Rumble v. National Automobile, Aerospace Transportation and General Workers Union of Canada, Local 636, 2010 HRTO 1535

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Rumble

Applicant

-and-

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 636, Bart Ware and Peter Birmingham

Respondents

AND B E T W E E N:

William Rumble

Applicant

-and-

TRW Kelsey-Hayes

Respondent

INTERIM DECISION

Adjudicator: Dale Hewat

Date: July 15, 2010

Citation: 2010 HRTO 1535

Indexed as: Rumble v. National Automobile, Aerospace Transportation and General Workers Union of Canada, Local 636

APPEARANCES BY

William Rumble, Applicant ) On his own behalf

National Automobile, Aerospace, Transportation ) and General Workers Union of Canada ) Niki Lundquist, (CAW-Canada), Lcoal 636, Bart Ware and ) Counsel Peter Birmingham, Respondents )

TRW Kelsey-Hayes, Brenda Brown, ) Michael D. Failes Jack Carter and Rick Comrie, Respondents ) Counsel

INTRODUCTION

1These Applications were filed under s. 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”) with respect to the applicant’s original complaints made to the Ontario Human Rights Commission on July 4, 2007. The applicant alleges discrimination in employment on the basis of disability due to chronic back problems.

2On January 19, 2010, a preliminary hearing was held to consider each of the respondent’s requests for early dismissal of the Applications on the basis they do not establish a prima facie case of discrimination or, alternatively, that only the one year prior to the applicant’s termination from employment be considered by the Tribunal.

3The respondent, the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 636 (the “Union”), argue that the applicant’s assertion that the Union discriminated against him because it did not grieve the termination of his employment does not constitute a prima facie case of discrimination under the Code. In addition, the Union asserts that any references to claims that it did not file grievances or act on the applicant’s behalf are out of time because they relate to events that occurred between three to nine years prior to the filing of the instant complaint. The Union also requests the removal of the personal respondents, Bart Ware and Peter Birmingham, as parties to this Application.

4The respondent, TRW Kelsey-Hayes (“TRW”) takes the position that it properly exercised its right under the Collective Agreement to terminate the applicant’s employment. Alternatively, TRW argues that the Application against it is one that has been or could have been more appropriately dealt with under the arbitration provisions of the Collective Agreement mandated under the Ontario Labour Relations Act, 1995, S.O. 1995, Chapter 1, Schedule A, as amended (LRA). TRW also notes that, with the exception of the termination of employment in May 2007, the other incidents referred to in this Application are out of time. TRW asserts that it would be prejudiced in defending any allegations dating back almost nine years because most of the documentation is no longer available and the individuals identified as being involved by the applicant are no longer working for TRW. Finally, TRW has asked that all of the personal respondents, Brenda Brown, Jack Carter and Rick Comrie, be removed as parties to this Application. In the alternative, TRW suggested that the Application is moot because the applicant had advised them that he would not be returning to work after his short-term disability benefits were exhausted.

5The applicant maintains that the decision to terminate his employment in May 2007 was discriminatory and resulted in a delay in receiving Canada Pension Plan disability benefits and a denial of Employment Insurance sick benefits. The applicant also claims that he was denied severance payments. The applicant explained that although he advised TRW and the Union that he would not be returning to work after the cessation of his short-term disability benefits, he should not have been terminated under the terms of the Collective Agreement and instead should have been placed on medical leave. It was the applicant’s position that his termination of employment in May 2007 was another example of continued harassment and discrimination by TRW that began in 1996 when he was first terminated from employment and later reinstated to TRW.

DECISION

6The Application against the Union and the personal respondents in Tribunal File TR-0536-09 is dismissed. The Application against TRW in Tribunal File TR-0537-09 will proceed on the merits only with respect to the circumstances surrounding the applicant’s termination from employment on May 6, 2007 and the one year prior to that incident. The personal respondents are removed as parties to that Application and the style of cause is amended accordingly.

Background

7TRW is a company that manufactures and produces automotive wheels and brakes and carries on business in Woodstock, Ontario. The applicant was an employee of TRW and a member of the Union’s bargaining unit from October 13, 1992 until his termination of employment on May, 2007. At all times during this period the applicant’s employment was governed by the terms of the Collective Agreement and the Union. The Collective Agreement contained a comprehensive “no discrimination” clause and grievance and arbitration procedure for dealing with any allegations of discrimination.

8During 2006 and 2007, the applicant was absent from work on short-term disability benefits on the basis that he was disabled, due to a chronic back injury, from working for TRW. It is not disputed that by September, 2006 both the Union and TRW had been advised by the applicant that he would not be returning to work and that he would be seeking Canada Pension Plan Disability Benefits. On February 1, 2007, the applicant’s short-term disability benefits were extended until April 4, 2007 by the insurer Sun Life. The applicant was advised at that time by Sun Life to contact TRW for details with respect to any other coverage he might have once short-term disability benefits were exhausted.

