Prescod v. United Steelworkers Local 7135, 2010 HRTO 2054

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Orlando Prescod

Applicant

-and-

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7135

Respondent

DECISION

Adjudicator: Brian Cook

Date: October 8, 2010

Citation: 2010 HRTO 2054

Indexed as: Prescod v. United Steelworkers Local 7135

APPEARANCES BY

Orlando Prescod, Applicant ) Self-represented

United Steelworkers, Local 7135, Respondent ) Cathy Braker, Counsel

1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the United Steelworkers and its Local 7135 (the “union”) discriminated against him on the grounds of race, colour, place of origin, sexual solicitation or advances, and age. The applicant is a member of the union.

2A telephone conference call was held on October 5, 2010. The purpose of the conference call was to hear submissions on the request from the union that the Application be dismissed because it was not filed in time and because the applicant had not established a prima facie case.

Background

3The applicant was last employed in 2005. He stopped working due to stress related to experiences he was having at work and at home. The applicant self identifies as a heterosexual Black man. He alleges that at work he was subject to “slander” regarding his sexual orientation and that he was harassed because he is a Black man. These issues arose in comments made to him directly by co-workers and he was also told by co-workers that other co-workers were making jokes that suggested he was gay.

4At home, he experienced various forms of harassment that originated from the apartment above him. At first this consisted of loud noise. He discovered that the tenant in the apartment was friends with some of his co-workers and became concerned that some of the noises that he was hearing from the apartment were targeted against him. He had undergone hypnotherapy to help him cope with pain related to a knee injury and he believes that co-workers became aware of this and were sending dangerous subliminal messages to him from the apartment above him. He has also alleged that the co-workers entered his apartment and sprayed sleeping gas and took his picture. In addition, he alleges that co-workers told him that he would be killed if he were to return to work and used racist epithets. These communications emanated from the upstairs apartment during the night.

5The applicant filed a grievance about these problems in May 2006. The union investigated the allegations. After interviewing the co-workers that the applicant had identified, the union concluded that the allegations could not be substantiated. The grievance was denied by the employer. The union pursued the grievance and suggested that mediation might help to resolve matters so that the applicant could return to work. A mediation session was held in November 2006. The mediation session was cancelled by the mediator. The applicant believes that the mediator improperly pressured him, but agrees that he was not able to say what he wanted at that time.

6Prior to the mediation, the applicant had filed a complaint with the Ontario Human Rights Commission (the “Commission”). The complaint named the applicant’s employer and the three co-workers whom he alleged were harassing him at work and at home. The Commission ultimately dismissed the complaint in December 2007, on the grounds that the matters raised in the complaint could more appropriately dealt with as part of the grievance procedure under the collective agreement.

7In the spring of 2008, representatives of the union held a meeting with the applicant to discuss the grievance related to the alleged harassment. The applicant advised the union representatives that he had recordings of the noises that he was hearing in his apartment and that these would prove his allegations. The union representatives listened to one of the recordings but were unable to hear the things that the applicant heard.

8On June 16, 2008, the union staff representative wrote to the applicant to report the results of the union’s investigation of the harassment allegations. The letter stated that the information that the applicant provided did not support his allegations of discrimination and harassment and that the union’s independent investigation had also failed to find any evidence that might support the grievance. As a result, the applicant was told that the union would be withdrawing the grievance.

9In 2007, while he was still off work, the applicant was laid off due to shortage of work. The applicant filed a second grievance alleging that he had been improperly laid off by the employer and not recalled.

10On July 14, 2008, the union staff representative wrote to the applicant to advise that the union would also not be pursuing the seniority/recall grievance because the applicant was next in line on the seniority list to be recalled. The letter confirmed that in order to return to work, the employer would require documentation from a doctor to certify that the applicant was medically fit to return to work.

11While the applicant raised this second grievance during the telephone conference call, it is clear that it was not mentioned in the Application filed with the Tribunal.

