Linda Denkewich v. Ontario Public Service Employees Union, 2009 HRTO 2230

Human Rights Tribunal of Ontario

Between:

Linda Denkewich Applicant

-and-

Ontario Public Service Employees Union and Stephen Saysell Respondents

Linda Denkewich Applicant

-and-

Liquor Control Board of Ontario, Camille Clements-Pitchkur, Stephen Young and Wayne Wood Respondents

Decision

Adjudicator: Kaye Joachim Date: December 18, 2009 Citation: 2009 HRTO 2230 Indexed as: Denkewich v. Ontario Public Service Employees Union

Appearances

Linda Denkewich, Applicant (Self-represented)

Ontario Public Service Employees Union and Stephen Saysell, Respondents (Nini Jones, counsel)

Liquor Control Board of Ontario, Camille Clements-Pitchkur, Stephen Young and Wayne Wood, Respondents (Adrienne Couto, counsel)

Background

1These Applications were filed June 22, 2009, under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). The Applications allege discrimination in employment on the basis of disability.

2The institutional respondent in TR-0542 is the union that represents the applicant and the personal respondent is a union official (the "union respondents"). The corporate respondent in TR-0543 is the applicant's employer and the personal respondents are managerial employees with the corporate respondent (the "employer respondents"). Both respondents sought early dismissal of the Application. The union respondents assert that the application does not set out any facts which could found a claim of discrimination against them. The employer respondents assert that the applicant had settled a grievance based on the same facts and signed a release.

3A hearing was held on December 14, 2009 to hear the respondents' preliminary request. The following persons testified: the applicant, Camille Clements-Pitchkur, Human Resources Manager, Stephen Young, District Manager and Stephen Saysell, grievance officer.

Nature of the Applications

4The applicant was hired a casual employee in July 1987. In April 2003 she experienced a work injury resulting in permanent restrictions in the use of her right arm. The union filed grievances on her behalf in November and December 2003.

5The applicant returned to work in April 2005 and asserts she experienced a poisoned work environment at Store #175. When she reported this to the union, the respondent Saysell advised her to document her experiences which she did.

6In July or August 2005 the applicant's union filed a grievance on her behalf relating to alleged harassment by the manager at her store. The applicant asserts that the harassment escalated after the grievance.

7On December 1, 2005 the applicant, the union and the employer signed Minutes of Settlement resolving the grievance and releasing the respondent from all claims under the Human Rights Code.

8On January 11, 2006 the applicant filed complaints alleging discrimination between April and December 2005.

Settlement

9The applicant complains that her grievances were not filed promptly enough and she expresses dissatisfaction with settlements entered into in respect of those grievances. The Union submits that these allegations relate to a breach of the duty of fair representation and fall within the exclusive jurisdiction of the Ontario Labour Relations Board.

10The parties signed a settlement of the applicant's 2003 grievances on June 9, 2005. The terms of the settlement specifically released the employer from all actions against it under the Human Rights Code up to the date of the agreement.

11On December 1, 2005 the parties signed minutes of settlement that released the employer from all actions against it under the Human Rights Code up to the date of the agreement.

12The next day, the applicant contacted the respondents seeking to withdraw her agreement.

13The applicant states that she experienced duress at the December meeting and was impaired by lack of sleep and tranquilizers and excessive fear and anxiety. She submitted no medical evidence to corroborate her self-reported state of mind. I am not satisfied that the applicant was so impaired that she did not understand the implication of signing the document.

14The applicant testified that she felt pressured by Stephen Young and Stephen Saysell to sign the document and they misled her by stating that despite the Minutes, she could continue with her grievance. Mr. Young and Mr. Saysell denied these statements and denied meeting together with the applicant before she signed the Minutes. Mr. Saysell states that he considers himself the representative and does not allow the managerial employees to speak directly with grievors. Their version was also corroborated by Ms. Clements-Pitchkur.

15I do not accept the applicant's evidence that she was pressured to sign the Minutes or that she misunderstood that the grievance would be over.

16I am satisfied that the applicant signed Minutes of Settlement that effectively released the employer respondents from any claims of discrimination up to December 1, 2005. It would be an abuse of the Tribunal's process to permit her to raise the allegations of discrimination set out in her Application.

Union Application

17I agree with the respondents that the allegations against the Union raise matters of the duty of fair representation, over which the Tribunal has no jurisdiction. Nothing in the Application raises any facts that could give rise to a finding that the union respondents discriminated against the applicant on the basis of her disability: Arias v Centre for Spanish Speaking Peoples, 2009 HRTO 1025.

18The Applications are dismissed.