Lumley v. Trillium Lakelands District School Board, 2010 HRTO 1117

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry Lumley

Applicant

-and-

Trillium Lakelands District School Board

Respondent

-and-

Canadian Union of Public Employees, Local 997

Intervenor

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: May 19, 2010

Citation: 2010 HRTO 1117

Indexed as: Lumley v. Trillium Lakelands District School Board

AppearanceS BY

Terry Lumley, ) On His Own Behalf Applicant )

Trillium Lakelands District School Board, ) Carolyn Kay, Respondent ) Counsel )

Canadian Union of Public Employees, Local 997, ) Sue Lott, Intervenor ) Counsel

BACKGROUND

1This Application was filed on May 5, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges his employer, the Trillium Lakelands District School Board (the “Employer”), discriminated against him when it refused to accommodate his disability, put him on an absenteeism program and subsequently terminated his employment.

2By Interim Decision dated September 28, 2009, the Tribunal granted the Request of the Canadian Union of Public Employees, Local 997 (the “Union”) to intervene in the Application. See 2009 HRTO 1571.

3This Interim Decision addresses the Employer’s Request to dismiss the Application because of a settlement between the Employer and the Union. Alternatively, the Employer asks the Tribunal to defer consideration of the Application pending the conclusion of all appeals before the Workplace Safety and Insurance Board (the “WSIB”).

4A hearing was held on April 12, 2010 to deal with the Employer’s Request for an order. The Employer called two witnesses to testify: Earl Manners, the Employer’s Human Resources Administrator and Kerrie Wright, the Employer’s Attendance and Disability Management Officer. The applicant testified on his own behalf.

THE FACTS

5The applicant commenced employment with the Employer as a full-time custodian in May 1990. He was a member of the Union in this position. In September 1993, he suffered a workplace injury to his right knee for which he received WSIB benefits.

6On December 16, 2005, the applicant’s employment was terminated. The Employer asserted the applicant was terminated for cause, namely for: being absent without permission, abandonment of position, insubordination and inappropriate behaviour.

7On December 22, 2005, the Union filed a grievance concerning the applicant’s termination.

8Some time in July 2006, the Union advised the applicant that its Grievance Committee had decided not to advance his grievance to arbitration. The applicant was further advised that he could appeal this decision to the Union membership at its Regular General Meeting on October 21, 2006.

9The applicant did not attend the Regular General Meeting on October 21, 2006 and no appeal of the Union’s decision was made.

10On November 8, 2006, the Union advised Mr. Manners that it accepted, on behalf of the applicant, the Employer’s offer to settle the grievance pursuant to a draft Memorandum of Agreement, dated July 2006.

11On November 8, 2006, the Employer forwarded the Memorandum of Agreement to the applicant for the settlement of his grievance and requested that he sign the agreement. The Memorandum of Settlement required the signature of the Employer, the Union and the applicant.

12The applicant did not sign the Memorandum of Settlement nor did the Employer nor the Union.

13On February 17, 2009, the applicant requested reinstatement of full WSIB benefits because he was terminated by the Employer on December 16, 2005. The Employer made submissions to the WSIB on the applicant’s request.

14By decision dated June 11, 2009, the WSIB denied the applicant’s claim for reinstatement of full benefits. The WSIB held the applicant was terminated for reasons unrelated to his work injury. The WSIB held further that the applicant would have been accommodated by the Employer with suitable work with no wage loss had he not been terminated for reasons unrelated to the injury.

15The applicant filed an objection to the June 11, 2009 decision. This objection remains outstanding before the WSIB Appeals Branch. The Union is representing the applicant on the objection. The Employer is participating in the objection.

16There has been no hearing date scheduled for the objection.

ANALYSIS

Settlement

17The Employer submits the Application should be dismissed because it would be an abuse of the Tribunal’s process to proceed in light of the settlement that was agreed upon between the Employer and the Union. The Employer relies on section 45.1 of the Code which reads as follows:

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.

18The Tribunal has held that the settlement of a matter commenced before a different tribunal may be a “proceeding” that has “dealt with the substance” of the application within the meaning of section 45.1.

19The Employer relies on the Union’s agreement to settle the grievance on the terms set out in the draft Memorandum of Agreement as the settlement for the purposes of section 45.1.

20There is no dispute that the applicant did not agree to the terms of settlement in the Memorandum of Agreement nor did he sign the agreement. The issue before me is whether a settlement between the Union and the Employer can be relied upon to dismiss the Application.

21There are strong public policy reasons to support settlement agreements in the unionized environment. These include promoting effective resolution of workplace disputes and encouraging the finality and certainty of settlement agreements. These reasons were articulated by the Tribunal in Dunn v. Sault Ste. Marie (City), 2008 HRTO 149. However, there are equally strong policy reasons to require an employee’s agreement to a grievance settlement before considering whether that settlement appropriately dealt with the substance of his human rights complaint.

22Under the terms of the collective agreement, the parties to the grievance are the Union and the Employer. The Union has the right to decide whether to proceed with the grievance and it may, in fact, settle the grievance. The question before me is not whether the Union had the right to settle the grievance: the question is whether that settlement can prevent the Application from proceeding before the Tribunal.

23To find a settlement has appropriately dealt with the substance of a human rights application, the applicant must be a party to that agreement. To put it simply, the applicant must receive some benefit from the agreement. How else can it be said that the applicant’s application has been dealt with under the terms of the settlement? To hold otherwise would allow employers and unions to potentially bar human rights complaints on the basis of a settlement between them.

24Although the Union purported to settle the grievance, there is no valid settlement in effect. The Memorandum of Agreement requires the signatures of the applicant, the Union and the Employer. It has not been signed nor acted upon. If there is no settlement, it cannot be said that the applicant’s complaint has been appropriately dealt with. Accordingly, section 45.1 of the Code cannot be relied upon to dismiss the Application against the Employer. The Employer’s Request to dismiss on this basis is denied.

Deferral

25Pursuant to section 45 of the Code, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal must consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

26The applicant alleges that the respondent discriminated against him because of his disability when it failed to accommodate his work-related injury, put him on an absenteeism program and terminated his employment. The respondent asserts these issues are before the WSIB on the objection of the June 11, 2009 decision, and that the Tribunal should therefore defer hearing the Application.

27Deferral of an Application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

28Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

29Applying these principles to this case, I find it is appropriate to defer this Application pending the conclusion of the WSIB appeal processes, including an appeal to WSIAT, if made. The WSIB (and WSIAT) will consider the suitability of the modified work provided and the question of whether the termination of the applicant’s employment was related to his workplace injury. These are the same issues before the Tribunal. If the applicant’s position is upheld, he will be entitled to Loss of Earning benefits which may affect the damages awarded by the Tribunal if this Application is allowed. All of these factors support deferral. Also important is the fact that the applicant has the assistance of the Union on the WSIB objection whereas he is self-represented in this Application. For these reasons, the Application is deferred.

30Within 60 days of the completion of the WSIB appeal processes, including an appeal to WSIAT if any, the applicant may seek to have this Application brought back for processing by contacting the Registrar-Transition.

31I am not seized in this matter.