The URL can be used to link to this page

Home My WebLink About2386-02-U - Mrowinski 04-03-04 Mrowinski v. Ontario Public Service Employees Union, 2004 CanLII 23663 (ON L.R.B.) Page I of 3 Ontario >> Ontario Labour Relations Bocmj >> This document: 2004 CanU! 23663 (ON LRB.) Citation: Mrowinski v Ontario Public Service Employees Union, 2004 CanL11 23663 (ON L R B ) Date: 200403-04 Docket 289202U 2892-02-U Janet Mrowinski, Applicant v. Ontario Public Service Employees Union (OPSEU), Responding Party v. The Crown in Right of Ontario (Ministry of Community, Family & Children' s Services), Intervenor. BEFORE: Timothy W. Sargeant, Vice-Chair. DECISION OF THE BOARD; March 4,2004 I. This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the responding party had breached section 74 ofthe Act. 2. By decision dated March 17,2003 the Board stated at paragraphs 4 and 5: In this instance given that the date when the grievances of the applicant are scheduled to be heard+ is as early as April 16, 2003, the Board is of the view that in the interests of good industrial relations it should adjourn this application sine die until after the matters referred to the Grievance Settlement Board have been heard. (See Valda Inc., [1980] OLRB Rep. Aug. 1254). Thus, the Board exercises its discretion and adjourns this application sine die for a period not exceeding one year following April 16, 2003. Unless within that time any party requests that the Board proceed with the matter, it will be deemed terminated without any further notice to the parties. 3. Subsequently three grievances were heard by the Grievance Settlement Board on April 16 and August 12, 2003. The hearing had commenced on January 24, 2002. The Vice-Chair hearing the matter was Ms. Janice Johnston. 4. In a lengthy decision Ms. Johnston concluded for reasons set out that "Accordingly, as the union was unable to put forward any evidence to substantiate the three grievances, I have no choice but to dismiss them". 5. By letter dated February 9, 2004 (received by the Board on February 12, 2004) the applicant complains that for various reasons the decision of Ms. Johnston is flawed. The applicant complains that the matter was illegally switched from another Vice-Chair to Ms. Johnston and this could "only be accomplished by conspiracy of the Union and Ministry". The letter then in general length goes on to allege wrongdoing on behalf of the union and "Arbitrator" ("Ms. Johnston"). It alleges a forgery and a cover-up. It is obvious that the complaint is for the most part written by the complainant's father. In conclusion the Jetter states: http://www.canlii.org/on/cas/onlrb/2004/2004onlrb 11136.html lO/3/2005 Mrowinski v. Ontario Public Service Employees Union, 2004 CanLII 23663 (ON L.R.B.) Page 2 of 3 The grievance hearing had no legal standing. The decision rendered is devoid of the issue, namely the grievor's human rights, the discrimination in the Memorandum of Settlement, the forgery and the concealment and the false pretense representation by the Union lawyers. The decision provides evidence of the Union and the MinistJy involvement in the above stated misdeeds. The GSB found it more important to obliterate the accusation of wrong doings, then to provide or conduct a fair hearing. The Labour Relation Board was created to deal with section 74 complaints, to enable an aggrieved employee to obtain adequate, inexpensive and quick relicvc from the Board rather than from the courts. As stated in the Standards of fair representation. It also states, the representation by the Union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee, as stated by the Supreme Court of Canada. This can be found in the Ontario Labour Relations Board Law and Practice paragraph 8.371 and 8.372. A hearing is needed to bring the charade to an end. Please arrange a date. Thank you. 6. The Board has reviewed the decision of Ms. Johnston. It is evident that the hearing was difficult in that Mr. Mrowinski commenced by "stating his daughter was no longer prepared to be represented by the Union". Mr. Mrowinski however agreed to proceed. The decision goes on to read: Ms. Mrowinski is disabled. Although she is developmentally handicapped, the union did not take the position that she was incompetent or unable to testify in the proceedings. However, during our discussions on April 16th her father indicated to me that he felt that she was not fit to testify and that he should be able to give evidence on her behalf. I advised him that unless