Gidopoulos v. Weston Bakeries, 2011 HRTO 1925

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Konstantinos Gidopoulos

Applicant

-and-

Weston Bakeries (Distribution Centre) and Ralph Robinson

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: October 25, 2011

Citation: 2011 HRTO 1925

Indexed as: Gidopoulos v. Weston Bakeries

appearances

Konstantinos Gidopoulous, Applicant ) Self-represented

Weston Bakeries (Distribution Centre) ) Robert Weir,

and Ralph Robinson ) Counsel

1This Application, which was filed on October 19, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in employment on the basis of ethnic origin, disability, and association with a person associated with a ground under the Code. The Application further alleges that the applicant was subject to reprisal by the respondents contrary to section 8 of the Code.

2The respondents have asked for early dismissal on the basis that another proceeding has appropriately dealt with the substance of the Application (section 45.1 of the Code), or, in the alternative, that it would be an abuse of process to allow the Application to proceed before the Tribunal. They have also requested that some parts of the Application be dismissed for jurisdictional reasons. A preliminary hearing by teleconference was held on July 5, 2011 to address these preliminary requests.

Background

3The applicant, whose ethnic origin is Greek, worked for the corporate respondent since 1987 until his employment was terminated in 2009 because he refused to sign a form acknowledging receipt of a new security pass card that he needed in order to replace one he had misplaced. The corporate respondent required the applicant to attend a meeting on November 13, 2009 with members of management and a union representative present, and was again advised to sign for the pass card. He refused and told his manager that he or his methods were “nazi like” and that he was anti-Greek. The corporate respondent terminated the applicant’s employment on November 25, 2009 because he refused to sign for the pass card and had a history of suspensions justifying termination.

4The Application alleges that the termination was not only discrimination because of ethnic origin, as expressed in the applicant’s words to his manager on November 13, 2009. It alleges that the termination was also because of the applicant’s “association” with an application at the Tribunal filed by another employee against the corporate respondent, and because of his “association” with another proceeding before the Ontario Labour Relations Board where the applicant expects to testify in relation to a matter involving the corporate respondent and yet a different employee. Finally, the Application states that the management wanted to get rid of the applicant because of his injuries at work. The applicant attached several documents pertaining to injuries he incurred prior to the termination of his employment.

5The applicant’s union grieved the termination, and the arbitrator who heard the matter dismissed the grievance, finding that the termination was justified:

I also agree with counsel for the Union that I should restrict my decision to the events of November 13, 2009. Therefore, an issue such as whether the grievor said on November 23, 2009, “I am going to shoot you motherfuckers”, is irrelevant to my decision. The actions of the grievor and the comments he made at the meeting of November 13, 2009 are worthy of serious discipline. The request to sign a form acknowledging receipt of a new security pass card is a trivial matter. The request was reasonable and should have been complied with. It was repeated a number of times and reinforced by the Union. The grievor’s continuing refusal to sign is mystifying. His words at the meeting are not. His words are completely inappropriate and offensive. They should not have been said. His subsequent retraction was not genuine and his apology at the hearing did nothing to change to [sic] that. His words demonstrated his true conviction as to the approach and attitude of members of management. There was not, however, any evidence that such convictions were anything but “figments of his imagination”. Given the disciplinary record of the grievor, which includes three suspensions culminating in a five day suspension, the decision to terminate the employment of the grievor is appropriate.

Ethnic Origin

6Section 45.1 of the Code 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.

7The respondents submit that a grievance arbitration is a proceeding within the meaning of section 45.1, that the Application arises out of the same facts that formed the basis of the grievance, and that the substance of the Application was appropriately dealt with by the arbitrator.

8In Campbell v. Toronto District School Board, 2008 HRTO 62 the Tribunal stated that it is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the Application. With regard to the second part, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding. See Robinson v. Spanish (Town), 2009 HRTO 1484.

9The Tribunal also discussed in Campbell some of the principles that apply to the interpretation of s. 45.1, which include:

• 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; and

• 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 was reached in the other forum.