9The Union maintains that it had been notified that the applicant was in receipt of disability benefits and that it made efforts to contact the applicant to update his status, including advice that the applicant would need to provide current medical documentation in order to maintain short term disability benefits. The Union claimed that attempts to contact the applicant were made by way of telephone to the applicant’s last known telephone number and by regular mail to his last known address.

10The applicant was sent two letters, dated March 3 and April 2, 2007 by TRW asking him to contact them about his employment status in anticipation of his short-term disability benefits ending on April 4, 2007. TRW claims that the applicant did not respond to either of these letters, which is disputed by the applicant. By May 6, 2007, after one month without reporting to work or contacting TRW with respect to his status, a decision was made to terminate the applicant’s employment in accordance with the terms of the Collective Agreement for absence without leave, and without reasonable excuse from the workforce for more than three days without contacting the employer.

11The Union maintains that it reviewed the circumstances of the applicant’s lack of communication with TRW and the decision to terminate his employment and made a determination not to file a grievance on his behalf.

12Other than the applicant’s termination of employment on May 6, 2007, all of the other allegations in the applicant’s claim against the Union refer to general allegations of the Union did not properly represent him for 10 years. The applicant claims that over a period of 13 years of employment the Union only filed five grievances on his behalf despite claims that he was constantly disciplined, harassed and intimidated because of his back injury. In its response to the Application, the Union advised that the allegations against it refer to the applicant’s first instance of discipline in 1998 and a three day suspension in 2004.

13Allegations against TRW also refer to incidents that occurred no later than November 7, 2003, as evidenced by the last days of employment of the managers involved, and as early as 1996. In that regard, it should be noted that the managers referred to in the complaint ceased working for TRW in 2002 and 2003. In his original complaint against TRW, the applicant states that over a period of 10 years he received numerous derogatory notes and disciplinary letters from TRW that refer to his “back problem” and attendance patterns.

14During the hearing, the applicant testified that he received his first discipline in 1996, was spoken to disrespectfully by Norm Birch in 1997 and was terminated both in 1998 and 2001 but later reinstated, all of which he claims were related to his disability. He also alleges that Jack Carter and Rick Comrie attempted to deny one of his claims for worker’s compensation and that Norm Birch required him to attend a meeting with TRW, while he was off sick, to discuss his continuing absenteeism. The applicant did not provide any other specific allegations of discriminatory conduct other than general remarks that he was not given modified light duties whenever he returned to work after sick leave. Other than his overall dissatisfaction with how he was treated by TRW, the applicant did not explain the gap between the allegations dating back to 2003 and the decision to terminate his employment in 2007.

Delay

15In my view, all of the allegations against the Union and TRW that occurred prior to one year before the termination of the applicant’s employment are out of time and cannot be considered by the Tribunal.

16Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one year time limit. The Tribunal has found that the provisions of section 34 are applicable to applications filed under the transition provisions of the Code. See Boncori v. TRW Canada, 2009 HRTO 564; Marchand v. St. Michael’s Hospital, 2009 HRTO 566; Chinatman v. Toronto District School Board, 2009 HRTO 1225.

17Under section 34(2) of the Code, an application made more than one year after the alleged incident of discrimination, or the last incident in a series of incidents, may only proceed where the Tribunal is satisfied that the delay in filing the application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the application were to proceed:

34(1) If a person believes that any of his or her rights under Part 1 have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there is a series of incidents, within one year after the last incident in a incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and not substantial prejudice will result to any person affected by the delay.

18To determine whether a delay in pursuing a Code right was incurred in good faith, the applicant must provide a reasonable explanation for why a claim under the Code was not pursued in a timely manner. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic School Board, 2008 HRTO 424. In both Applications the applicant’s allegations of continuing discrimination and harassment have been raised in response to the termination of his employment from TRW in May 2007. The allegations relate to events that occurred at the earliest over three years before his employment was terminated. Additionally, some of the allegations refer to incidents occurring nine years prior. The allegations also involve claims against TRW employees who ceased working for TRW in 2002 and 2003.

19In order for the applicant to properly rely on the allegations that occurred one year before the termination of his employment in 2007, he must establish that the termination is the last occurrence in a series of events. The applicant did not provide any explanation of how the allegations he raised dating back to 2003 in the Application against TRW and 2004 in the Application against the Union and earlier are connected to the final termination in 2007. He also did not address the gap in time between any of these allegations of discrimination and his termination of employment in 2007.

