Shirley Volpini v. John Crane Canada Inc., 2010 HRTO 2420

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shirley Volpini

Applicant

-and-

John Crane Canada Inc.

Respondent

-and-

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union Local 16506-34

Intervenor

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 6, 2010

Citation: 2010 HRTO 2420

Indexed as: Volpini v. John Crane Canada

1The Application was filed on September 10, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the applicant was discriminated against in employment on the basis of age. This Interim Decision addresses a Request for an Early Dismissal made by the respondent on the basis that section 45.1 of the Code applies or, in the alternative, on the basis that it would be an abuse of process to allow the Application to proceed before the Tribunal. This Interim Decision also addresses a Request to Intervene made by the applicant’s union, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union Local 19506-34 (the “Union”).

BACKGROUND

2The applicant was laid off from her position as a Seal Assembler with the respondent on or about September 14, 2009. On September 15, 2009 the applicant filed a grievance that stated, in part,

I allege a violation of the C.B.A. or any other legislation in effect that the company has discriminated against me by not permitting me to bump the junior assembler which has caused me to be laid off.

3The grievance was not resolved through the grievance process and went to arbitration. On July 5, 2010 the arbitrator issued a decision dismissing the grievance on the basis that the process used by the respondent to determine whether the applicant should bump two more junior employees followed the collective agreement requirements and consequently there was no violation of the collective agreement.

REQUEST TO DISMISS

4The respondent’s Request to Dismiss forms part of its Response that was filed on November 17, 2010. The respondent submits that the grievance itself raises the issue of discrimination and that during the arbitration process the union argued that the bumping process was unfair and biased and that ultimately the arbitrator made a finding that no bias or unfairness or any improper conduct occurred. The respondent argues that as a consequence the Application should be dismissed under section 45.1 of the Code which states:

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.

5The respondent further submits that to allow the Application to proceed would be an abuse of process in that it would allow the applicant to relitigate essentially each and every issue raised before and decided by the arbitrator, that the only difference between what was argued at the arbitration in which the applicant claimed unfairness or bias about the layoff and bumping procedure is that the applicant now seeks to claim age discrimination.

6The Tribunal wrote to the applicant on November 17, 2010 directing the applicant to file a Reply in response to the respondent’s Response and to provide her position in relation to the respondent’s requests. The Tribunal received the applicant’s Reply on December 2, 2010. Much of the Reply focuses on the merits of the Application and contains documents related to the duties of a seal assembler and a general assembler. The applicant does assert that the Arbitrator did not have before her accurate information upon which to make her decision.

REQUEST TO INTERVENE

7The Union has formally made a Request to Intervene (Form 5). The applicant and the respondent have not responded to this Request to Intervene.

8The Union asks to intervene on the basis that there may be an issue as to whether the substance of the Application was addressed by the arbitration process involving the respondent, applicant and the Union. The Union submits that the Application also raises issues regarding the Union’s representation of the applicant in the wake of her lay-off. Finally, the Union argues that as the bargaining agent of the employees of the respondent the Union could be affected by the remedy requested by the applicant.

9The Union seeks to attend any hearing held by the Tribunal into this matter for the purposes of providing accurate and relevant information to the Tribunal regarding dealings with the applicant as outlined in the Application. The Union also asks to participate in any mediation to monitor any settlement between the applicant and the respondent to ensure that it does not adversely affect Union members and is consistent with the provisions of the collective agreement.

DECISION

10Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties an opportunity to make oral submissions. I have determined, given the circumstances of this matter, that the Tribunal will schedule a half day preliminary hearing to specifically consider the issues raised in the respondent’s Request for Dismissal. At the hearing the parties should be prepared to provide submissions and, if necessary, evidence on the following issues:

i. whether the Tribunal should dismiss the Application in whole or in part, pursuant to section 45.1 of the Code because the Arbitrator has appropriately dealt with the substance of the Application, and

ii. whether proceeding with the Application before the Tribunal would constitute an abuse of process.

11The Tribunal grants the Union’s Request to Intervene. A union almost always has an interest in a human rights application involving a member and unless there are exceptional circumstances the Tribunal will grant the bargaining agent intervenor status when requested. In my view there are no exceptional circumstances in this case.

12If any party intends to rely upon documentary material, legal authorities or submissions not included in the Tribunal’s file, it shall deliver such materials to the other parties and file them with the Tribunal no later than 14 days before the scheduled hearing.

13I am not seized of this matter.