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Sadaghyani v. Ontario Public Service Employees Union, Local 444,2005 CanLIl 1711 Coo. Page 1 of 6
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This document 2005 CanUI1111 (ON LR-B.)
Citation: Sadaghyani v Ontario Pubfic Service Employees Union, Local
L.R S.)
Date: 2005-01.28
Docket: 165I.()4.U
2005 CanL11 "1711 (ON
1651-04-U Abbas Sadaghyani, Applicant v. Ontario Public Service Employees Union, Local
444, Responding Party v. Kingston General Hospital, Intervenor.
BEFORE: Peter F. Chauvin, Vice-Chair.
DECISION OF THE BOARD; January 28, 2005
I. This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.l, as
amended (the "Act") in which the applicant claims that the responding patiy ("Local 444") has violatcd
section 74 of the Act.
2. Mr. Sadaghyani's application form states "I quit because 1 have been forced to quit". The
remedy he has requested is "I would like the things that happened to me not to happen to somebody else,
full redress for suffering and arbitration".
3. Mr. Sadaghyani provides some further explanation of his complaint in a letter to the Board
dated August 3, 2004 that he attached to his application. In this letter Mr. Sadaghyani states that he was
hired by Kingston General Hospital ("KGH") in February 2003 to work part-time, 37.5 hours or more per
two week period, as an ECG Technician. Mr. Sadaghyani states that KGH then punished him for
speaking up against harassment and discrimination against him by reducing his hours to 16 hours per two
week period. Mr. Sadaghyani claims that he was reduced from part-time to "on call" status.
4. Mr. Sadaghyani claims that he complained of this to Local 444 but it told him that "your
hours are cut because they have given full time to Diana Butler". Mr. Sadaghyani also complains that
other part-time employees were hired, some of whom do not have a ECG diploma.
5. With regard his harassment and discrimination allegations, Mr. Sadaghyani states that he
made complaints about Cathy Shaw, the Senior ECG Technologist. However, Mr. Sadaghyani states the
Bev Weaver, Local 444 President and Anne Hogarth, Local 444 Vice-President, ignored him or confused
and mislead him. Mr. Sadaghyani gave the example of a meeting that was held on October I I, 2003 at
which he states that both Bev Weaver and
Anne Hogarth shook their heads at him, confused him, made him ok nervous and did not support him.
6. Mr. Sadaghyani states that on December 24, 2003 he complained to Anne Hogarth that Cathy
Shaw had intentionally not paged him for an emergency situation. Mr. Sadaghyani states that Anne
Hogarth showed no interest in his complaint.
7.
Mr. Sadaghyani states that on February 24, 2004, Local 444 filed a grievance on his behalf
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which states:
"I grieve that the employer has permitted me to be harassed and discriminated against
contrary to the provisions of the collective agreement. I grieve that I worked in
unsafe and unhealthy environment since May 03"
8. Mr. Sadaghyani attached a letter dated February 25, 2004 from Brendan KiJcline, Local 444
Chief Steward, which states that Mr. Sadaghyani had attempted to resolve his harassment and
discrimination issnes with the assistance of the KGH Human Resources ("HR") Depatiment However,
the letter states that Mr. Sadghyani is not pleased with and disagrees with the results of the investigation
into his complaints. The letter goes on to describe in greater detail his harassment and discrimination
complaints and concludes by stating that he has filed a grievance regarding same.
9. Mr. Sadaghyani states that on March 15, 2004 he attended a "stressful" meeting with Bev
Weaver, Brendan Kilcline and Bill Hunter, KGH Manager of Employee Relations, at which he felt
unsupported by Local 444.
10. Mr.. Sadaghyani also attached a letter dated March 22, 2004 from KGH to him. This letter
states that a grievance meeting was held on March 15, 2004 and then goes on to review in detail the
investigation that KGH conducted as a result of Mr. Sadaghyani's complaints regarding Cathy Shaw.
Notwithstanding that the investigation concluded that no harassment had occurred, several temporary
safety measures and a process for conflict resolution with Cathy Shaw were instituted. In conclusion,
KGH stated that Mr. Sadaghyani was unable to provide any information that supported his claim that he
had been harassed or discriminated against. This letter ends by stating that his "grievance is denied".
J I. Mr. Sadaghyani attached a letter dated AprilS, 2004 from Local 444 to KGB referring Me
Sadaghyani's grievance to arbitration.
12. In conclusion, Mr. Sadghyani states in his application that:
"I filed a grievance in February 24, 04 and I got two letters one different than
another. The letter that I got from union says: "We are referring this dispute to
arbitration." But the Jetter from hospital says: "My arbitration is denied." When I
asked Brendan Kilcline, local chief steward, why he didn't tell me anything about the
last meeting to prepare myself, he said: "Your arbitration is denied." He said exactly
what hospital said. I waited 5 months but no one took any positive step towards me."