20In Chintaman, supra, at paragraph 11, the Tribunal found that, in interpreting section 34 of the Code where a series of events is relied upon, a gap of more than one year between incidents in a series would in most cases interrupt the series in absence of evidence of the considerations set out in section 34(2). I agree with the analysis in Chintaman and find the termination of employment in 2007 is not the last in series of events because the events alleged by the applicant occurred at least three years prior to the termination. In this case, the applicant’s general dissatisfaction of how his absenteeism was handled by TRW and the Union does not provide any reason to connect the allegations to the final decision to terminate his employment. As a result, the applicant may not rely on any of the allegations raised in either Application that pre-dates one year before the May 2007 termination and all such allegations are dismissed.

The Application Against the Union

21The applicant’s complaint against the Union and the personal respondents, Bart Ware and Peter Birmingham, is that the Union should have insisted that the applicant be laid-off from employment for medical reasons rather than terminated for unauthorized absence pursuant to the terms of the Collective Agreement. No specific information was provided at the hearing with respect to Peter Birmingham. The applicant stated that given the Union knew, by the fall of 2006, that he would not be returning to work at the conclusion of short-term disability benefits, the Union and should have taken steps to insist that the applicant not be terminated or deemed to have quit TRW. However, the applicant did not indicate that he had asked the Union, in advance of the termination, to request that he be placed on medical leave of absence or laid-off due to medical reasons after his short-term disability benefits ended. The only information provided was that there had been some communication with the Union with respect to his application for Canada Pension Plan disability benefits. It was only after he was notified about the termination of his employment when he filed his original human rights complaint that the applicant raised the allegation that the Union discriminated against him by failing to request that TRW characterize the termination as a lay-off for medical reasons.

22The failure to represent a member is not, in and of itself, a breach of the Code, nor does it automatically make the Union a party to the alleged discrimination by the Employer. See Arias v. Centre for Spanish Speaking Peoples and Ontario Public Service Employees Union, 2009 HRTO 1025. In Traversy v. Mississauga Professional Firefighters Association Local 1212, 2009 HRTO 996, the Tribunal stated:

(….) a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue such as accommodation of a disability in the workplace is not, in and of itself, a breach of the Code. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

23The evidence before me was that the Union attempted to stay in contact with the applicant, in good faith, to assist him with his Canada Pension Plan application. The Union had filed a number of grievances on the applicant’s behalf in the past but that, in light of the applicant’s lack of communication with TRW in March and April of 2007, it determined it would not dispute TRW’s decision to terminate the applicant’s employment. There is no evidence that the applicant’s disability was a factor in that decision. I cannot find any basis to establish that either the Union’s or Mr. Ware’s actions were discriminatory against the applicant on the basis of disability under the Code.

24The Application against the Union and the personal respondents, Bart Ware and Peter Birmingham is dismissed in its entirety..

The Application Against TRW

Removal of Personal Respondents

25In terms of the Application against TRW, I find that there are grounds to remove the personal respondents, Brenda Brown, Jack Carter and Rick Comrie, as parties to this proceeding. Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal considered a number of factors that are helpful in assessing whether a personal respondent should be removed:

a. Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who is sought to be removed?

c. Is there any issue as to the ability of the corporate respondent to respond or remedy the alleged Code infringement?

d. Does any compelling reason exist to continue proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature or the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

e. Would any prejudice be caused to any party as a result of removing the personal respondent?

26In this case, it is clear that the first three factors listed favour the removal of the personal respondents. Other than the applicant’s decision to name Brenda Brown as a respondent, the applicant did not provide any explanation of how her conduct might be considered as central to the allegations of discrimination or that it might be appropriate to award a remedy specifically against her in the event of a finding of discrimination. Ms. Brown was the individual responsible at TRW for communicating with the applicant with respect to his employment status and disability benefits. She was acting within the scope of her duties and there was nothing else provided by the applicant to show otherwise. In terms of Rick Comrie and Jack Carter, their involvement related to events that have been dismissed as out of time. TRW is the corporate entity that is liable for any conduct of Ms. Brown that may be found to be in violation of the Code or to have contributed to a Code infringement. I further find no significant prejudice would result to the applicant if any of the personal respondents are removed. As a result, I order that Ms. Brown, Mr. Comrie and Mr. Carter be removed as parties to this proceeding.

27The Application against TRW will continue on the merits but will consider only allegations and evidence occurring between May 7, 2006 and May 7, 2007, being one year from the date of the applicant’s termination from employment at TRW. The respondent will be permitted to make more detailed submissions that the Application is moot when the case is heard on the merits.

28I am not seized.