Mohammed Wazid v. Dairy Products in Motion and Manny Valadao, 2010 HRTO 2398

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammed Wazid

Applicant

-and-

Dairy Products in Motion and Manny Valadao

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: December 2, 2010

Citation: 2010 HRTO 2398

Indexed as: Wazid v. Dairy Products in Motion

WRITTEN SUBMISSIONS

Mohammed Wazid, Applicant ) Self-represented

1This case originates with the disappearance of a box of cheese from the premises of the respondent, Dairy Products in Motion (“DPM”). The applicant was dismissed from his employment with DPM for allegedly stealing the cheese. The applicant says that he merely moved the cheese, which was mouldy, to another area where it subsequently went missing. His union, the United Steelworkers (the “union”), decided not to pursue his termination grievance to arbitration on the basis that it was unlikely to succeed.

2The applicant’s Application alleges discrimination because of race, colour, ancestry, place of origin, citizenship, ethnic origin, creed, family status, record of offences, association with a person identified by a prohibited ground and reprisal by DPM, USW and various individuals, contrary to sections 5 and 8 of the Human Rights Code, R.S.O. 1990, c. H.19, as a result of alleged racial harassment prior to his dismissal, the dismissal, and the union’s failure to refer his grievance to arbitration.

3This Interim Decision is about whether the union and several of the individuals named should be removed as respondents. The respondents have not yet been required to respond to the Application. On November 9, 2010, the Tribunal issued a Case Assessment Direction that read’s in relevant part as follows:

…it appears that the Application states no basis on which it is alleged that the Union discriminated against the applicant on the basis of any prohibited ground in the Code. Allegations of a violation of the Duty of Fair Representation under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched A, must be made to the Ontario Labour Relations Board. The Tribunal has held that the Code does not require a union to pursue to arbitration every grievance that raises a Code right: see Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996; Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-18 and Hazel v. Ainsworth Engineered, 2009 HRTO 2180 at para. 59. There must be an allegation that the failure to act was based on discriminatory factors.

Finally, there appear to be no specific allegations against any of the numerous individual respondents that the applicant has named other than Mr. Valadao.

In the circumstances, the Tribunal directs as follows:

(1) The Application shall be delivered to the respondents with this Case Assessment Direction.

(2) The respondents need not take any action at this time.

(3) Within two weeks of the date of this Case Assessment Direction, the applicant shall deliver to the respondents and file with the Tribunal a letter as follows:

(i) The letter must contain complete written details of his allegations of racial slurs. The letter shall indicate as much detail as possible about the situation in which these slurs were made, including who uttered the slurs, what exactly was said, when and where they occurred, who was present when they were made, and whether the applicant complained about the slurs to management.

(ii) The letter shall explain why the Application against the Union is within the Tribunal’s jurisdiction (power) to decide.

(iii) The letter shall explain why the Application should be continued against the individual respondents other than Mr. Valadao.

(4) Upon receipt of the letter, the Tribunal may decide whether the Application should be dismissed as against the Union and the individual respondents, and may give further directions about the next steps in the Application.

(5) Should the applicant fail to file the letter directed in (3) above, the Application may be dismissed as abandoned.

4The applicant has now filed the letter directed. The applicant has provided somewhat more details of his allegations of racial epithets.

5As for the naming of the union and individual respondents, the applicant suggests that the Application should be continued against the union, Sean Logan (Area Coordinator of the USW), Lawrence Johnson (USW Local 9042 president) and Thomas De Sousa (Staff Representative). He suggests that Logan called him a “dumb ass”, and that the union and its officials did not have all the evidence but refused to refer his grievance to arbitration. These are not allegations that these individuals or the union discriminated against the applicant within the meaning of the Code. As there is no allegation that the union or these personal respondents violated the Code, they shall be removed as respondents.

6The other personal respondent, Gordon Crowther, appears to be the owner of the respondent company. There are no allegations that he violated the Code. Accordingly, he is also removed as a respondent.

7The Tribunal orders that the United Steelworkers, Gordon Crowther, Sean Logan, Lawrence Johnson and Thomas De Sousa be removed as respondents to this Application.

8The Registrar is requested to issue of Notice of Application setting a response date for the remaining respondents. In light of its role as bargaining agent for the applicant, United Steelworkers Local 9042 is an interested party.

9I am not seized.