Mickle v. ArvinMeritor Canada, 2010 HRTO 1261

Human Rights Tribunal of Ontario

BETWEEN:

Laurie Mickle Applicant

-and-

ArvinMeritor Canada, Mike Fife, Mike Slater, Kenneth Breault, CAW-TCA Canada (Canadian Auto Workers Union of Canada), Jerry Diaz, Richard Lafferty, Sean O’Donnell, Michael Byrne, Steven Travis, Curtiss Ladd, Chris Mason, and Terry Scratch Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: June 3, 2010 Citation: 2010 HRTO 1261 Indexed as: Mickle v. ArvinMeritor 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”), in which she alleges discrimination on the basis of disability in employment.

2All of the respondents have filed Responses. The respondents ArvinMeritor Canada, Mike Fife, Mike Slater, and Kenneth Breault (the “Employer respondents”) request the early dismissal of the Application because the applicant has signed a full and final release with respect to the same matter.

3The purpose of this Interim Decision is to address the Employer respondents’ request for the early dismissal of the Application.

BACKGROUND

4The respondent, ArvinMeritor Canada (“ArvinMeritor”) closed its Canadian plant effective June 3, 2009. Persons employed by ArvinMeritor at the time of closure received severance packages, the terms of which were negotiated between ArvinMeritor and the Canadian Autoworkers Union of Canada (“CAW”).

5The negotiated severance packages distinguished between active and inactive employees. The latter group received severance packages which compensated them at a lower rate than active employees.

6While there is a dispute about the applicant’s status at the time of the plant closure, it is clear that she was in receipt of Workplace Safety and Insurance Board benefits at the time and that, whatever her seniority status, she was not actively at work. The applicant received the severance package for inactive employees.

7The CAW, Jerry Diaz, Richard Lafferty, Sean O’Donnell, Michael Byrne, Steven Travis, Curtis Ladd, Chris Mason, and Terry Scratch (the “Union respondents”) state that the distinction between active and inactive employees does not constitute discrimination under the Code. The Union respondents state that, while the difference in severance packages was not acceptable to the Union at the time, it was “caught between a rock and a hard place” in its attempts to achieve the best arrangement for all of its members in the circumstances.

8The Employer respondents deny the allegations of discrimination. They state that the applicant executed a “Request for voluntary termination of employment and severance agreement”, which they say constitutes grounds for early dismissal of the Application.

9In the severance agreement, the applicant waives all seniority rights, recall rights and rights to employment under the collective agreement. In addition, the severance agreement states:

I acknowledge that my employment with the Company is terminated effective March 20, 2009 and that I shall have no right to recall or re-employment or to any further compensation from the Company and no basis for any complaint or claim against the Company relating to the abandonment of my rights to recall.

10The applicant filed a Reply in which she submits that the document she signed cannot be construed as a release of her rights under the Code.

ANALYSIS

11The severance agreement contains no reference to the Code or to human rights claims. While it contains a waiver of the applicant’s rights to file a claim against the Company, I understand that waiver to be specific to recall rights and their abandonment.

12The subject matter of the Application is different from that addressed in the severance agreement signed by the applicant. The document signed by the applicant contains no release language regarding the Code and, in my view, does not bar the applicant from proceeding with this Application before the Tribunal.

13Accordingly, the Employer respondents’ request to dismiss the Application is denied.

14I am not seized of this matter.