“It is not the Board’s role to chase” unrepresented employee: safety-reprisal complaint dismissed

The Canada Industrial Relations Board has dismissed a safety-reprisal complaint where the employee, representing himself, missed deadlines and failed to respond to CIRB correspondence.

The employee filed a complaint alleging that his employer took action against him for exercising his safety rights, contrary to the Canada Labour Code.  The employer said that the employee’s job performance was the reason for taking action against him.

The CIRB asked both parties for more focused submissions.  The employee did not provide his submission within the time frame set by the CIRB.  The CIRB then extended that time frame after the employee said that he had moved.  The employee then failed to open the CIRB’s registered letters or keep the CIRB apprised of any further changes in his address.

The CIRB quoted from a previous decision, Reid2013 CIRB 693 (CanLII), in which it had stated:

“As mentioned above, the Board is fully aware that Ms. Reid, like many unrepresented litigants, may not be familiar with the Code. But a complainant still has the ultimate obligation of going through his/her own material, including allegedly relevant documents, and drafting a complaint in accordance with the Regulations.  That obligation is not satisfied by filing hundreds of pages of documents and implicitly asking the Board to go through it and decide what, if anything, should form part of a complaint.”

The CIRB ultimately concluded:

“In this case, Mr. Shmig claimed in a discussion with the IRO that he never received the Board’s decision requesting more particularized pleadings. The IRO sent him another copy of the decision.  When Mr. Shmig failed to provide the requested pleading, he claimed in another discussion with the IRO that the emailed copy of the decision had never reached him.  Finally, after the Board granted Mr. Shmig an extension to file the requested particulars, Mr. Shmig failed to pick up two separate Board mailings which had been couriered to his last known address.

Ultimately, it is not the Board’s role to chase after a party for its pleading. The Board is satisfied that it provided Mr. Shmig with several opportunities to pursue his complaint. For whatever reason, Mr. Shmig chose not to do so.”

The employee’s complaint was therefore dismissed.

Shmig, 2014 CIRB 724 (CanLII)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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