HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Piechocinski
Applicant
-and-
Toronto Standard Condominium Corporation No. 1519
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Piechocinski v. Toronto Standard Condominium Corporation No. 1519
BACKGROUND
1The applicant filed an Application under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 31, 2008. This Interim Decision addresses a request by the respondent that the Tribunal dismiss the Application pursuant to section 45.1 of the Code because the substance of it has been appropriately dealt with in another proceeding.
2The applicant was a superintendent with the respondent. On March 13, 2007, the applicant alleges he suffered a workplace-related injury. His employment was terminated on March 15, 2007. The applicant believes his dismissal relates to his workplace injury. The respondent asserts the applicant was dismissed because of a restructuring of his position to improve services to the respondent’s residents. The applicant also alleges that he was required to work on March 14 and 15, 2007, despite his employer’s knowledge that he was injured and had been advised to not work by a physician.
3The applicant filed a claim with the Ministry of Labour seeking wages, overtime pay, vacation pay and statutory holiday pay, pay for eating breaks and pay for on call. The applicant also claimed he was reprised against because he pursued his rights under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”), and because he suffered an injury at work.
4The Employment Standards Officer released her decision on May 29, 2008. The Officer found the applicant was entitled to overtime pay and additional vacation pay on this pay. The Officer further found that the applicant’s dismissal was not as a result of a reprisal. The applicant appealed this decision. The hearing of the appeal before the Ontario Labour Relations Board (the “OLRB”) commenced on January 28, 2010. In a decision dated August 16, 2010, the OLRB dismissed the applicant’s appeal and, in doing so, it made findings of fact related to the applicant’s dismissal from his employment.
5The respondent states that the key underlying factual issue in this Application has been determined by the OLRB and therefore there is nothing left to be determined. The respondent relies upon the doctrine of estoppel and states that this legal rule preventing the relitigation of issues already determined is subsumed in section 45.1 of the Code.
DECISION
6After hearing the submissions of the parties I ruled, with written reasons to follow, that the question of why the applicant had been dismissed had been finally determined by the OLRB in its decision. I also ruled that the secondary question of whether or not the respondent had failed to accommodate the applicant on March 13, 14 and 15 was an issue that had not been, and could not have been, dealt with in the other proceeding. Accordingly a date was set for the hearing on that issue. My reasons for these conclusions follow:
7The issue before the OLRB was, at first blush, different in that the question as it relates to the applicant’s dismissal was whether the applicant had been subject to a reprisal for seeking enforcement of the ESA. However, in coming to its conclusions on that question, the OLRB made determinations that are binding on the parties, including the applicant, and which finally dispose of the allegation that the applicant was dismissed in whole or in part because of an alleged disability.
8Section 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.
9The OLRB made the following determinations in respect of the applicant’s dismissal on March 15, 2007:
While pursuant to section 74(2) of the Act the burden of proof lies with the employer, in this case, there is no evidence before the Board that Mr. Piechocinski asked TSCC to comply with the Act in the first instance, let alone that TSCC terminated him because he did so. Moreover, and in any event the only evidence before the Board, heard May 27, 2010, was that proffered by Mr. Shekter and it is uncontradicted. Mr. Shekter was forthright in his testimony, was unshaken on cross-examination, and the relevant documentation entered into evidence was corroborative and/or consistent with his testimony. The Board accepts Mr. Shekter's testimony in its entirety.
To summarize the evidence, the TSCC Board of Directors terminated Mr. Piechocinski's employment due to its assessment of Mr. Piechocinski's inadequate performance coupled with its view that TSCC needed an internal person with greater technical experience and skill than that possessed by Mr. Piechocmski. In respect of the latter issue, the costs associated with outsourcing work were increasing due to Mr. Piechocinski's lack of technical experience and/or expertise. Beyond this, the Board of Directors had received reports that Mr. Piechocinski was routinely unavailable and could not be located and that co-workers were experiencing difficulties interacting with him.
In these circumstances, the decision to terminate Mr. Piechocinski was made at a Board of Directors' meeting on July 7, 2005. An interim plan was established at that time by the Board of Directors whereby training would be provided to an already existing staff member and a search for a person with more technical expertise would be undertaken to replace Mr. Piechocinski. This latter task was out sourced to Del Property Management (“Del”) who were slow to find a suitable person. With pressure imposed by the Board of Directors on Del in December 2006 an advertisement was placed in the paper and Mr. Piechocinski's replacement was hired to commence the position on March 15. 2007. The Board was of the view that there should be no overlap between Mr. Piechocinski and the newly hired "operations manager" and as a result the decision to terminate Mr. Piechocinski was made effective March 15, 2007. TSCC heard nothing further from Mr. Piechocinski until after he filed a claim with the MOL in September 2007, alleging among others, the claims set out in paragraph 2 above. At no time, prior to Mr. Piechocinski filing his claim with the MOL, was the Board of Directors aware of Mr. Piechocinski's concerns relating to any entitlements under the Act.
10There is no question that a proceeding before the OLRB is a proceeding within the meaning of section 45.1 of the Code. Was all or part of the substance of the Application before the OLRB? I find that a significant element of it was. A key issue for determination in both cases is the reason or reasons for the decision to terminate the applicant’s employment. The allegation before the OLRB was that the applicant had been dismissed as a reprisal for his seeking the enforcement of the ESA. In the course of determining that question, the OLRB made factual findings that are a complete answer to the applicant’s allegation in this case that the injury sustained on March 13, 2007, was a factor in the decision to terminate his employment.
11These factual determinations made by the OLRB are as follows: the decision to terminate was made by the respondent in July 2005, it was based on performance issues and other operational considerations, and that the job advertisement for the applicant’s former position was posted in December 2006. These are factual determinations made by the OLRB that are binding on the parties to that proceeding.
12All of these things occurred well before the applicant’s accident at work on March 13, 2007, and therefore well before there was any potential issue of disability tainting the respondent’s decision to terminate. In light of these factual determinations, it would not be possible (and illogical) for me to somehow conclude that the decision to terminate was somehow tainted by a disability that did not exist at the time, but rather arose after, this decision was made.
13The applicant states that there were procedural irregularities in the OLRB’s handling of his case. For example, he claims to have not attended the final day of hearing because he did not receive proper notice. He also states that he asked for but was denied an adjournment of another day of hearing by the OLRB.
14I have a very limited ability to review the OLRB’s decision-making process. The issues raised by the applicant before me were considered by the OLRB and were determined by it in its various decisions including its reconsideration decision. There is accordingly no basis to conclude that the substance of much of the Application was not appropriately dealt with by the OLRB.
15However, the OLRB decision does not deal at all with the other aspect of the Application – the allegation that the respondent required the applicant to work on March 13, 14 and 15, 2007. despite his accident and alleged disability. The respondent states that, while the OLRB did not deal with the issue, it is very much a side issue and for that reason the entire Application ought to be dismissed. As I indicated at the hearing, I do not accept that proposition. The fact that the Applicant’s claim has largely been dismissed does not require dismissal of this remaining allegation, which on its own, could be found to be a violation of the Code.
16For the reasons set out above, the part of the Application dealing with the termination of the applicant’s employment is dismissed. The hearing will resume for evidence on the remaining allegation that the applicant was required to work on March 13, 14 and 15, 2007, notwithstanding his accident and alleged disability.
17I am seized of this case.
Dated at Toronto, this 6th day of May, 2011.
“Signed by”
David Muir
Vice-chair