his daughter was incompetent or otherwise unfit to testify, she would have to give evidence to support the allegations of discrimination and harassment on the part of the employer and members of management that she had alleged. I told him that he could not testify about events that he had no first-hand knowledge of as he would simply be relating hearsay evidence concerning what he thought his daughter had experienced. Frankly in the circumstances of this case, I cannot think of any evidence which would have been more unreliable. At the end of our discussions, we agreed that the counsel would discuss the possibility of an agreed statement of fact which would limit the evidence to be called by the union through the gnevor. On the next day scheduled to deal with this case, Mr. Mrowinski commenced by stating that his daughter was no longer prepared to be represented by the union. Although the same union counsel who had previously appeared was present, he now objected to being represented by that counsel as welL However, he agreed to proceed. 7. Ms. Johnston thrther notes: Before leaving this matter, I would like to commend counsel for the union and the employer for their patience and understanding in dealing with a difficult situation. It is unfortunate that the grievor's father refused to accept the advice he was being given by both the union counsel involved in this case. His refusal to allow his daughter to testify tied the hands of union counsel and unfortunately led directly to the dismissal of the grievances. In my view, the counsel retained by the union to represent the grievor did so in an extremely competent and capable manner. Accordingly, as the union was unable to put forward any evidence to substantiate the three grievances, I have no choice but to dismiss them. http://www.canlii.org/on/cas/onlrb/2004/2004onlrb 1ll36.html 10/3/2005 Mrowinski v. Ontario Public Service Employees Union, 2004 CanLII 23663 (ON L.R.B.) Page .3 of 3 As stated above in the result the grievances were dismissed. 8. The decision of the Grievance Settlement Board is not a decision that this Board has authority to overturn. Though the complaint alleges a conspiracy between the Ministry and the Union there is just not a scintilla of evidence to support such an allegation. 9. Further, though the complainant obviously disagrees, the Vice-Chair of the Grievance Settlement Board stated that "In my view, the counsel retained by the Union to represent the grievance did so in an extremely competent and capable manner". It is noted in the decision that the complainant refused to testify and that although Mr. Mrowinski indicated that his daughter was no longer prepared to be represented by the union, he agreed to proceed. 10. As noted in its decision of March 17, 2003, the Board has a discretion under section 96 as to whether to consider an application brought pursuant to section 74 of the Act and whether it proceeds to hearing. II. In considering this matter, I am cognizant of the t~lct that the Union did proceed to have the applicant's grievances heard before the Grievance Settlement Board. The Union did provide representation, and although the applicant alleges that the represeutation was contrary to section74 of the Act, the Vice-Chair of the Grievance Settlement Board hearing the matter found the representation to be "extremely competent". Further a decision has been rendered by the Grievance Settlement Board that this Board would have no jurisdiction to overturn. Though the applicant is obviously unhappy with the result of the Grievance Settlement Board decision, an application under section 74 is not a vehicle that is available to re-litigate a decision of another tribunal. In the circumstances, I am of the view that the conduct of the union cannot be characterized as conduct that is arbitrary, discriminatory or in bad faith within the meaning of section 74 of the Act. 12. Accordingly the Board, for all of the above reasons, exercises its discretion and determines that it will not proceed further with this matter, and therefore dismisses this application. "Timothy W. Sargeant" for the Board [About CcmLJI] [Conditions of LJSE:] [AdvcmCE:d SE:;:uch] [HE:lp] [Frangais] [Privacy Policy] [Mailing Lists] [TechniGal LibrClry] [Contact CClnLlI] by / te)(UM __._...___....___.__..______...___......._._..................._......_.._..__.__._ fOf [118 r'8dl]ftJfiof] of Law Sc,ci8;Jjt's 61 Cmfi.Hb "-" http://www. canlii. org/ onl cas/ onlrb/2004/20040nlrb 1113 6.html 10/3/2005