Brenda Shannon v. Corporation of the County of Renfrew, 2010 HRTO 466

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Shannon

Applicant

-and-

Corporation of the County of Renfrew

Respondent

-and-

Canadian Union of Public Employees Local 3586

Intervenor

INTERIM DECISION

Adjudicator: Eric Whist

Date: March 2, 2010

Citation: 2010 HRTO 466

Indexed as: Shannon v. Renfrew (County)

1The Application was filed on September 8, 2009, 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 disability. This Interim Decision addresses a Request to Intervene made by the Canadian Union of Public Employees (“CUPE”) and its Local 3586 and a Request for an Early Dismissal made by the respondent pursuant to section 45.1 of the Code.

2The applicant is a full time Health Care Aide (“HCA”) who works at the Miramichi Lodge, a long term care home operated by the respondent. The applicant was injured at work in February 2001 and as a result has several physical restrictions that limit her ability to do all the expected tasks of a HCA. It appears the applicant has been successfully accommodated in the workplace by being assigned to work with residents who are mostly ambulatory and do not require the use of mechanical lifters or transfers.

3The applicant currently works full-time on an evening shift in Unit “2A”, one of Miramichi Lodge’s six residential units. It appears that some residential units are less conducive to accommodating the applicant in that they house residents with particular needs (e.g. residents with dementia).

4According to the respondent, there have been formal efforts involving the applicant’s union to identify which units would be suitable for the applicant and her need for modified work and which require physical demands that are beyond the applicant’s permanent physical restrictions. According to the respondent, it was agreed that the work required in certain units, including units “1A”, “1B”, “3A” and “3B”, exceeds the applicant’s physical restrictions.

5In May 2009, a full-time day HCA position in Unit 1B became available for which the applicant applied. The respondent alleges that when the applicant was apprised of the fact that she did not have the physical capacities to work in this unit, the applicant indicated that her actual interest in applying for the job was in order to gain access to the full-time day job in Unit 2A and that other HCAs (i.e. the HCA occupying the daytime position in Unit 2A) would move to other units to accommodate this interest.

6The applicant acknowledges her interest in the full-time daytime position in 2A and expresses a frustration that persons with no physical restrictions have potential access to a much broader range of positions than those that have physical restrictions. It appears that the applicant finds this to be discriminatory.

7On May 28, 2009, the applicant was advised that her application for the HCA position in Unit 1B was denied as it was not within her physical restrictions and that she was successfully accommodated in Unit 2A. On June 17, 2009, the applicant formally filed a grievance complaining that the decision violated several sections of the collective agreement including the anti-discrimination provisions of the Agreement. The remedy the applicant was seeking was transfer to a full-time day position.

8On July 10, 2009, a second stage grievance meeting was held that apparently involved the applicant, three union representatives (the Local 3853 President, Chief Steward and a CUPE national representative) as well as Miramichi Lodge management. According to the respondent, the meeting included a review of the accommodation efforts to date and an admission by the applicant that her interest was in the day job in Unit 2A. The meeting ended with the union withdrawing the grievance. A letter dated July 13, 2009, signed by the President of Local 3586, confirms that “the Union is withdrawing this grievance”. The applicant states in her Application that “Union couldn’t get mgmt to understand our case so we withdrew it.”

Request to Intervene

9CUPE and its Local 3586 ask to intervene on the basis that they are the applicant’s bargaining agent and they ask for the right to make further submissions in this matter. I accept this request given CUPE is the applicant’s bargaining agent.

Respondent’s Request to Dismiss Under Section 45.1

10Section 45.1 of the Code provides as follows:

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 respondent argues that the grievance procedure followed by the parties appropriately dealt with the substance of the Application and that the applicant should not be able to revive a complaint alleging discrimination before the Tribunal after she voluntarily withdrew from the grievance process. The respondent contends that the Application before the Tribunal involves substantially the same facts and same subject matter as her grievance and that finality in proceedings are important for parties in order to discourage multiplicity of proceedings.

12The Tribunal requires further information from the applicant and the union before deciding the Request to Dismiss. The union is directed to provide to the other parties and file with the Tribunal submissions within 21 days of the date of this Interim Decision addressing:

• the union’s submissions with respect to whether the grievance process culminating in the meeting of July 10, 2009 and subsequent withdrawal of the grievance constitutes a proceeding under Section 45.1 of the Code

• the union’s submissions with respect to whether the grievance has “appropriately dealt with” the substance of this Application;

13The respondent and the applicant may respond to the union's submissions within 28 days of the date of this Interim Decision.

14The parties’ attention is drawn to a recent decision of the Tribunal which considered the issue of whether a withdrawn grievance could be considered a proceeding that appropriately dealt with the substance of an Application under section 45.1 of the Code: Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10. Following receipt of the parties’ submissions the Tribunal will issue further directions.

15I am not seized of this matter.