Lacey Appleton v. Coca Cola Bottling Company, 2009 HRTO 1998

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lacey Appleton

Applicant

-and-

Coca Cola Bottling Company, Jazmin Kozlowsky and Paul Moriarty

Respondents

-and-

Canadian Auto Workers Local 1575

Intervenor

INTERIM DECISION

Adjudicator: Alan Whyte

Date: November 24, 2009

Citation: 2009 HRTO 1998

Indexed as: Appleton v. Coca Cola Bottling

Reasons for Decision

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) in which the applicant alleges discrimination in employment on the grounds of sex, family status, association with a person identified by a ground of discrimination, as well as reprisal.

2The respondents allege that another proceeding, specifically a grievance proceeding, has appropriately dealt with the substance of the Application and that it therefore should be dismissed pursuant to section 45.1 of the Code. Alternatively, the respondents submit that a deferral of this Application should be made pending the outcome of the grievance proceeding.

3By letter dated October 29, 2009, the Tribunal provided an opportunity to the applicant to file submissions with respect to the respondents’ request for dismissal. No submissions have been received and the time for filing has now passed.

4The applicant’s bargaining agent, Canadian Auto Workers Local 1575 ("the union"), has filed a Request to Intervene. The respondents do not object to the union's intervention but submit that the union's participation should be limited to the filing of written submissions with respect to remedy that might affect the operation of the collective agreement.

5This Interim Decision will address the respondents’ preliminary issues and the union's Request to Intervene.

6The applicant worked as a summer student at Coca-Cola ("the company") for a number of years. She alleges that the company discriminated against her on the basis of sex and family status as a result of the company not scheduling her for any work over the Christmas 2008 season.

7The union filed a grievance on behalf of the applicant on December 22, 2008, which at least superficially appears to raise the same issues as in this Application. An oral settlement of the grievance was negotiated on April 15, 2009, which resulted in the applicant being hired once again for employment during the summer of 2009. The company alleges that the union has refused to sign written minutes of settlement of the grievance, as a result of which the company says that the grievance is likely to proceed to an arbitration hearing.

8The company further alleges that at the end of June, 2009, before it had any notice of this Application, the company advised the union that it would not assign any more shifts to the applicant unless the minutes of settlement were finally executed. The union refused to sign the minutes of settlement, as a result of which the company stopped assigning shifts to the applicant as of July 11, 2009.

9The union has a clear interest in the outcome of this Application, at least with respect to remedy. The union submits that if the applicant is successful and is awarded reinstatement to her past employment, it will have an interest with respect to compensation as well as any retroactivity of days worked, which may affect the seniority rankings of not just the applicant but other summer/temporary employees. The union also submits that if the applicant is successful it is possible that she could become a regular/full-time employee of the company.

10The union's Request to Intervene is granted. With respect to the extent of the union's participation in this matter, that will be left to the discretion of the Vice-chair hearing this case.

11There is no indication in the Response as to the exact status of the grievance. The party which filed a grievance, the union, did not address this issue in its Request to Intervene, and in fact, indicated that at the time of the filing of the Request to Intervene, the union had not received the Response.

12The Tribunal requires further information from the union before deciding the s. 45.1 and deferral issues. The union is directed to provide to the other parties and file with the Tribunal submissions within 14 days of the date of this Interim Decision addressing:

• the union's position with respect to whether or not the December 22, 2008 grievance has been settled on a final basis;

• the union's position with respect to the section 45.1 issue, and in particular, whether the grievance has “appropriately dealt with” the substance of this Application;

• the exact status of the grievance, and in particular, whether the union intends to refer the grievance to arbitration, and if so when;

• the union's position with respect to the deferral issue.

13The respondents and the applicant may respond to the union's submissions within 21 days of the date of this Interim Decision.

14Following receipt of the parties’ submissions, the Tribunal will issue further directions and/or decide the issues.

15I am not seized of this matter.