10There is no question that arbitrators appointed pursuant to the Labour Relations Act, 1995, S.O. 1995, c. 1 Sched. A., as amended have jurisdiction to apply the Code and that a grievance hearing constitutes a proceeding for the purposes of section 45.1 of the Code. The Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42). See also Wei v. Seneca College of Applied Arts and Technology, 2010 HRTO 2046; Manhas v. A.O. Smith Enterprises, 2010 HRTO 659; and Dunbar v. Haley Industries Limited, 2010 HRTO 272.

11The basis for the allegation of discrimination because of ethnic origin advanced by the applicant is his description of what happened with his manager, Mr. Ross, at the meeting on November 13, 2009 when the applicant accused Mr. Ross of being “anti-Greek” and “nazi like”. The applicant indicated on the Application that he does not know why he believes he was discriminated against because of his ethnic origin, and that “it’s just one of those people (Ross) that have something against someone.” [original grammar] .

12Having read the decision of the arbitrator, and having heard the parties’ description of the hearing before the arbitrator, I agree with the respondents that the grievance proceeding has appropriately dealt with the substance of the Application with respect to the applicant’s allegation of discrimination based on ethnic origin.

13The November 13, 2009 meeting was clearly the subject of the grievance proceeding. In the grievance proceeding, the arbitrator reviewed the applicant’s “anti-Greek” accusations against Mr. Ross at the November 13, 2009 meeting, and found that they were unsubstantiated. While the arbitrator did not articulate his finding as a dismissal of an allegation of human rights discrimination, he dealt with the same facts as those which formed the substance of that part of the Application which alleges discrimination based on ethnic origin or because management is allegedly “anti-Greek”. The Application with respect to discrimination on the basis of ethnic origin is therefore dismissed.

Disability, Association and Reprisal

14The applicant has argued that he was prevented by his union from raising issues before the arbitrator other than the November 13, 2009 meeting involving his ethnic origin, but he has not yet provided evidence with respect to this alleged inability to raise other human rights issues before the arbitrator. This would be relevant to a determination as to whether allowing the Application to continue would constitute an abuse of process. Also, the applicant has not yet provided his evidence generally with respect to the facts he alleges constitute reprisal or discrimination with respect to disability or association. Many of those facts appear not to be linked to these grounds. In the circumstances, it is not appropriate at this stage to determine whether the grievance proceeding dealt with the facts alleged by the applicant to constitute reprisal or discrimination with respect to disability or association, nor to determine whether these remaining allegations in the Application should be dismissed for abuse of process or jurisdictional reasons.

15It appears to me that the most fair, just and expeditious way to deal with the Application with respect to the remaining grounds is to commence with a one day hearing at which only the applicant’s evidence will be heard to determine if the applicant can establish a reasonable prospect that, on a balance of probabilities, his Code rights were violated. The applicant’s evidence will need to link the termination of his employment with disability, association and reprisal within the meaning of the Code. Prior to that day, no disclosure or witness statements are required. On that day, the respondents will not be required to tender evidence. After the applicant’s evidence has been heard, the parties should be prepared to address whether there is no reasonable prospect of the Application’s success.

16There may be a subsequent day of hearing scheduled, depending on the evidence of the applicant, and the parties may at that time be required to tender evidence with respect to abuse of process and the applicant’s assertion that he was prevented by the union from raising the remaining allegations of discrimination before the arbitrator. The respondents also may be required to tender evidence in any subsequent day of hearing with respect to any and all remaining allegations.

ORDER AND FURTHER DIRECTIONS

17To summarize, the part of the Application that alleges discrimination because of ethnic origin is dismissed. A one day hearing will be scheduled to hear the applicant’s evidence with respect to the remaining allegations. Prior to that one day hearing, no disclosure or witness statements are required. At the hearing, the respondents will not be required to tender evidence. After the applicant’s evidence has been heard, the parties should be prepared to address whether there is no reasonable prospect of the Application’s success. Another day of hearing may be scheduled subsequently.

18I am not seized of this matter.