HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Chaundell Henderson
Applicant
-and-
Nutech Fire Protection and Jason Guja
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Henderson v. Nutech Fire Protection
[ 1 ] This Interim Decision deals with the respondents request for early dismissal of the Application under s. 45.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), based on an Employment Standards Officer’s decision, which the respondents state has appropriately dealt with the substance of the Application.
[ 2 ] The applicant filed her Application on December 7, 2009, under s. 34 of the Code, alleging discrimination in employment on the basis of sex, family status and reprisal or the threat of reprisal. The applicant alleges that, as a consequence of her having informed the personal respondent on November 12, 2008 that she was pregnant, restrictive changes were made to her job description and terms of employment, and to the job description and terms of employment of the father of her child, Frank Perilli, who was also employed by the corporate respondent.
[ 3 ] On December 15, 2008 the applicant’s counsel wrote to the personal respondent to state that the respondents actions in relation to the applicant could lead the applicant to pursue claims under the Employment Standards Act, 2000, S.O. 2000, c. 41 as amended (the “ESA”) and the Code.
[ 4 ] The applicant alleges that the respondents subsequent decision to deny her a Christmas bonus and the termination of her employment on December 29, 2008 were related to her sex and family status and in reprisal for her attempting to enforce her rights under the Code by means of the December 15, 2008 letter sent to the personal respondent by the applicant’s counsel.
[ 5 ] The respondents deny the applicant’s allegations. They contend that the applicant’s attitude and behaviour had been an issue for the organization since before she indicated that she was pregnant. The respondents submit in their Response that the revised job descriptions given to the applicant and Mr. Perilli in November 2008 were done in large part to control the non-business usage of cell phones and vehicles and were not intended to single out the applicant (and Mr. Perilli). The respondents contend the revised job requirements had been prepared before the respondents knew that the applicant was pregnant and that these job requirements were eventually agreed to by all sales staff.
[ 6 ] The respondents contend that on December 29, 2008 Mr. Perilli threatened the personal respondent in a manner that implied a threat of physical violence and consequently his employment was terminated immediately. The respondents allege that the applicant then refused to return to her work duties, despite repeated requests and subsequently swore at the personal respondent and suggested that “This is going to cost you a lot of money in lawyer’s fees”. The respondents state that the applicant’s employment was then terminated for uttering rude language, disrupting the office and refusing to return to work.
[ 7 ] The applicant filed a claim with the Ministry of Labour alleging a contravention of the ESA on January 19, 2009. The applicant’s claim was that the terms and conditions of her employment were changed because she was pregnant. She further claimed that her and Mr. Perilli’s Christmas bonuses were withheld and they were both subsequently terminated because the applicant had asked the personal respondent to comply with the ESA and because she was pregnant.
[ 8 ] On April 16, 2009 an Employment Standards Officer held a meeting to consider the applicant’s claim. On May 13, 2009 the Officer released her decision. The Officer found that the decision to develop and implement a new job description for the applicant was not related to her pregnancy and interest in a maternity leave. The Officer found that the terminations of the applicant and Mr. Perilli’s employment were a result of their own actions and as such were not reprisals under section 74 of ESA. The Officer found that the decisions not to give the applicant and Mr. Perilli bonuses were motivated, at least in part, by the applicant asking, via her lawyer’s letter of December 15, 2008 to comply with the ESA and, as such, the failure to award these bonuses was a contravention of section 74 of the ESA. The Officer ordered the corporate respondent to pay the applicant $1,800: $1,500 for pain and suffering and $300 for the bonuses lost by the applicant and Mr. Perilli.
[ 9 ] The decision of the Employment Standards Officer, which was before me, notes that the applicant had 30 days from the date of being served with that decision to apply to the Ontario Labor Relations Board for a review of the decision. There is nothing before the Tribunal indicating that the applicant exercised this right.
DEcision
[ 10 ] Section 45.1 of the Code states:
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.
[ 11 ] The issue before the Tribunal is whether the determination of the applicant’s claim under the ESA by the Employment Standards Officer was a proceeding which appropriately dealt with the substance of the Application in whole or in part within the meaning of section 45.1 of the Code. In making such a determination, the Tribunal will generally consider whether there has been a “proceeding” within the meaning of s. 45.1 of the Code, and if so, whether it has “appropriately dealt with the substance of the Application”.
[ 12 ] Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. Accordingly, the Registrar will schedule a half day hearing whether the Application should be dismissed in whole or in part under s. 45.1.
[ 13 ] The parties are not required to provide any documentary disclosure at this point in time. However, if any party wishes to rely on written material not already filed with the Tribunal or any facts not contained in the Application, Response or Reply, the party should deliver such documents or information to the other parties and file the same with the Tribunal no later than 14 days before the scheduled hearing.
[ 14 ] In preparing for the hearing, the parties may wish to review section 45.1 of the Code, Rule 22 of the Tribunal’s Rules of Procedure, the Tribunal’s case law on those provisions (found at www.canlii.org) and the Tribunal’s Applicant’s Guide and Guide to Preparing for a Hearing before the HRTO available on the Tribunal’s website (www.hrto.ca) or from the Registrar’s office.
[ 15 ] I am not seized of this matter
Dated at Toronto, this 31st day of May, 2010.
“Signed by”
Eric Whist
Vice-chair