James v. Kuehne & Nagel Ltd., 2011 HRTO 2317

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louisa James

Applicant

-and-

Kuehne & Nagel Ltd., Mark Dunstan and Rose Ann Carvalho

Respondents

INTERIM DECISION

Adjudicator: Ian R. Mackenzie

Date: December 28, 2011

Citation: 2011 HRTO 2317

Indexed as: James v. Kuehne & Nagel

APPEARANCES AND WRITTEN SUBMISSIONS

Louisa James, Applicant ) Self-represented

Kuehne Nagel Ltd., Mark Dunstan ) Anita B. Elkaim, Representative and Rose Ann Carvalho, Respondents )

1Louisa James filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of race and family status. Her employment was terminated after her return from maternity and parental leave and she alleges that her employment ended because she had taken this leave. She also alleges that her manager did not want to work with her because of her race. The applicant self identifies as Black, and of Caribbean origin.

2Allegations relating to discrimination on the basis of pregnancy have been found to fall within the Code ground of “sex” rather than “family status.” The allegation that the Applicant was terminated because she took maternity and parental leave would in part arise directly from her pregnancy and in part from her parental leave (which could raise overlapping grounds of sex and family status). While the applicant herself framed this part of her allegations as being on the basis of family status, ultimately the characterization of these allegations as either on the basis of sex, family status or both does not, for the reasons below, affect my conclusions with respect to this portion of the allegations.

3The respondents filed a Request for Order during Proceedings (“RFOP”) requesting that the Application be dismissed in accordance with section 45.1 of the Code because an Employment Standards officer (“ESO”) appointed under the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (“ESA”), has already dealt with the issues raised in the Application. Section 45.1 of the Code states that the Tribunal has the discretion to dismiss an Application in whole or in part if it is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

4A teleconference hearing of the RFOP was ordered on May 4, 2011. The hearing was limited to the issues raised in the RFOP.

5The applicant did not provide written submissions in reply to the RFOP. She made oral submissions at the teleconference hearing.

Background

6The applicant was employed as a customer service representative with the respondent from June of 2006 until October 5, 2010. She was on maternity and parental leave from July 2009 until August 3, 2010. Her employment was subsequently terminated on October 4, 2010. The respondent alleges that the termination of employment was because of performance issues. The applicant alleges that the termination of employment was because she had been on maternity and parental leave and because of her race.

7The applicant filed a claim under the Employment Standards Act. The applicant disputes that she raised the issue of her pregnancy-related leave in her complaint. She maintains that she only intended to address the issue of appropriate severance pay and unpaid overtime. Her position is set out in the summary of the submissions of the parties, below.

8On January 5, 2011, the ESO sent a notice of a “meeting” to the corporate respondent. The applicant did not state whether she received a copy of the notice. She was, however, aware of the meeting and discussed it with the ESO (see paragraph 9). The notice set out what needed to be brought to the meeting and the right to call witnesses. The notice also stated that “based on the information in this claim, it is expected the following issues will be addressed at the meeting: pregnancy and parental leave…”

9The meeting was rescheduled because of weather conditions to February 9, 2011. The applicant did not attend the meeting. She stated that she told the ESO that she could not attend because she had just started a new job. She stated that she did not know that the meeting was going ahead without her. She did not ask for the ESO to reschedule the meeting.

10The corporate respondent attended the meeting and provided information to the ESO. At the meeting, the corporate respondent provided a cheque payable to the applicant for unpaid overtime.

11A decision was issued by the ESO on February 24, 2011, dismissing the claim. A copy of the decision was sent to the applicant and the respondent. In a letter attached to the decision, the applicant was advised that she had 30 days to file an application for review with the Ontario Labour Relations Board (“OLRB”) if she disagreed with the decision. She did not file an application for review.

12The applicant stated at the summary hearing of this Application that she had spoken to the ESO about the findings. The ESO told her what the decision was and that she had received payment for unpaid overtime. The ESO also told her about her right to appeal the decision. The applicant stated that she told the ESO that she had filed an Application with the HRTO (Human Rights Tribunal of Ontario). She told the ESO that she would wait for the Tribunal to address her discrimination allegations.

13The decision of the ESO set out the background of the employment relationship and the issues that the employer had with the performance of the applicant. The ESO identified the following questions to be addressed:

1. Had the claimant not taken pregnancy leave would there have been any changes to her job duties?

2. Was the claimant given proper training?

3. Was the claimant dismissed from her employment because she took pregnancy leave?

14After reviewing the evidence provided by the respondent, the ESO concluded:

Based on the Information provided, it does not appear that the claimant’s dismissal from her employment was related to her pregnancy leave. It appears that both the employer and the customer were frustrated with the mistakes that were being made on the account, which were mostly attributed to the claimant; therefore the employment relationship was frustrated so the employer terminated the claimant’s employment.

The evidence indicates that whether or not the claimant had gone on pregnancy leave there would have been a change to her duties by adding the new account, which is something that is common with this employer.

