Shaw v. Pepsico Foods, 2012 HRTO 1152

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terence Shaw

Applicant

-and-

Pepsico Foods and Chad Birkoff

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: June 12, 2012

Citation: 2012 HRTO 1152

Indexed as: Shaw v. Pepsico Foods

WRITTEN SUBMISSIONS

Terence Shaw, Applicant

David Little, Counsel

Pepsico Foods And Chad Birkoff, Respondents

Andre Nowakowski, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race and colour.

2In a Request for Summary Hearing, the respondents raised an issue of delay in respect of several of the allegations made by the applicant, some of which are well outside the one year statutory timeframe provided in section 34(1) and (2) of the Code. The respondents also suggested that some of the allegations made by the applicant relate to events that have been the subject of grievances filed by the applicant pursuant to a collective agreement between his union and the respondent, and that have been resolved between the parties.

3The Request for a Summary Hearing was rejected by the Tribunal by letter dated May 18, 2012. However the issues raised by the respondent remained outstanding. In a Case Assessment Direction (“CAD”), I deferred consideration of the delay issues until after hearing the evidence of the applicant. However, I directed the parties to address in writing prior to the hearing the question of whether it would be appropriate to hear evidence of matters that were also the subject of grievances filed by the applicant and resolved in the grievance procedure.

The Delay Issues

4In their submissions the respondents continue to assert that it would not fair, just or expeditious to hear evidence about untimely allegations. As indicated in my CAD, other than with respect to evidence of apparently untimely allegations that were also the subject of grievances filed by the applicant, the delay issue will be addressed after the applicant has concluded his evidence. The points made by the respondents in this regard may be made at that stage and given the practical consequences of the scheduling of this case, this approach will impose no significant burden on the respondents.

Abuse of Process

5As indicated in the CAD, different considerations may apply to the allegations of discriminatory discipline imposed on the applicant because some of these incidents, in addition to being untimely, may have also been dealt with in grievances filed by the applicant and apparently resolved in favour of the applicant, at least to some degree. The applicant appears to be relying on a number of allegations of unfair discipline between 2008 and 2010 as follows:

a. June 29, 2010 - A three day suspension for "cake" incident in alleged violation of a “peanut free policy; applicant escorted out of the plant; a grievance dated July 13, 2010 was filed and resolved in October 2010 with the withdrawal of the suspension by the respondent – although the applicant claims that he has not been compensated for the work days lost;

b. March 26, 2010 - Three day suspension for allegedly leaving early; applicant escorted out of plant; no grievance filed;

c. December 9, 2009 – alleged informal discipline for alleged insubordination in asking for union representation in meeting with management – applicant escorted out of plant; no grievance filed;

d. September 11 ,2009 - One day suspension for use of 2 x 4 and paint can in production area – alleged to be a health and safety violation; applicant escorted out of plant; grievance filed and issue resolved with respondent withdrawing the suspension in May 2010;

e. July 18,2008 - One day suspension for allegedly moving car during work time, applicant escorted out of the plant – a grievance was filed but status unclear;

f. April 21, 2008 written discipline for alleged insubordination in moving cars and use of company email – grievance filed but status uncertain.

6The Tribunal has the discretion to refuse to consider allegations that have been appropriately dealt with in another proceeding pursuant to section 45.1 of the Code. Similarly the Tribunal has the authority pursuant to section 23(1) of Statutory Procedures Act R.S.O. 1990, c. S.22, as amended, to make such orders as are necessary to prevent an abuse of the Tribunal’s process including preventing the re-litigation of issues that had been raised and dealt with in another proceeding. The Tribunal has often declined to hear evidence about allegations that have been raised in other proceedings and either determined there or resolved between the parties. See for example Corbiere v. University of Sudbury 2012 HRTO 309 and Zu V. Hamilton 2010 HRTO 2461 and the cases cited therein.

7The applicant states that he is not seeking to re-litigate any of the grievances that were filed in respect of what he claims were incidents of unfair discipline and is not seeking a remedy that could have been achieved in the grievance process in respect of any of them. Rather the applicant argues that he is relying upon a pattern of allegedly unfair discipline which he believes has been informed in whole or in part by racial bias on the part of supervisors in the workplace.

8In this Application, the applicant alleges that on June 30. 2010 the individual respondent, in a conversation with another employee, expressed sympathy for a prior reference to the applicant as a nigger. The applicant argues that it was only when he learned of this conversation that he became convinced that the discipline was being imposed on him in whole or in part because of racial bias. The applicant states that his concerns about racial bias were not raised in the context of any of the grievances because at the time he filed them, he had no basis to raise the human rights issue. I note in this regard that the applicant appears to have raised his concerns of racial bias at the latest on July 20, 2010.