13. Although Mr. Sadghyani's application form makes the sole statement that "I quit because I
have been forced to quit", none of the other documents that Mr. Sadghyani attached to his application,
including his two page August 3, 2004 letter to the Board, make any reference whatsoever to this
statement or otherwise state that he had quit
14. Both Local 444 and KGH have filed a response and have requested that this application be
dismissed without an oral hearing or a consultation. Local 444 states that it has referred Mr. Sadghyani's
grievance to arbitration and it is therefore premature to attempt to determine whether Local 444 has or has
not complied with section 74 at this point in time.
15. By letter dated August 30, 2004 Mr. Sadghyani filed a reply to the response filed by Local
444. The Board considers this letter to be an amendment to Mr. Sadghyani's application and has taken
this letter into consideration in preparing this decision. The Board does not find this letter to raise any
new facts or submissions but rather amounts to a review and restatement of the facts and submissions
contained in the application.
The Law Regarding Dismissals
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16. The most significant provisions of the Act and the Board's Rules of Procedure are the
following. Section 74 of the Act states that:
74. A trade union or council of trade unions, so long as it continues to be entitled to
represent employees in a bargaining unit, shall not act in a manner that is arbitrary,
discriminatory or in bad faith in the representation of any of the employees in the unit
It is important to note that on ly a trade union can be found to have contravened section 74 of the Act.
17. An applicant must fully set out the facts upon which he or she allegcs the union has
contravened section 74. Rule 38 states that:
38. Where a party in a case intends to allege improper conduct by any person, he or
she must do so promptly after finding out about the alleged improper conduct and
provide a detailed statement of all material facts relied upon, including the
circumstances, what happened, when and where it happened, and the names of any
persons said to have acted improperly.
The application form also reiterates this requirement.
18. The Board can dismiss an application without holding a hearing or consultation because the
application does not make out a case. Rule 46 provides:
46. Where the Board considers that an application does not make out a case for the
orders or remedies requested, even if all of the facts stated in the application are
assumed to be true, the Board may dismiss the application without a hearing or
consultation. In its decision, the Board will set out its reasons.
19. Accordingly, the Board can only dismiss an application pursuant to Rule 46 if the Board
assumes, for the purposes of the Rule 46 determination, that all of the facts stated by the applicant in the
application are true, but these facts still do not make out a case for the orders or remedies requested.
20. Aside from dismissing a case under Rule 46, the Board may also decide to not inquire into a
complaint or may dismiss a complaint without a hearing or consultation on other grounds. For example, a
complaint, which alleges a violation of section 74, must be filed pursuant to section 96 of the Act.
Section 96(4) states that the Board "may" inquire into a complaint of a contravention of the Act.
Accordingly, the Board has a discretion by which it can choose to not inquire into a complaint. The
Board may exercises its discretion to not inquire into a complaint for a variety of reasons, such as where
there has been undue delay in filing the application or where the contravention is relatively minor in
nature and, upon taking into consideration and balancing the relative interests of all of the parties
involved, the Board is satisfied that it would not serve a labour relations purpose to inquire into the
complaint.
2 L Also, section 96(4) addresses the issue of what remedies the Board can grant if it finds that
there has been a contravention of the Act. Notably, section 96(4) states that the Board shall determine
"what, if anything" the union or another party shall do or refrain Ii'om doing as a resnlt of the
contravention. Accordingly, the Board again has a discretion to not grant a remedy even where the Board
has found that there has been a contravention of the Act. It has also been held that some remedies are
outside of the Board's jurisdiction to grant.
22. Finally, section 99(3) states that the Board is not required to hold a hearing to decide an
application alleging a contravention of section 74:
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99. (3) The Board is not required to hold a hearing to determine a complaint
under this section.
23. Morc information regarding section 74 complaints and the way they are processed by the
Board, including a discussion of the Board's consultation process, is set out in the Board's Information
Bulletins Numbers 11 and 12.
24. Accordingly, an applicant normally will not be granted a hearing or consultation unless the
applicant can establish the following:
(a) that there is a prima facie case that the union has aeted in a manner that is
arbitrary, discriminatory or in bad faith in its representation ofthe applicant;
(b) that the Board should exercise its discretion under section 96(4) to entertain the
complaint, and
(c) that the Board has the jurisdiction and should exercise its discretion to grant the
remedies requested by the applicant.
25. Should the applicant not establish anyone of these thrce requircments, thc Board has thc
authority to not inquire into the complaint or to dismiss the complaint without first holding a hearing or a
consultation regarding the complaint. Instead, the mattcr will be decided based upon the application, the
responses and any other written information or submissions that are provided to the Board.
Conclusion
26. When asscssing whether this application should be dismissed without a hearing, the Board
must look only at the facts alleged by Mr. Sadghyani in his application and determine whether these
allegations establish at least a prima facie case that Local 444 has contravened section 74. When the
Board reviews the facts alleged by Mr. Sadghyani, it does not appear to the Board that Mr. Sadghyani has
established a primafacie case, for the following reasons.
