Human Rights Tribunal of Ontario
Between:
Rashmi Mukherjee Applicant
-and-
RMF Design and Manufacturing Inc. and Richard Fine Respondents
Decision
Adjudicator: Naomi Overend Date: October 19, 2010 Citation: 2010 HRTO 2111 Indexed as: Mukherjee v. RMF Design and Manufacturing
Appearances
Rashmi Mukherjee, Applicant | Niel Mukherjee, Representative RMF Design and Manufacturing Inc. and Richard Fine, Respondents | Maria Denicola, Representative
Decision
1This Decision deals with the respondents’ Request for early dismissal of the Application under s. 45.1 based on a decision of an Employment Standards Officer made under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). The respondents take the position that the ESA decision has appropriately dealt with the substance of the Application.
2An oral hearing was held on March 1, 2010 via teleconference at which time the parties made oral submissions on this issue.
Background
3The applicant filed her Application on June 2, 2009 under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of sex. Specifically, the applicant alleges that her employment was terminated because she was pregnant.
4The applicant also filed a claim with the Ministry of Labour alleging a contravention of s. 74(1) of the ESA within a day of filing her Application. Section 74 prohibits employers from, among other things, reprising against employees because they will be taking pregnancy and/or parental leave.
5The respondents were not made aware of the ESA claim at the outset, but became aware of it when they were served with a notice advising them of a meeting before the Employment Standards Officer scheduled for September 8, 2009.
6When the respondents became aware of the ESA claim, they filed a Request for Order During Proceedings asking that the Tribunal dismiss or stay the Application because another tribunal was dealing with what they allege was an identical claim. The applicant filed a Response to a Request for an Order opposing the Request, and asserting that the claims were not identical.
7This Request was superseded by the actual release of the ESA decision on September 30, 2009. In this decision, the Employment Standards Officer concludes: “Although the claimant has assumed she has been terminated based on the fact that she would have been eligible to take pregnancy/parental leave, the officer finds no evidence to support this claim.”
8The respondents filed a new Request for Order During Proceedings asking that the application be dismissed on the basis that the decision in the other proceeding dealt with the substance of the Application. The applicant did not file a response.
9The ESA decision was released on September 30, 2009. It notes that the claimant (the applicant in these proceedings) had until October 30, 2009 to appeal that decision. The applicant advised that she did not appeal the decision as she wished to proceed before this Tribunal.
Analysis and Decision
10Section 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.
11The applicant does not take issue that the adjudication of her ESA claim was a “proceeding” within the meaning of s. 45.1 of the Code. In any event, this Tribunal has ruled that matters adjudicated under the ESA are proceedings for the purpose of the Code. See Poirier v. McLean Engineering & Marketing, 2010 HRTO 1672. Given that the applicant has not appealed it, the decision of the Employment Standards Officer is a final decision.
12Accordingly, the only question is whether the substance of the Application was appropriately dealt with in the ESA proceeding. The applicant submits that: (1) the ESA proceeding did not deal with the substance of her Application; and (2) the proceeding could not appropriately determine the issue before it as the applicant was unable to attend the ESA hearing and make certain arguments on her behalf.
Substance of the Application
13The applicant argues that the question adjudicators ask under s. 74 of the ESA is a different legal question than that to be dealt with by this Tribunal. She submits that the scope of the ESA matter is very small, and limited to whether or not she was reprised against because she would be taking a maternity leave in five or six months time.
14The relevant portions of s. 74 state:
(1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,
(a) because the employee,
…
(iv) exercises or attempts to exercise a right under this Act,
…
(viii) is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV;
(2) Subject to subsection 122(4), in any proceeding under this Act, the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer.
Part XIV of the ESA deals with leaves of absence, including both pregnancy leave and parental leave.
15The applicant argues that the central issue in her Application is different in that it alleges discrimination on the basis of pregnancy rather than simply on the basis that she would be taking a year long leave of absence. Theoretically, of course, this is possible. An employer, for example, might not want to retain a pregnant employee for alleged safety reasons. However, the applicant does not advance any alternative theory of discrimination on the basis of pregnancy in her Application.
