Shenmin Zhang v. Olivieri Foods Inc., 2012 HRTO 1760

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shenmin Zhang Applicant

-and-

Olivieri Foods Inc. and Cathy Martin Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: September 18, 2012 Citation: 2012 HRTO 1760 Indexed as: Zhang v. Olivieri Foods Inc.

APPEARANCES

Shenmin Zhang, Applicant Self-represented

Olivieri Foods Inc. and Cathy Martin, Respondents Dan Shields, Counsel

Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, Respondent No one appearing

1This is an Application dated August 31, 2011, and 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 family status and reprisal or threat of reprisal.

2A summary hearing was directed by the Tribunal, on its own initiative, to determine whether this Application should be dismissed as against the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union (the “Union”) on the basis that there is no reasonable prospect that it will succeed as against this respondent. The summary hearing was held by teleconference on May 31, 2012. While given notice of the summary hearing, no one appeared on the teleconference on behalf of the Union. The Company respondents took no position on this issue.

3The Tribunal does not have the general power to deal with allegations of unfairness or to apply the duty of fair representation by unions or employee associations. It can only deal with alleged discrimination or harassment on the grounds set out in the Code.

4The Tribunal has held that it is not discrimination for a union or association to decide not to file or pursue a grievance, unless the reason for doing so was based on one of the grounds in the Code. In Traversy v. Mississauga Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

See also Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, at paras. 16-18.

5In his written and oral submissions, the applicant took issue with various aspects of the Union’s representation in relation to the incident giving rise to the termination of his employment and the ensuing grievance. The applicant’s employment was terminated on the basis that he was “stealing time and money” from the Company by finishing work, getting changed and sitting in the cafeteria, and punching out afterwards on numerous occasions. This is disputed by the applicant, who states that he was terminated on the basis of only one alleged incident on March 18, 2011, and that no other instances were raised with him. The applicant further states that he punched out in accordance with regular practice at the Company and just ahead of another White employee who punched out at approximately the same time, yet was not disciplined.

6The applicant takes issue with the Union’s representation of him in relation to this incident on a number of bases. He states that Union representatives repeatedly advised and badgered him to admit that he was stealing. In the specifics in support of this allegation, it appears that one Union representative in particular was encouraging the applicant to apologize to the Operations Manager (the respondent Ms. Martin) and to tell her that he would not do it again, in which case the Union representative believed that everything would be fine. The applicant refused to do so as a matter of principle, on the basis that he was only doing what other employees also were doing. When he raised the issue of what other employees were doing, a second Union representative is alleged to have told him not to drag others into it and that the difference was that the applicant had gotten caught.

7The applicant also raised an issue about the Union’s failure to take issue with the Company’s description of how it kept time for its employees, which the applicant alleges is false. The applicant takes issue with the Union’s failure to challenge the computer time records relating to the other employee who the applicant says punched out just after him. The time records obtained by the Union show that this other employee punched out at 11:36 p.m., whereas the applicant is shown as having punched out at 11:52 p.m. The applicant then went and obtained a signed statement from this other employee, confirming that this other employee had punched out at 11:52 p.m., just after the applicant. When the applicant showed the original signed statement to the Union, the applicant alleges that a Union representative seized the statement and refused to give it back, saying that it was “too dangerous” to let others see it.

8The applicant states that he made numerous telephone calls and sent numerous e-mails to the Union in the two months they were dealing with his grievance, but only received one return phone call and that was to tell the applicant not to contact the Union lawyer directly. The applicant also states that he was not given a copy of his grievance and alleges that the Union deliberately failed to file the proper form to close out the grievance process in order to assist the Company in delaying his Application before this Tribunal.

9As stated in Traversy, supra and Arias, supra and many other decisions of this Tribunal, it is not this Tribunal’s role to assess the effectiveness of how a union represents its members or even if the union acted “wrongly” in some general sense, for example by making the wrong call on whether the grievance had merit and should be pursued to arbitration, or by misapprehending or even suppressing relevant evidence. For instance, the applicant believes that the statement given by the other employee is of critical importance to his case, in that it shows that the Company selectively targeted one employee for termination while not proceeding against a second White employee who punched out after the applicant. This is a significant part of the applicant’s claim against the Company before this Tribunal. Yet, according to the applicant, the Union seized the original signed statement from him and refused to present it to the Company or use it as a basis to support referral to arbitration. While this may seem “wrong” to the applicant in a general sense, there may be many reasons why the Union may have felt that it was “too dangerous” to bring forward such evidence, such as potentially exposing another member to discipline and perhaps termination or triggering a more widespread review by the Company of its members’ practices when punching out.

10The only issue within this Tribunal’s jurisdiction is to consider whether the Union acted in the manner it did because of a discriminatory factor. This is the aspect of the case that the applicant needs to address, and it ultimately is his legal burden to prove that a discriminatory factor was involved.

11In his written and oral submissions, the applicant alleges that the Union failed to properly represent him and acted in the manner that it did due to his advocacy on behalf of other racialized employees, which the applicant states led to bitterness and “deep hatred” towards him as a member of a racialized group. The applicant relies upon three specific incidents to support this allegation.