Based on all the evidence. it is my determination that the employer has not been found to be in violation of the Act. It is determined that the employer has not contravened section 53 (1) of the Act because changes were not made to the claimant's position prior to her returning from pregnancy leave, and she was reinstated to her original position.

I do not think that the employer has an anti pregnancy animus. Kuehne &. Nagel went over and above its duties to attempt to keep the claimant in her position, but she was unable to perform the essential duties of the job. It is unfortunate that the claimant was affected negatively by her employment being terminated. As such, it is determined that there is no violation of the Act with respect to this claim as the claimant's employment has been terminated in a bona fide manner.

15The ESO did not address allegations of discrimination on the basis of race in her decision.

Submissions

16The respondent submitted that the ESO had appropriately dealt with the matters contained in the Application, including the allegation of racial discrimination. The respondent submits that the ESO concluded that the termination of employment was solely related to the applicant’s performance. The respondent stated that if the applicant was dissatisfied with the conclusions of the ESO, she had a right to submit the decision to the OLRB for review.

17The respondent stated that the test for issue estoppel had been met in this case: the issues were the same, the parties were the same and the decision was a quasi-judicial decision. I was referred to the following decisions: Chen v. Harris Rebar, 2009 HRTO 227; Henderson v. Nutech Fire Protection, 2010 HRTO 2153; and Mukherjee v. RMF Design and Manufacturing, 2009 HRTO 2111.

18The applicant stated that she was not present at the ESO hearing and did not have an opportunity to dispute any of the evidence provided by the respondent at that hearing. She submitted that the claim was just about overtime and severance pay and she did not claim discrimination in the proceeding under the ESA. She questioned what evidence the ESO had to come to a conclusion on discrimination. She submitted that she did not see the need to appeal the decision because she had an Application with the Tribunal. She also submitted that she knew that she would not get a fair hearing at the OLRB.

19The respondents submitted that the applicant had an opportunity to attend the meeting with the ESO. It was her choice not to attend. The respondents submitted that the ESO clearly referred to pregnancy leave and she obviously got that information from the claim.

Analysis and Decision

20For the reasons which follow I have dismissed the part of the Application related to discrimination on the basis of family status. The allegation of discrimination on the basis of race was not expressly addressed by the ESO. The Application does not make a connection between the bald allegation that a manager did not want to work with the applicant because of her race and her termination of employment. A further summary hearing is required to determine whether there is a reasonable prospect of success of the remaining allegation in the Application.

21Section 45.1 of the Code requires a two-part analysis: (1) was there another “proceeding” and (2) if so, “did it appropriately deal with the substance of the Application”.

22The Tribunal has held that a claim determined by an ESO constitutes a “proceeding” within the meaning of the Code: Henderson v. Nutech Fire Protection; Little v. TeleTech Canada, 2009 HRTO 1763; and Poirier v. MacLean Engineering & Marketing, 2010 HRTO 1672.

23The similarity between applications filed under the Code and claims filed under the ESA related to pregnancy and parental leave has been noted by the Tribunal: Chen v. Harris Rebar, at para. 13. The pregnancy and parental leave provisions along with section 74 of the ESA are anti-discrimination provisions and the ESO has broad remedial powers to address any violations, including damages for lost wages, loss of reasonable expectation of ongoing employment and damages for mental distress, as well as the power to reinstate an employee to their employment in appropriate circumstances.

24The proper avenue for an individual not satisfied with an ESO’s decision is an appeal to the OLRB rather than an application under the Code: Zeamanuel v. Avcan Management, 2010 HRTO 1721 at para. 17.

25In this case, the allegations relating to discrimination on the basis of family status were thoroughly canvassed by the ESO in the decision. I therefore conclude that the allegations in the Application relating to family status have been appropriately addressed by the ESO and it is not appropriate that the Tribunal hear these allegations.

26I am satisfied that the applicant had notice of the hearing under the ESA, since she advised the ESO that she could not attend the re-scheduled hearing. A failure to attend a hearing where notice has been provided does not change the fact that the other proceeding addressed the substance of the allegations raised in this Application. I also note that the applicant did not ask that the hearing before the ESO be rescheduled.

27The applicant has also alleged that her manager did not want to work with her because of her race. The ESO did not address this allegation in the decision.

28In her Application, the applicant has not explained any link between her termination of employment and the alleged prohibited ground of race. A further summary hearing will be required in order to determine if the Application has a reasonable prospect of success. As set out in Dabic v. Windsor Police Service, 2010 HRTO 1994, the issue to be determined is “whether there is a reasonable prospect that evidence the applicant has or that is reasonably available … can show a link between the event and the alleged prohibited ground.” A bald allegation that a manager did not want to work with the applicant because of her race is not sufficient to demonstrate a reasonable prospect of success.

29For these reasons, the allegations alleging discrimination on the basis of family status are dismissed. The allegation of discrimination on the basis of race will be addressed in a further summary hearing to determine if the allegation has a reasonable prospect of success.

30I am not seized.