Marion Schedler v. The Campbell Soup Company Ltd.
2927-00-OH Marion Schedler, Applicant v. The Campbell Soup Company Ltd., Responding Party.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Marion Schedler on her own behalf; Damian Rigolo, Blair Burns, Todd, Takeuchi, Jerry Nelgmans, Brad MacDonald and Frank Podniewicz for the responding party.
DECISION OF THE BOARD; June 5, 2001
1This an application pursuant to the Occupational Health and Safety Act (“the Act”) alleging violation of section 50. The applicant claims that she was suspended for three days because she notified the Ministry of Labour about safety concerns in respect of the responding party’s “pie” production line. She also claims that she was constructively dismissed, although the application lacks particulars about this claim.
2At the commencement of the hearing of this matter on May 15, 2001, the responding party employer moved that the application be dismissed on the ground of undue delay. The employer submits that there was a delay of eleven months between the time the applicant was suspended from employment (February 1, 2000) and the filing of the application (January 5, 2001). It alleges that the applicant only filed the instant application after receiving word that the Human Rights Mediation Office had recommended to the Human Rights Commission (on December 18, 2000) that the Commission not inquire into the applicant’s human rights complaint against the responding party. The responding party asserts that the delay is inherently prejudicial to its ability to respond to the applicant.
3The Board asked the applicant to explain the delay. She stated that she did not know she might have grounds to apply under section 50 of the Act until about May, 2000 because she did not have sufficient information about why she was suspended by the employer. The employer disputed this. The Board directed the parties to provide their evidence on this point.
4Two witnesses testified for the employer. Blair Burns (Human Resource Manager) and Todd Takeuchi, (then Assistant Plant Manager, now Plant Manager) both stated that they jointly investigated harassment allegations against the applicant, interviewed the applicant, concluded that her conduct was in violation of company’s violence policy, and verbally suspended her for a period of three days. The company alleges that she had seriously intimidated a fellow employee by telling him he would be fired because the Ministry of Labour was investigating the safety of procedures involving the company’s “pie” line. Written confirmation of the suspension could not be provided to her because she resigned her employment prior to her scheduled return from suspension.
5The applicant testified that when Mr. Burns and Mr. Takeuchi interviewed and suspended her, they did not tell her why she was being suspended. She stated that she therefore concluded that the suspension was in response to the fact that she had recently called the Ministry of Labour regarding the procedures in respect of the “pie” line.
6The applicant also explained that she was not aware of her right to file a section 50 complaint and, secondly that she was occupied with her complaint to the Human Rights Commission and her complaint to the Workplace Safety and Insurance Board (WSIB). She is seeking a reinstatement order from the WSIB, a remedy also sought before the Board.
Decision
7On May 15, 2001, the Board made an oral ruling dismissing the application on the ground of undue delay. The Board has discretion not to hear an application under section 50 of the Act. It has this discretion because subsection 96(4) of the Labour Relations Act, 1995 applies to a section 50 complaint. One of the well-established grounds for exercising discretion not to hear a complaint is “undue delay”. Quite simply, persons are expected to exercise reasonable diligence in the pursuit of their right to file a claim. Ignorance of the right to file a claim is not an excuse for delay, although parties must clearly be afforded enough time to be able to make inquiries, seek legal advice if necessary, and to formulate and file their pleadings.
8The applicant admitted under oath that she considered her suspension to have resulted from her call to the Ministry of Labour because she was not given any reason for the suspension. In my view, having made this connection in her mind, she was in a position to investigate what her legal rights might be. She could have filed the current application as early as February, 2000.
9The applicant has not provided acceptable reasons for the delay. In my view, it is not fair or reasonable to permit the applicant to “sit” on her section 50 claim, only to spring it upon the employer after eleven months. Nor it is a valid excuse to claim that she was waiting to see how her claim at the Human Rights Commission would turn out. Her protection against reprisal is quite a different matter from her claim of discrimination under the Human Rights Code. The employer, who would have the burden of proof if this matter proceeded on the merits, would likely be prejudiced by the effect of the passage of time on the ability of witnesses to recall events.
10For the foregoing reasons, the Board dismissed the application on May 15, 2001.
“Anthony Brown”
for the Board