16Moreover, as is clear from the ESA decision, the Employment Standards Officer made findings of fact on the same allegations underpinning her Application before this Tribunal:
Based on the evidence collected, the officer determined that there has been no reprisal against the claimant for being pregnancy [sic] and being eligible to take a pregnancy leave. Based on the best available evidence and on the balance of probabilities, the claimant would have lost her job even if she had not been pregnant and eligible to take a pregnancy/parental leave. Yes, a new quality manager was hired but this is the employer’s right in replacing two individuals with one more qualified quality assurance individual. It is also the employer’s right to preserved [sic] the employment of the more senior employees and taking [sic] into consideration each employee’s individual skill sets based on employer’s needs.
17In the circumstances of this case, I find that the ESA decision deals with the substance of the Application.
Appropriately Dealt With
18In determining whether a matter was “appropriately” dealt with, the Tribunal may take into account a number of factors, one of which is whether human rights principles were applied in the other proceeding. I note parenthetically that the applicant has not identified an area in which human rights principles ought to have been applied and were not in the ESA proceeding.
19As is clear on the face of the ESA decision, the Employment Standards Officer employed an analysis of the facts that would used by this Tribunal, namely, whether the respondent has offered an explanation that refutes the assertion that the decision to terminate the pregnant employee was based on her pregnancy. In this case, the Employment Standards Officer accepted the respondents’ (non-discriminatory) explanation that the decision to terminate the applicant’s employment was based on economic factors and the applicant’s lack of experience.
20Another factor that can be relevant to the issue of whether the other proceeding “appropriately” dealt with the matter is whether the earlier proceeding was “tainted” by “unfairness of any kind.” See Campbell v. Toronto District School Board 2008 HRTO 62.
21The proceeding before the Employment Standards Officer was scheduled to be held on September 8, 2009, the Tuesday after Labour Day. This was around the time the applicant was expected to give birth. Although the notice was sent out in early August, the applicant stated that she did not phone the Employment Standards Officer until the Thursday or Friday before the scheduled meeting to advise her of her impending due date. The applicant stated that the Employment Standards Officer’s response was to take a wait and see approach. The applicant asked if someone else could appear on her behalf and was told that that would be acceptable.
22The applicant gave birth on September 6, 2009 and did not attend the September 8, 2009 meeting. The applicant's husband, who is described as a human resources professional, represented her at the ESA proceeding. In the teleconference proceedings before me, although she was also on the phone, the applicant also asked her husband to make oral submissions on her behalf. It was clear from his submissions before me that he was fully conversant with the detailed facts of her case.
23Mr. Mukherjee submitted to this Tribunal that he was at a disadvantage at the ESA proceeding because he was not fully aware of the facts at the time. By way of illustration, he said he was unable to rebut the respondents’ arguments that the applicant’s termination was the result of a shortage of work and the corporate respondent needed a more senior individual to fill the quality assurance role.
24It seems unlikely that Mr. Mukherjee would not have this information at his disposal on September 8, 2009. By that date, the respondents had filed their Response with the Tribunal in which they had explicitly made these two arguments. Moreover, the applicant had filed a detailed Reply setting out her response to these arguments on July 8, 2009, a full two months prior to the ESA hearing.
25Moreover, as pointed out by the personal respondent, the decision of the Employment Standards Officer summarizes the arguments made by Mr. Mukherjee on the claimant’s behalf, and these include the very points that Mr. Mukherjee said he had been unable to make.
26In any event, neither the applicant nor her husband requested an adjournment of the ESA proceeding once it became apparent that she would be unable to participate in it. Nor did the applicant appeal the decision of the Employment Standards’ Officer, as was her right, at which time she could have made any unfairness argument.
27During oral submissions, the applicant said that she made a decision to not appeal the Employment Standards Officer decision because there was a mediation scheduled for October 20, 2009 with respect to this Application, which she decided to pursue instead. However, in early October, the respondents served her with their Request to dismiss, and on October 5, 2009 the Tribunal sent a Notice cancelling the mediation date in light of the outstanding Requests for Order.
28The applicant was, thus, aware that the respondents were requesting that the Tribunal exercise its discretion to not proceed with the Application well in advance of the October 30, 2009 deadline for the ESA appeal. When she made the decision to not proceed with the appeal in that matter, she did so at her peril.
Order
29In summary, the criteria under s. 45.1 have been met. In the interest of judicial economy and finality, the Tribunal is exercising its discretion to dismiss this Application under s. 45.1.
Dated at Toronto, this 19th day of October, 2010.
”signed by”____________________
Naomi Overend Vice-chair