3604-00-OH Telford DeSouza, Applicant v. Innovative Roller Technology Inc., Brian Venis and Jim Martin, Responding Parties.
BEFORE: D.L. Gee, Vice-Chair.
DECISION OF THE BOARD; June 6, 2001
The Board is in receipt of a request for reconsideration of its decision dated April 19, 2001 dismissing this application for delay.
The applicant states that his pay was reduced for the pay period ending July 2, 1999 as a reprisal for his having submit a letter complaining about exposure from fume contaminates inside the spray booth to the Ministry of Labour. The applicant asserts that the reduction in pay thus violates section 50 of the Occupational Health & Safety Act (the “OHSA”).
The application was filed with the Board on March 8, 2001, one year and eight months after the events in question. The Board, in its April 19, 2001 decision, thus dismissed the application on the basis that it had not been filed in a timely manner.
In the request for reconsideration, the applicant explains that, following his cut in pay, he made efforts to resolve the matter:
a) On June 9, 1999, he spoke with his foreman and was told that the matter would be investigated and a response communicated to him.
b) On July 13, 1999 the applicant was told by Mr. Martin “you reap what you sow”.
c) In October 2000 (a year and three months after the second discussion), Mr. Martin told the foreman to leave the issue with him and he would take care of it.
The applicant argues that he should not be penalized by the delay as, during the delay, he was attempting to resolve the issue and he relied on the company’s promises that the problem would be taken care of. The applicant suggests that the Ministry of Labour failed to enforce compliance with orders made thereby resulting in the delay of the bringing of this application. The applicant further suggests that he was not immediately aware of his rights under the Occupational Health and Safety Act and that, over the course of the past 18 months, he has become more familiar with his rights. Finally, the applicant argues that the respondent has continuously breached his rights and that a separate breach occurs for each day that the respondent fails to pay the applicant the pay increase.
The applicant made three efforts during a period of 20 months to have the issue rectified. He was told during the course of his second effort that “you reap what you sow”. I can only assume that the comment meant “you got what you deserved and nothing is going to be done to help you”. At this stage the applicant had a clear indication from his employer that they felt the salary cut was justified. From this point, the applicant was required to act with dispatch in the filing of an application. He did not file an application. He waited a further year and three months before he raised the issue with his employer again. He then waited a further five months following this conversation to file this application.
The event that the applicant asserts caused the employer to lower his salary occurred in June, 1999. That event, if this matter was to be litigated, would be the source of considerable testimony. Who said what, who called the Ministry, who was present, what documents were created, who from the Ministry attended etc. Further, the reprisal, the lowering of the applicant’s salary, occurred in July, 1999. Again, if this matter was to proceed to a hearing, considerable evidence would have to be called concerning the raise, why it was given, communications surrounding such, who were such discussions with and why the raise was taken away, when and by whom. The Board has serious concerns when applications are not filed in a timely manner as, the longer the delay, the more the responding party is prejudiced in its ability to defend itself. The responding party was not put on notice that the applicant felt his pay reduction was a retribution against him for his having called the Ministry of Labour until one year and eight months after the events in question. The responding party was denied the right and opportunity to preserve whatever evidence it would need to call at a potential hearing. Witnesses’ memories fade, employees leave and can no longer be located, documents are destroyed. Thus, the delay, is calculated, not from each paycheque, but rather from the events upon which the allegations are based and the last possible day that the applicant can legitimately continue to attempt to resolve the issue without the need for litigation. In the present case, the applicant was reasonable to have continued his attempts at resolution up to the point that he is told “you reap what you sow”. At that point, he was put on notice that the employer is not going to help him. An application should have been filed with the Board relatively soon thereafter. It was not.
The applicant further suggests that his delay should be excused at the Ministry of Labour failed to enforce compliance with the orders. The foundation of the applicant’s application is his pay reduction. Whether the orders were subsequently enforced or not is irrelevant to the applicant’s complaint.
The Board is not persuaded that the applicant’s knowledge of his rights is relevant to this issue. Matters must be raised and litigated in an efficient manner. For the reasons set out above, claims cannot be allowed to simply exist unexpressed for lengthy periods of time. The applicant, if he had any concerns as to his rights should have sought timely advice.
For the foregoing reasons, this request for reconsideration is denied. This file is closed.
“D.L. Gee”
for the Board