he asserts he became aware of the union’s decision not to proceed with the grievance. This would put the delay at “just over twenty four months.” The applicant requests that the matter proceed.
The responding party states that it filed a Step One grievance in respect of the termination of the applicant’s employment and that, on November 4, 1998, it met with the employer to discuss the matter. The employer denied the grievance because it was untimely and because the applicant had allegedly been off work without justification. The union states that, having apprised itself of the circumstances, it decided not to proceed further with the grievance, and notified the applicant accordingly. It would appear, therefore, that the period of delay in this matter extends from some time in November or December, 1998 to the date of application, January 30, 2001.
Decision:
As the Board indicated in its decision dated April 17, 2001, the issue of delay was discussed in the leading case of The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, where the Board stated:
… In the Board’s view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
A perusal of the Board cases reveals that there has not been a machanical [sic] response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial libility [sic] or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
The Board has dealt with the issue of undue delay on many occasions. While a delay of under one year is often permitted, the Board is more inclined to exercise its discretion not to hear a matter if the delay in filing the application extends significantly beyond one year. For example, in Ontario Nurses’ Association, Local 96 (unreported decision in Board File 2448-99-U dated February 22, 2000, the Board decided that a delay of one and one-half years was too long. In United Steel Workers of America (unreported decision in Board File 1745-99-U dated April 27, 2000), the Board declined to hear a matter where there was a delay of thirteen months, and in Property Management Service (PMSO), Greenwin Property Management (GPM) and Labourers’ International Union of North America, Local 183 (unreported decision in Board File 2133-96-U dated April 14, 1997), the Board refused to hear a complaint where the delay was approximately fifteen months. In David Campbell Johnson (unreported decision in Board File No. 1010-00-U dated February 5, 2001), the Board dismissed an application where the period of delay was sixteen months.
- In The Canadian Union of Public Employees, Local 79 (unreported decision in Board File No. 1029-94-U dated January 23, 1995), the Board, in finding that a delay of eleven to thirteen months was unduly protracted, stated at paragraph 33:
The Board has dismissed applications for delay on many occasions, a number of which were referred to by the union. The Board requires allegations of wrongdoing to be made expeditiously, as delay is prejudicial to the other party which will proceed to conduct its affairs in the meantime in the expectation that the matter has come to a close. Furthermore, delay necessarily affects all parties’ ability to present their cases because evidence may not be preserved and memories fade. Therefore, in the face of a delay of this duration, the applicant must offer some reason which would outweigh the prejudice to the union.
The Board has carefully considered the reasons put forth by the applicant to explain why it took just over two years for him to file this application. Simply put, those reasons state that the applicant was not aware of his rights under the Act. The Board recognizes that persons may need time to collect themselves following termination of employment, and to seek advice about asserting their possible rights under the Act. The applicant was encountering difficulties proving claims before the Workplace Safety and Insurance Board and in respect of Employment Insurance Benefits. However, unfamiliarity with the law and legal process, while it may justify some delay, does not justify a delay of just over two years. Moreover, a delay of this magnitude is, in the Board’s view, inherently prejudicial to the ability of the other parties to make a full response should this matter proceed to a hearing or consultation. The union was entitled to believe that the matter was closed when it did not hear from the applicant after 1998.
For the foregoing reasons, the Board considers that the applicant did not proceed to file his application in a timely manner. There has been undue delay. The Board therefore declines to inquire further into this application.
The application is dismissed.
“Anthony Brown”
for the Board