Christy Little v. TeleTech Canada Inc., 2009 HRTO 1763

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christy Little

Applicant

-and-

TeleTech Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: October 26, 2009

Citation: 2009 HRTO 1763

Indexed as: Little v. TeleTech Canada

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) on May 15, 2009. She alleges discrimination in the context of employment on the basis of disability.

2This Interim Decision addresses the respondent’s contention that the Application is barred by section 45.1 of the Code as another proceeding has appropriately dealt with the substance of the Application. The respondent relies upon the decision of an employment standards officer under the Employment Standards Act, 2000, S.O. 2000 c. 41, as amended (“ESA”).

3The respondent argues that the ESA decision appropriately dealt with the substance of the Application since the employment standards officer found that the applicant was terminated for violation of company policy, not because of any discrimination.

4The applicant responded to the issue in her Reply. She argued that her position is not only that her termination was a form of discrimination, but also that her employer created a poisoned work environment and failed to accommodate her disability during the course of her employment.

ANALYSIS

5Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

6In the circumstances, it is appropriate to deal with the respondent’s request for an early dismissal of the Application as a preliminary matter.

Did the ESA proceedings deal with the substance of the Application?

7In essence, the Application alleges discrimination based on the following three elements:

a. a poisoned work environment;

b. a lack of workplace accommodation; and

c. the termination of the applicant’s employment.

8The ESA decision deals with the applicant’s claim for vacation pay and whether the applicant’s employment was terminated for just cause or whether (as the applicant alleged) discriminatory factors played a role in the termination.

9In my view, there is an overlap in the subject matter of the two proceedings in regards to the termination of the applicant’s employment and her allegations that her disability was a factor in the respondent’s decision to terminate her employment.

10However, I find that the ESA proceedings did not deal with all of the issues raised in the Application. More specifically, they did not address either the alleged poisoned work environment or the alleged failure to accommodate the applicant’s disability in the workplace.

Did the ESA proceedings appropriately deal with the issue of the termination of the applicant’s employment?

11In order to determine whether another proceeding has appropriately dealt with the substance, in whole or in part, of the Application, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding and whether the substance of the issues raised in each forum was substantially the same. See Rotondo v. Village Millcraft Apartments, 2009 HRTO 313

12In Noble v. York University, 2009 HRTO 1201, the Tribunal held that in determining whether to exercise discretion under section 45.1, the question is not whether an applicant received the result and remedy she was seeking in the other proceeding, but whether there was a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code.

13Human rights issues, such as those raised in the Application, can be addressed in the ESA process. See Calabria v. DTZ Barnicke, 2008 HRTO 411.

14In the circumstances of this case, the employment standards officer concluded that the applicant had wilfully disregarded company policies relating to behaviour and the handling of customer accounts. He rejected the applicant’s argument that her disability or absences from work were a factor in the termination of her employment. Instead, he found that she was terminated because she violated company policies.

15I am satisfied that the ESA proceeding in this case dealt with the issue of the applicant’s termination. I also find that, in regards to the termination, the ESA claim raised substantially the same human rights issues as the Application. I am also satisfied that the applicant has had a full and fair opportunity to have the human rights aspects of the termination of her employment considered by an adjudicator who had the jurisdiction to interpret and apply the Code.

16The request for dismissal under s. 45.1 is granted in part. The portion of the Application (paragraphs 25 - 29) which relates to the termination of the applicant’s employment is dismissed. The remainder of the Application, which relates to the alleged poisoned work environment and the alleged failure to accommodate the applicant’s disability, shall be scheduled for hearing.

17I am not seized of this matter.