Mitsubishi Thompson v. Gemma Communications, 2011 HRTO 519

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mitsubishi Thompson

Applicant

-and-

Gemma Communications

Respondent

DECISION

Adjudicator: Eric Whist

Date: March 15, 2011

Citation: 2011 HRTO 519

Indexed as: Thompson v. Gemma Communications

1This Application, which was filed on January 10, 2011 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination in employment on the grounds of sex and "record of offences".

2On February 3, 2010 the Tribunal issued a Notice of Intent to Dismiss ("NOID") the Application. The NOID indicates that it appears that the Application is outside the Tribunal's jurisdiction because the events described in the Application fail to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The NOID directs the applicant to provide written submissions within 30 days as to why his Application is within the Tribunal's jurisdiction. The applicant has not provided submissions as of the date of this Decision.

3According to the Application the applicant was a sales representative for the respondent from January 25, 2007 to October 4, 2010. The Application states that the applicant was off sick on Saturday October 2, 2010 but returned to work on Monday October 4, 2010 at which time the respondent refused to accept his doctor's note and told the applicant to go home and that the respondent would be in touch with him. The Application states that the applicant heard nothing from the respondent until the next pay day when he received a Record of Employment stating that his employment had been terminated. The Application also refers to the applicant's manager having previously made negative comments about the applicant.

4The Application alleges that the applicant was discriminated against based on his sex because the applicant, who is male, saw women miss days or be late without any disciplinary action. The Application alleges that the applicant's manager harassed the applicant by picking on him, singling him out and being "personal & vindictive". The applicant indicates in the Application that record of offences is a ground of discrimination that applies to this case (Section 5) but later states that he does not believe he was discriminated against because of his record of offences (Section A36). The Application also states that the applicant was sick for one day, not disabled in response to a question as to whether the applicant had to take time off work because of his disability (Section A20).

DECISION

5An application will only be dismissed at a preliminary stage if it is "plain and obvious" on the face of the application that it does not fall within the Tribunal's jurisdiction. This has been established by the Tribunal's jurisprudence. See Masood v. Bruce Power, 2008 HRTO 381; Morin v. Alliance de la function publique du Canada, 2008 HRTO 58; Hotte v. Ontario (Finance), 2008 HRTO 63.

6Having reviewed the Application I am of the view that the applicant has failed to identify an act of discrimination related to the ground of "record of offences" which is defined in the Code as a conviction for an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or an offence in respect to any provincial enactment.

7I am of the further view that the applicant has failed to indicate how his manager's alleged harassment is related to a ground under the Code, including sex. I further note that the applicant has not alleged nor provided information to suggest he was discriminated against on the basis of disability.

8However, the applicant does indicate that he believes he was differentially treated because of his sex when his employment was terminated. He alleges he was aware of women who were not warned or disciplined in relation to missing work contrary to what he believes occurred at the time of his employment was terminated.

9The applicant has not provided much information in his Application in relation to the termination of his employment. There is little information on why the applicant believes the employer's decision to dismiss him was related to his one day absence except a brief reference to the respondent not accepting his doctor's note. However, based on my review of the Application, it is not plain and obvious that this Application falls outside the Tribunal's jurisdiction given the applicant's allegation of differential treatment based on sex.

10Accordingly, the Application will proceed and will be delivered to the respondent. However, the Application only proceeds in regard to the allegation of sex discrimination related to the events of October 2 and 4, 2010 and the subsequent termination of the applicant's employment. These are the only allegations of discrimination that the respondent is required to respond to.

11The parties should note that a decision to continue to deal with an Application is not a final decision regarding the Tribunal's jurisdiction in respect to the Application (Rule 13.5).

12I am not seized of this matter.