Rysinski v. Aecon Industrial, 2010 HRTO 340

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steve Rysinski

Applicant

-and-

Aecon Industrial, a Division of Aecon Construction Group Inc. and Sam Bambino

Respondents

AND B E T W E E N:

Steve Rysinski

Applicant

-and-

International Brotherhood of Electrical Workers Local 804 and Bob Morris

Respondents

DECISION

Adjudicator: Mark Handelman

Date: February 16, 2010

Citation: 2010 HRTO 340

Indexed as: Rysinski v. Aecon Industrial

APPEARANCES BY

Steve Rysinski, Applicant ) Self-represented

Aecon Industrial, a Division of Aecon Construction ) Carl W. Peterson, Group Inc. and Sam Bambino, Respondents ) Counsel

International Brotherhood of Electrical Workers, ) Ron Lebi, Counsel Local 804 and Bob Morris, Respondents )

1This Decision addresses the respondents’ requests for the dismissal of these Applications pursuant to s. 45.1 of the Ontario Human Rights Code R.S.O. 1990, c.H.19, as amended (the “Code”) on the basis that the substance of the Applications has been appropriately dealt with by the grievance and arbitration procedure of a collective agreement and a ruling of the Ontario Labour Relations Board (“OLRB”).

2The applicant is an electrician and member of the respondent union. Aecon Industrial, a Division of Aecon Construction Group Inc. (“Aecon”) hired him through the normal union hiring process to work at the Bruce Nuclear Power Plant. After the applicant received one week of training, he had a medical examination which revealed health problems that Aecon thought rendered him unable to perform most, if not all, of the essential tasks of the job for which he was hired. Aecon terminated the applicant’s employment. On behalf of the applicant, the respondent union grieved his termination in accordance with the collective agreement.

3The union settled the grievance for a monetary amount which was paid in full to the applicant. The applicant cashed the cheque. The applicant did not approve the settlement or sign a release. In oral submissions the applicant characterized that sum as “partial damages.” However, the collective agreement to which the applicant and the union were both parties authorized the union to settle the grievance on the applicant’s behalf without his consent.

4The applicant filed a complaint with the OLRB about the union’s settlement of his grievance. The OLRB dismissed the applicant’s complaint.

5The applicant then brought these two Applications, in one naming the union a respondent and in the second naming Aecon and the individual respondent.

6Both Applications were scheduled for argument on the respondents’ preliminary motions on February 4, 2010. Counsel for the respondents each filed written submissions and authorities and made brief oral submissions. The applicant made oral submissions. At the end of submissions by all parties, I dismissed both Applications. These are my reasons for doing so.

7Section 45.1 of the Code authorizes the Tribunal to dismiss an application “if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.”

8In Dunn v. Sault Ste. Marie (City), 2008 HRTO 149, a similar issue arose: the application to this Tribunal was based upon the same issues as had been grieved and settled through the collective agreement process and the OLRB dismissed Mr. Dunn’s complaint against the union. Citing Campbell v. Toronto District School Board, 2008 HRTO 62, the decision in Dunn adopts these principles:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;

• The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;

• In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;

• The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

9The essence of the grievance the respondent union settled on behalf of the applicant was that the respondent employer failed to accommodate the applicant’s disabilities in the workplace. That mirrors the essence of the instant Application against the respondent employer.

10The essence of the complaint the applicant made to the OLRB against the union is that it discriminated against him by accepting on his behalf a financial settlement of his grievance that the applicant alleges is inadequate. That mirrors the essence of the instant Application against the respondent union. The OLRB found no fault in what the union did on the applicant’s behalf and the applicant wants to relitigate that precise issue before this Tribunal.

11While this Tribunal has jurisdiction to adjudicate claims of discrimination based upon disability and of failure to accommodate disabilities, it does not have exclusive jurisdiction. As noted at paragraph 29 of Dunn, supra, “Therefore, the OLRB can decide an allegation that a union discriminated against a member of a bargaining unit, contrary to the Code, when it adjudicates a claim that the union violated the duty of fair representation by acting in a discriminatory manner.”

12Ontario labour law recognizes that a union may not always meet its duty of fair representation to a union member. The Labour Relations Act therefore provides a process for review of the union’s actions, which the applicant pursued in this case, to the OLRB. The statute does not allow an appeal of the OLRB decision and the applicant seeks an end run around that obstacle by Application to this Tribunal.

13I agree with the rulings in Campbell and Dunn. The grievance process which resulted in the settlement and the application to the OLRB which was dismissed are proceedings within the meaning of the Code. In both the human rights issues which are raised in these Applications were considered. The fact that the applicant is unhappy with the result is not, by itself, sufficient to entitle him to litigate them again before this Tribunal. I therefore exercised the discretion authorized by section 45.1 of the Code and dismissed both Applications.