Abdulle v. Victor, 2010 HRTO 1767

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samsam Abdulle

Applicant

-and-

Sudha Victor

Respondent

-and-

United Food and Commercial Workers Canada, Local 175

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: August 27, 2010

Citation: 2010 HRTO 1767

Indexed as: Abdulle v. Victor

1The applicant filed an Application on February 26, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of race, colour, place of origin, ethnic origin, sexual orientation and marital status.

BACKGROUND

2The applicant and the respondent, Sudha Victor, are co-workers and employed by National Car Rental (Canada) Inc. ("the employer").

3The applicant alleges that, while at work on December 3, 2009, the respondent verbally abused her by engaging in profanities, racial slurs and other derogatory comments. The applicant notes that she took the matter to management and that she was given a verbal warning and the respondent was given a three-day suspension. Subsequently, the respondent grieved the suspension and was reinstated.

4The respondent filed a Response on June 30, 2010. This Response confirms that the alleged incident resulted in her initially being subjected to a three-day suspension, which was later rescinded as part of a grievance settlement and resolved by way of a written warning. The respondent requests that the Tribunal dismiss the Application, pursuant to section 45.1 of the Code, as appropriately dealt with by another proceeding.

REQUEST TO INTERVENE

5The Application identifies the applicant's union, United Food and Commercial Workers Canada, Local 175 ("the union"), as the bargaining agent that may be affected by this proceeding. The union was provided with notice of the Application and an opportunity to file a request to intervene. On May 26, 2010, the union filed a Request to Intervene.

6The union indicates that it has an interest in the Application because it is the exclusive bargaining agent for both the applicant and the respondent. The union notes that it filed two grievances on behalf of the respondent arising out of the facts alleged in the Application. The union confirms that the respondent's grievances were resolved at a Step 2 grievance meeting and Minutes of Settlement were entered into with the employer. The union indicates that it has an interest in any evidence which may be led regarding the conduct of the union or its representatives, as well as an interest in any proceeding which may impact on the bargaining relationship. The union identifies a number of relevant documents regarding the events detailed in the Application which are in the union's possession.

7If granted intervenor status, the union requests to be permitted to address the following: any evidence regarding the conduct of the union or its representatives; any matters involving the interpretation or application of the Collective Agreement; and the issue of remedy.

8The applicant's union seeks to intervene in accordance with Rule 11 of the Tribunal's Rules of Procedure. The union submits that it has a significant interest in the outcome of the Application as the parties' exclusive bargaining agent and its role in the settlement of the individual respondent's two grievances.

9In accordance with the Tribunal's standard practice where an applicant is a member of a bargaining unit represented by the union, the union's request to intervene is granted. The union clearly has an interest in the events as alleged in the Application and Responses, and the Request to Intervene is not opposed. The extent of the union's participation in any future proceedings will be determined by the Vice-chair or Member who presides over those proceedings.

REQUEST TO DISMISS

10In her Response, the respondent requests early dismissal of the Application on the basis that another proceeding has, in whole or part, appropriately dealt with the substance of the Application. The respondent submits that matters alleged in the Application fall under the Collective Agreement and labour relations legislation and that the grievance settlement fully resolved the issues.

11Section 45.1 of the Code provides:

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.

12The applicant filed a Reply on July 31, 2010, wherein the applicant objects to the Request for early dismissal. The applicant argues that she did not participate in the grievances and that the employer and the union failed to address the harassment that she experienced.

13There are two parts to the inquiry under section 45.1: (1) whether there was another "proceeding" and (2) if so, whether it "appropriately dealt with" the substance of the Application.

14I do not need to decide whether a Step 2 grievance settlement is a "proceeding" within the meaning of section 45.1 because I find that the grievance settlement did not deal with the substance of the Application. The grievance process focused on the rights of the respondent, as an employee, and the obligations of the employer pursuant to its Collective Agreement with the union. The applicant did not participate in the grievance process which led to the settlement. The applicant's rights were not in issue, there was no consideration of the respondent's alleged human rights breaches, nor any assessment of remedies for any alleged Code contraventions. I conclude that the settlement of the individual respondent's grievances did not appropriately deal with the substance of the Application and, therefore, does not come within section 45.1 of the Code.

15The Request to dismiss is therefore denied.

REQUEST TO ADD RESPONDENT

16On August 4, 2010, the applicant filed a Request for an Order asking that the employer be added as a party to the Application. The applicant served the Request for Order on the employer. On August 12, 2010, counsel for National Car Rental and Alamo Rent-A-Car, the employer, wrote to the Tribunal and confirmed receipt of the Request. Counsel notes that the Request did not include a copy of the Application and, as such, the employer is unable to respond to the matter. Counsel requests a copy of the Application in order to be able to respond the Request.

17This Interim Decision and the Application will be forwarded to counsel for the employer. The employer is directed to confirm its proper legal name and deliver submissions in response to the applicant's Request for an Order to the other parties, including the intervener, and file them with the Registrar by no later than September 13, 2010. The employer is also directed to specifically address in its submissions the factors articulated in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, with respect to adding a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

18The respondent and intervener may deliver and file a response to the employer's submissions by no later than September 17, 2010, and the applicant may deliver and file a brief reply to the submissions of the other parties by no later than September 21, 2010.

19I am not seized of this matter.