HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Alissa Hanslip
Applicant
-and-
Humber River Regional Hospital Service Employees International Union, Local 1 Canada
Respondent
-and-
Service Employees International Union, Local 1 Canada
Intervenor
INTERIM DECISION
Adjudicator: Alan Whyte
Indexed as: Hanslip v. Humber River Regional Hospital
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) which alleges discrimination on the basis of disability and sex, as well as reprisal.
2This Interim Decision will address the issues of deferral and the Request to Intervene filed by the Service Employees International Union Local 1 Canada ("the union").
Background
3The applicant is an employee of the Humber River Regional Hospital ("the hospital"), and is also a member of a bargaining unit represented by the union. She alleges discrimination and reprisal by the hospital arising out of her request for accommodation made in June, 2009.
4On July 8, 2009, the applicant filed a grievance against the hospital which stated:
I grieve article 24.06 and other articles, past practise and laws, failure to accommodate modified work related to pregnancy.
5The grievance was processed through the grievance procedure and the parties attended at mediation of the grievance on August 21, 2009. The grievance was not resolved at that time.
Deferral
6The hospital seeks deferral of the Application in light of the fact that, in its view, the same facts and issues relied on by the applicant in this Application are being advanced by her through her grievance. The hospital states that an arbitration hearing is the next step in the grievance process, but it does not indicate that there has been a referral of the grievance to arbitration.
7In the union's Request to Intervene, there is a description of the course of events described above related to the processing of the grievance, and the status of the grievance is described by the union as "unresolved and outstanding".
8In her Reply, the applicant puts forward the following arguments:
The Tribunal's case law has stated that deferral is not automatically invoked simply because the parties or facts underlying the Application are also involved in another legal proceeding.
The central issues in the Application are: a) discriminatory treatment on a systemic basis with respect to medical disclosure issues, b) failure to accommodate a disability under the Code, c) discrimination on the basis of pregnancy, and d) reprisals for wanting to assert her rights under the Code.
Her grievance deals specifically with whether there had been a breach of the collective agreement (article 24.06) which states "absences due to pregnancy related illness should be considered as sick leave under the sick leave plan". The remedy requested in the grievance is to be paid for sick days that the applicant was required to take as vacation or unpaid leave.
Her grievance does not deal with the degree of disclosure of medical conditions required by the employer (which is alleged to be a breach of the Code), and does not deal with the effects of the hospital's actions on her health, and the stress and anxiety caused by the hospital.
Her grievance does not deal with the financial effects of the hospital's decision to put her on unpaid leave, which are alleged to be a reduction in her maternity and parental benefits.
The grievance is in no way near its completion - the applicant alleges that one of her union representatives indicated to her that the union would drag the proceeding out as long as they could so that the hospital would have to spend more money. The applicant alleges that the grievance proceeding will take one and a half years to two years to complete.
Accommodation of pregnant employees should be dealt with quickly and expeditiously as the window to provide a remedy is always nine months or less.
Her Application raises the issue of reprisal, which is not included in her grievance.
The applicant relies on Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, for the proposition that where the legal issues and remedies sought in the two proceedings are different, and where the other process (the grievance process in this case) is not nearing completion, the Tribunal will not defer to the other process.
The applicant states that she was involved in an attempt to displace the union with another union in her workplace and is therefore concerned about the extent to which the union will prosecute her grievance on her behalf. The applicant has filed letters dated August 6 and September 28, 2009 from the union to her related to charges brought against her by the union, and the fact that the union considers her to not be a member in good standing, effective September 21, 2009.
9Although the Tribunal's usual practice is to defer the hearing of an Application if there is a concurrent grievance which raises the same facts and issues as those found in the Application, there are exceptions to that practice and I find that this case is one of those exceptions. While it appears that the applicant relies on the same facts in advancing both her Application in her grievance, I am satisfied that the legal issues raised and the remedies sought in the grievance are different, in that they are narrower than those advanced in this Application. I am also concerned about the unusual circumstances related to the applicant’s status with the union, which is a factor not found in the typical case, and which raises real issues about whether this grievance will be advanced by the union in an expeditious manner. Finally, as the grievance has not yet been referred to arbitration, there is no evidence before me that the issues raised in that process will be addressed in the foreseeable future.
Request to Intervene
10With respect to a union's request to intervene in an Application brought by a bargaining unit employee, the Tribunal stated as follows in Matthews v. Hamilton (City) 2010 HRTO 167:
The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131 that:
A union or association nearly always has an interest in a human rights Application brought by an employee in a bargaining unit it represents when the Application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.
11In her Response to the Request to Intervene, the applicant opposes the Request because of the fact that she is no longer a member in good standing of the union.
12Despite the fact that the applicant and the union may be adverse in interest at least to some extent, I am satisfied that the union has a sufficient interest in the issues and remedies sought in this Application to justify its participation as intervenor, as there is a possibility that any remedies granted in favour of the applicant will affect other members of the union's bargaining unit. The extent of the union's participation will be determined by the Vice-chair hearing the Application.
13As the applicant and the hospital have agreed to mediation, the Registrar will schedule such mediation in due course.
14I am not seized.
Dated at Toronto this 17th day of February, 2010.
“Signed By”
Alan Whyte
Vice-chair