12The Application was filed with the Tribunal on May 5, 2009. It named his employer as the respondent. The union was mentioned in the Application but was not explicitly named as a respondent. In Prescod v. National Steel Car, 2009 HRTO 1246, the Application was dismissed because the subject matter of the Application was the same or substantially the same as the subject matter of the complaint that was filed with the Commission.

13The applicant filed a request for reconsideration. He submitted that his intention had been to name the union as respondent in addition to his employer and that even if he was unable to bring an Application against his employer, he should be able to bring the Application against the union.

14Following the process described in the Reconsideration Decision Prescod v. National Steel Car, 2010 HRTO 1586, the Application was delivered to the union. The union asked that the Application against it be dismissed because the Application was not filed within one year of the alleged discriminatory event contrary to section 34(1) of the Code, and because the Application does not disclose a prima facie case of discrimination. In the Reconsideration Decision, I determined that it was appropriate to schedule a telephone conference call to deal with these issues and the call occurred on October 5, 2010.

15During the conference call, the applicant outlined the history of the case and the reasons that he believes the union discriminated against him. Counsel for the union made submissions regarding the union’s request that the Application be dismissed. The parties addressed the question of whether the Application was brought in time, whether the applicant had established a prima facie case, and whether there was any evidence to support the allegations.

Conclusions

16The Supreme Court of Canada discussed what an applicant must show to establish a prima facie case of discrimination in Ontario (Human Rights Commission) v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.). The Court noted that the burden of proof may vary from case to case, depending on the type of case and the nature of the allegations. The Court stated (at para. 28):

The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent‑employer.

17To establish a prima facie case, the applicant must do more than make allegations which, if true, would result in a finding of discrimination or harassment under the Code in the absence of a defence from the respondent. The applicant must also make a case “which covers the allegations made”. At the stage of determining whether the applicant has made a prima facie case, the applicant does not have to prove the allegations. However, the applicant must be able to demonstrate that the allegations are credible and that there is evidence available which will require an explanation from the respondent.

18In Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, the Tribunal dealt with an Application in which the applicant alleged discrimination on the part of his union because the union had not advanced a grievance. In that case, the Tribunal said the following (at paragraph 33):

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, 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 may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

19In that case, the Tribunal determined that the applicant had not established a prima facie case because the applicant had not established a factual basis for the claim that the failure by the union to pursue the grievance was based on discriminatory considerations.

20In the case before me, the essence of the applicant’s allegations against the union is that the union improperly decided not to pursue the grievance regarding his allegations of discrimination and harassment. Those allegations were that he was subject to racist comments and improper and untrue comments concerning his sexual orientation. This alleged discrimination and harassment took place at work and at home. The applicant alleges that the reason that the union refused to pursue the grievance was that the union either condoned the discrimination and harassment or was a party to the discrimination and harassment. The alleged discrimination and harassment relates to grounds covered by the Code and are therefore matters over which the Tribunal has jurisdiction.

21The evidence that the applicant proposes to present to support his allegations consists of his testimony about his experiences and the audio recordings that he has made. The applicant’s explanation for why others who have listed to the recordings were unable to hear the things that the applicant could hear is that the harassment and discrimination that was occurring was delivered in a subliminal manner.

22I am satisfied that the applicant truly believes that he has been subject to the things that he has described as occurring at work and at home. However, in order to succeed, there must be credible evidence that the things that the applicant believes he experienced actually occurred.

23I further note that even if the things that the applicant alleges actually did occur, the applicant’s remedy lay with his employer and not with his union. This is why when he first filed an Application with the Commission, he complained about the employer and not the union. The applicant is unable to proceed against the employer at this Tribunal because the substance of the allegations that he continues to make are substantially the same as those that were made in the Application to the Commission.

24I agree with the finding in Traversy, mentioned above, that 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. I find that the applicant has not established a credible factual basis for the allegation that the fact that the union did not pursue his grievance further than it did was because of discrimination or harassment.

25For all of these reasons, I conclude that the applicant has not established a prima facie case and the Application must be dismissed.