9The powers granted the Tribunal to dismiss all or part of an Application pursuant to section 45.1 or to prevent an abuse of process are discretionary. The question is whether it would be appropriate to allow the applicant to lead evidence about issues that were the subject of grievances filed by the applicant and subsequently settled. In all of the circumstances, I find that it would an abuse of process to allow the applicant to lead evidence with respect to incidents in respect of which a grievance was filed and resolved.

10The applicant states that he is not attempting to re-litigate these issues and is not seeking a remedy in respect of them. However it seems to me that this is precisely what is being proposed here. The applicant will be leading evidence about each of these incidents and how the discipline in respect of each of them was discriminatory. The respondent will then call evidence to justify each of their decisions to impose discipline and how it was justified in the circumstances. Questions about the rationale for the resolutions may well arise. And of course I will be asked to come to conclusions about whether each of these several incidents of allegedly racially biased discipline was justified in all of the circumstances and depend on my findings will similarly be asked to make an appropriate remedial award in relation to matters that were resolved in the grievance procedure.

11To my mind, call it what you will, what is contemplated here is the re-litigation of incidents that have been resolved in the grievance procedure. This is most particularly so in respect of the final incident of alleged biased discipline where it is clear on the material filed that when this grievance was being processed the applicant was aware of the June30, 2012 conversation and had raised the Code issue in an internal complaints process. The applicant could have and in my view, should have raised his Code issue in that forum. I do not accept the applicant’s submission that the Code issues could not have been resolved in the grievance procedure. This is simply not the case. If the parties were unable to resolve their dispute in that process, the union could have referred the dispute to arbitration where a labour arbitrator has the authority, indeed the obligation to consider Code issues in respect of a matter before her or him. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U. 2003 SCC 42, 2003 S.C.C. 42. In my view to allow the applicant to pursue this last incident of alleged discriminatory discipline would amount to an abuse of process and accordingly I will not hear evidence with respect to this incident. See Corbiere and Zu, above and Dunn below.

12In addition to these considerations with respect to this last incident it is also my view that the value in the workplace parties’ ability to enter into and rely on settlements freely arrived at, in these circumstances should be respected. The importance of settlement in our system of justice was discussed at length in the Tribunal’s Decision in Dunn v. Sault Ste. Marie (City) at paragraphs 33 to 36:

The Code and the Tribunal’s Rules support, facilitate and enforce the final and binding settlement of human rights proceedings between parties if they choose to resolve the matter voluntarily. The current Code, in s. 45.9, provides that a settlement of an application before the Tribunal is binding on the parties, may be incorporated into a Tribunal order on the joint motion of the parties, and may be the subject of an application for enforcement. The Tribunal’s Rules of Procedure provide for Tribunal mediation, on the initiative of the Tribunal or a party. The old Code, under which these complaints were filed, required the Commission to “endeavor to effect a settlement” of any complaint filed with it.The importance of final and binding settlements in the unionized workplace is articulated in the purposes of the LRA, which include “[t]o promote the expeditious resolution of workplace disputes”. The importance of binding agreements was articulated by the OLRB as follows in TRW Automotive (Kelsey-Hayes Canada Ltd.), [2000] OLRB Rep. July/Aug. 731 at para. 14:

Parties are entitled to rely on agreements freely entered into. Nothing would be more disruptive to orderly labour relations than to permit parties to revoke agreements among employees, their trade union, and their employer into which the parties have entered to settle disputes or potential disputes.

This is true of human rights disputes, in whatever social area they arise. There is a strong public interest in ensuring that when parties freely choose to resolve the substance of a human rights dispute, in whatever forum it is brought, the matter is at an end. This is a fundamental principle that should guide the Tribunal in the interpretation of s. 45.1 because to do otherwise could make the finality of settlements highly uncertain.

13I exercise my discretion to decline to hear evidence with respect to any other incidents of alleged unfair discipline that were resolved in the grievance procedure on the basis that doing so would constitute an abuse of process. On the basis of the applicant’s submission this would include, in addition to the alleged incident and grievances described in paragraph 4(a), the incident described in 4(d) above. There may be evidentiary issues with respect to some of the other incidents described above, in that although grievances were filed, their status remains uncertain. These issues can be canvassed in the evidence.