0432-01-U Jean Jordan, Applicant v. Ontario Nurses’ Association, Responding Party v. Villa Colombo Homes for the Aged Inc., Intervenor.
BEFORE: Christopher J. Albertyn, Vice-Chair.
DECISION OF THE BOARD; June 29, 2001
This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (“the Act”) in which the applicant claims that the responding trade union (“the union”) has violated section 74 of the Act.
A decision issued on June 12, 2001. It required the applicant to reply to the union’s response. She has done so. It is not clear that the union and the applicant’s former employer were given copies of the reply.
A Rule 46 application is based solely upon the allegations contained in the application, as amplified by any further submissions made by the applicant.
Putting the applicant’s case at its best, she says the following. She was out of work. She applied for positions as a registered nurse. She was interviewed by three prospective employers: Southbrook Retirement Home, Tullamore and the We Care Agency. Her impression of her interviews was that they were favourable. She was told at the We Care Agency she would be hired following a reference check. Reference checks followed each of the interviews. After each reference check the applicant was told that she would not be hired. She was given the strong impression that the cause of her not getting the jobs she wanted was the negative reference her former employer was giving. She says that one of the individuals who interviewed her told her she should take up the matter with the College of Nurses; another told her to raise the matter with her former employer. The negative references which were apparently being given to prospective employers by the applicant’s previous employer conflicted with the terms of the Minutes of Settlement which the former employer had concluded with the applicant and the union at the time she ceased her employment.
At the applicant’s request the union filed a grievance in respect of the alleged violation of the Settlement Agreement. Shortly before the arbitration hearing to consider the grievance, the union decided to withdraw it, on the basis that there was insufficient evidence to support the applicant’s claims, and there was no basis in law for the applicant to claim damages beyond any potential loss of earnings.
I accept the union’s position that there is no basis upon which the applicant could claim any damages against her former employer beyond a loss of earnings. She cannot, as she would like, claim general damages under headings like humiliation, loss of enjoyment of the amenities of life, pain and suffering, etc. If she had any claim against her former employer it would be restricted to financial losses directly attributable to the former employer.
A claim against the former employer for loss of earning arising from a violation of the Minutes of Settlement would depend wholly upon the testimony of the three individuals who interviewed the applicant and spoke to her former employer to obtain a reference. They would have had to confirm that the applicant was disparaged in the reference they received and the disparagement was the cause of their not employing the applicant.
The union says in its response that it spoke to the three individuals concerned. Two did not confirm what the applicant alleges. I understand this to mean that they did not confirm either that the applicant’s former employer had maligned her, or that a negative reference was the cause of her not being employed. The union says that the third individual made clear that she was not willing to come forward and testify for the applicant. Whether that means a subpoena would have removed the unwillingness, or she was uncooperative or hostile to the applicant, or she was unsupportive of the applicant’s version of the facts is not clear.
The applicant admits she was told by Ms. Sax, counsel for the union who was to present her grievance at arbitration, that the three witnesses she needed to prove her case were either unsupportive of her version or reluctant to testify.
What is clear from the above is that the union investigated the applicant’s case. It pursued it through the grievance procedure and it referred the grievance to arbitration. Ms. Sax spoke to the applicant’s essential witnesses. They were not supportive of her case. The union was faced with the situation of having no witnesses who would back her version of events. By that stage the applicant had obtained work and she had been in employment for some 11 months. (The applicant obtained work on March 28, 2000. She started work on April 3, 2000. The arbitration was scheduled to be heard on February 28, 2001. The union appears to have withdrawn the grievance the day before, on February 27, 2001.)
The applicant says that Ms. Sax was against her and early on showed a reluctance to pursue her case to arbitration. The evidence agreed by the applicant does not support that conclusion. The applicant admits that right up until the arbitration hearing date, Ms. Sax was making contact with her potential witnesses and she was discussing possible lines of settlement which might be pursued at arbitration. Ms. Sax appears to have been aware of the issues at stake in the matter and of the need for adequate proof of the allegations made by the applicant against her former employer. That is apparent from the admissions made by the applicant in her reply to the union’s response.
In all of these circumstances I am satisfied that the union’s decision not to pursue the applicant’s grievance to arbitration was a prudent decision made on the basis of a reasonable assessment of the law, the evidence available and the heavy onus which the union faced to establish a breach of the Minutes of Settlement by the applicant’s former employer.
Given this conclusion, I find that the applicant has not made out a prima facie case that the union has violated section 74 of the Act. The application is dismissed.
“Christopher J. Albertyn”
for the Board