Zu v. Hamilton (City), 2010 HRTO 557

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Zu

Applicant

-and-

City of Hamilton and Lorraine Paddon

Respondents

-and-

Canadian Union of Public Employees, Local 5167

Intervenor

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: March 15, 2010

Citation: 2010 HRTO 557

Indexed as: Zu v. Hamilton (City)

1This is an Interim Decision in respect of an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that she was discriminated against on the grounds of race, place of origin, ethnic origin, and disability in the context of employment. The applicant also alleges reprisal or threat of reprisal.

2In their Response, the respondents seek the early dismissal of the Application pursuant to s. 45.1 of the Code. They say that the applicant filed grievances regarding the same issues raised in the Application and that the parties have entered into a settlement agreement which deals with the subject matter of the Application. The applicant argues that, given the circumstances in which it was signed, the settlement agreement should not bar the Application.

3The Canadian Union of Public Employees, Local 5167 (the “Union”) has filed a Request to Intervene. The applicant objects to the Union’s intervention on the basis that she feels the issue is between her and the City of Hamilton (the “City”).

Union’s Request to Intervene

4The 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.

5I am satisfied that the Union has the requisite interest in this Application. The Union is granted leave to intervene.

Respondents’ Request to Dismiss

6The Application includes a range of concerns. In essence, the applicant alleges that she was unfairly criticized for alleged performance issues, that the respondent criticized her English, and that she was not given the same opportunities for promotion as others. She also states that she was treated differently from others in terms of the ability to bank time; that she was disciplined for being absent from work even though her absence was justified in a medical note; and that she was denied a transfer.

7The applicant filed the following three grievances:

• on March 10 2009, alleging the City breached, among other things, the collective agreement by denying the applicant permission to participate in a flex time program;
• on April 27, 2009, alleging the City breached, among other things, the collective agreement by unjustly disciplining the applicant on April 3, 2009; and
• on May 21, 2009, alleging the City breached, among other things, the collective agreement by denying the applicant’s request for a transfer and by transferring employees with less seniority.

8The City, the applicant and the Union settled the three grievances and entered into a memorandum of settlement on August 14, 2009 in which they agree that:

a. the memorandum of settlement is a final and binding settlement of the three grievances;

b. the City remove the April 3, 2009 verbal warning from the applicant’s personnel file on the understanding that the applicant not bank flex time without the approval of her manager; and

c. the City grant the applicant seven hours of flex time.

9In the Application, the applicant acknowledges that minutes of settlement were reached but she suggests they should not bar this proceeding because, when she signed the agreement, she was under stress, had not slept and was not aware of the choices available to her if she did not sign the minutes of settlement.

10In the Reply, the applicant states that the grievances were not appropriately dealt with, that her concerns were not resolved through the grievance process and that, in any event, the grievances “were not from a human rights point of view.”

11Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application within its jurisdiction without affording the parties a chance to make oral submissions. Accordingly, the Registrar will schedule a hearing to address the following issues:

• Should the Application or a part of the Application against the respondents be dismissed pursuant to section 45.1 of the Code?
• Should the Application or a part of the Application against the respondents be dismissed because the parties have reached a settlement and it would be an abuse of process to allow the Application or part of the Application to proceed?

12The following directions shall apply to the hearing:

• The applicant should be prepared to proceed first at the hearing, by responding to the written arguments of the respondents and the questions set out in paragraph 11 above.
• Any party wishing to rely on written materials not already filed with the Tribunal or any facts not contained in the Application or Responses must deliver such documents or information to the other parties and file them with the Registrar within 21 days of the date of this Interim Decision.

13I am not seized of this matter.