27. Mr. Sadghyani generally complained that Local 444 has not supported him. However, Local
444 was filed a grievance on his behalf and has referred this grievance to arbitration. It appears that Local
444 has done exactly what a union is normally expected to do in these circumstances. Mr. Sadghyani has
not stated that he has requested Local 444 to file any other grievance regarding any other complaints that
he has had. Mr. Sadghyani has not stated that the grievance has not in fact been scheduled for an
arbitration hearing date. Accordingly, Mr. Sadghyani has not stated that Local 444 has not agreed to
process any grievance that he has asked Local 444 to process.
28. Clearly, it appears that Mr. Sadghyani's frustration arises from his misunderstanding of the
grievance process, as quoted from his application at paragraph 12 above.
29. Mr. Sadghyani states that Local 444 told him that they were "referring this dispute to
arbitration". This is true. Local 444 did so in its April 5, 2004 letter to KGH.
30. However, Mr. Sadghyani appears to be confused by the statement made by KGH in its March
22, 2004 letter to him that "your grievance is denied". Local 444 has also informed Mr. Sadghyani that
KGB has denied his grievance.
31. These are normal steps in the grievance procedure. First, the union must file a grievance.
Second, the employer mllst either accept or deny the grievance. If the eluployer denies the grievance, that
does not end the grievance. Rather, the third step is for the union to refer the grievance (that has been
denied by the employer) to arbitration.
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32. These steps have been followed in this case. Most importantly, Local 444 did agree to file a
grievance on Mr. Sadghyani's behalf and Local 444 did refer Mr. Sadghyani's grievance to arbitration
after KGH denied the grievance. It does not appear that Local 444 has contravened section 74 of the Act
in connection with its processing of Mr. Sadghyani's grievance as of the date of Mr. Sadghyani's
response document which is undated but which was received by the Board on August 30,2004. As such,
this aspect of Mr. Sadghyani's application may be dismissed without an oral hearing or consultation
pursuant to Rule 46.
33. Similarly, Mr. Sadghyani's sole statement that "I quit because I have been forced to quit"
also could be dismissed pursuant to Rule 46 because Mr. Sadghyani has provided no other information
whatsoever regarding his allegation that he quit. Nor has Mr. Sadghyani provided any allegations or
submissions to indicate that Local 444 was in any way involved in or responsible for his alleged quit that
would indicate that Local 444 has contravened section 74 in connection with this quit issue. In the
absence of any such information, allegations or submissions, Mr. Sadghyani has not pleaded a primafcl(:ie
case that Local 444 has contravened section 74 in connection with this issue.
34. This leaves only Mr. Sadghyani's allegations that Local 444 generally did not support him
between October 2003 and August 30, 200iJ in connection with his complaints that he was being harassed
and discriminated against, primarily by Cathy Shaw. Mr. Sadghyani does not state that he requested
Local 444 to file any other grievances on his behalf regarding this, other than his February 24, 2004
grievances. Local 444 did file this grievance. The Board does not necessarily consider these allegations
to establish a breach of section 74. However, even if the Board were to assume that the statements made
by Mr. Sadghyani regarding Local 444's representation of him during this period are accurate, in view of
the fact that Local 444 did file the grievance and has referred this grievance to arbitration, it would most
likely not serve any labour relations purpose to, at this time, conduct a hearing or consultation into
whether Local 444's actions between October 2003 and August 30, 2004 amount to a contravention of
section 74. Rather, such a hearing or consultation would be premature and would not serve a labour
relations purpose. Ultimately, the important issue will be Local 444's representation of Mr. Sadghyani at
the arbitration hearing. Accordingly, the Board may decline to inquire further at this time into this
application pursuant to section 96(4) of the Act
35. Accordingly, Mr. Sadghyani is directed to file with the Board, with a copy to Local 444 and
KGH, by February 15, 2005, any further submissions he may have regarding this matter and in particular
regarding the statements that the Board has made in paragraphs 26 to 34 above. Local 444 and KGH
need not reply to any further submissions that Mr. Sadghyani may file until the Board directs them to do
so.
36. Upon receiving Mr. Sadghyani's further submissions, or after February 15, 2005 in the
absence of receiving such submissions, the Board will rendcr a further decision in this matter. Mr.
Sadghyani must be aware that in this further decision the Board may decide to not entertain this
application or may decide to dismiss this application without a consultation or an oral hearing.
"Peter F. Chauvin"
for the
Board
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This document: 2005 CanUI '16312 (ON L..RB.)
Citation: Sadaghyani v Ontario Public Service Employees Union, Local
LRB.)
Date: 2005-05-02
Docket: 1651-04U
2005 CanL11 'l6312 (ON
1651-04-U Abbas Sadaghyani, Applicant v. Ontario Public Service Employees Union, Local
444, Responding Party v. Kingston General Hospital, Intervenor.
BEFORE: Peter F. Chauvin, Vice-Chair.
DECISION OF THE BOARD; May 2, 2005
Application withdrawn with leave ofthe Board.
"Peter F. Chauvin"
-.-c..ccJor the
Board
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