12First, there was an issue with the Union in relation to his spouse, who also is employed by the Company and also is a member of a racialized group. The applicant states that in 2007 a notice was posted jointly by the Company and the Union regarding back payments for workers who had previously worked as temporary employees and then had become full-time employees. The applicant states that his spouse compiled the necessary material regarding her entitlement to a back payment, and submitted this material in December 2007. However, the applicant states that no back payment was forthcoming. Sometime in early 2009, the applicant states that his spouse discovered that another employee, who is White and was hired as a temporary employee after the applicant’s spouse, had had her seniority backdated by one year, putting her ahead of the applicant’s spouse in seniority. The applicant states that his spouse confronted a union representative, who provided explanations that the applicant states were untrue. The applicant’s spouse then spoke to a Company human resources representative, who is stated to have provided a different explanation, which was inconsistent with the backdating of the White employee’s seniority.

13In his oral submissions, the applicant stated that he raised the issue with the Union representative that this was racial discrimination, because his spouse is Chinese and the other employee is White. The applicant states that this allegation resulted in him and the Union representative not being on speaking terms for about a year. The applicant states that after this time, the Union representative initiated contact with him again and they resumed being on speaking terms.

14Second, the applicant states that there was an issue in 2009, when he again attempted to intercede with the Union on behalf of an employee who is a member of a racialized group. This employee had been paged by his supervisor, but was working in a location where he could not hear the page. The applicant states that when this employee did not respond to the page, the supervisor became convinced that the employee was taking longer breaks or hiding somewhere. The applicant states that when this employee emerged, the supervisor was angry and a dispute erupted in which the supervisor threatened to suspend the employee and take further disciplinary action. The applicant states that he spoke to a Union representative the following morning, as he was a witness to where this employee had been working. The applicant states that he told the Union representative that the supervisor had made a mistake and that the Union should speak out for this employee. The applicant states that the Union representative refused to do so, asked the applicant why he cared about this employee, and told the applicant to “let it go”.

15In his oral submissions, the applicant stated that he is not exactly sure what happened with this employee and whether he ultimately received a suspension. The applicant states that he is pretty sure that the employee received a written warning, but he is not certain. The applicant further clarified that the Union representative said, “I am the union steward, leave me alone”.

16Third, the applicant raised an incident from January 2007, when he states that he was denied lunch by his lead hand. This incident occurred on a Friday evening, when the Company provided free pizza to the employees. As a result, the applicant did not bring his own lunch or money to buy lunch. The applicant was given a break at 6:30 p.m. that evening, which he understood to be a 15-minute break and not his lunch break as the free pizza did not arrive until 7 p.m. When the applicant later raised with the lead hand that he had not been given his lunch break, the lead hand replied that the 6:30 p.m. break had been his lunch break. The applicant ultimately went to the lunchroom at 8:40 p.m. and there was very little pizza left and it was being eaten by other employees. The applicant then went to his manager to complain that he had not been given his lunch. The applicant states that he ultimately informed his manager that he was leaving work because he had not been given his lunch and had nothing to eat. The applicant states that the manager said nothing in response, so he left work and went home.

17The applicant was suspended for three days for leaving work without notifying his supervisor and for failing to return to work. The applicant grieved this suspension through his Union. However, after submitting the grievance, the applicant states that a Union representative took the position that the discipline was justified as the applicant had left work without permission. The applicant expressed his view that he had informed his manager that he was leaving work and that the manager had failed to say “no”, so he was entitled to take silence as permission to leave. The applicant states that the grievance was aborted and this left a “bad taste” between him and the Union representative.

18These incidents were not raised in the Application as a basis for alleging that the Union violated the applicant’s rights under the Code and only were brought forward in the context of the summary hearing. As the Union has not yet been required to file a Response to the Application pending the result of the summary hearing and as the Union did not participate in the summary hearing, I do not know to what extent the Union disputes the versions of events as told by the applicant.

19However, even assuming that the allegations raised by the applicant are true and capable of being proven at a hearing, I am not satisfied that they provide a basis upon which I can conclude that the applicant has a reasonable prospect of success in establishing that the Union discriminated against him contrary to the Code in relation to the Union’s representation of the applicant and its conduct pertaining to the termination of the applicant’s employment, whether by direct evidence or by inference and considering the approach and cautions set forth in Dabic v. Windsor Police Service, 2010 HRTO 1994.

20With regard to the incident involving the applicant’s spouse, while it is clear that the applicant states that he raised an allegation of racial discrimination against the Union and that this resulted in him and a Union representative not being on speaking terms for a period of time, this event occurred approximately two years before the termination of the applicant’s employment. On the basis of the applicant’s own submissions, relations with this Union representative had been restored approximately one year before the applicant’s termination. Given the passage of time and the restoration of relations, I find that the link between the applicant’s stated allegation of racial discrimination by the Union in relation to his spouse’s situation and the Union’s representation and actions in relation to the applicant’s termination two years later is tenuous at best and does not provide a basis to support a reasonable prospect of establishing either that the applicant’s race or his previous allegation of racial discrimination against the Union played a role in the actions of the Union at issue in the Application.

21With regard to the second incident, even taking the applicant’s account at face value, the message he was getting from the Union representative was to back off and let the Union does it job in relation to this employee. With regard to the third incident, on the basis of the applicant’s account, I see a dispute between the applicant and his Union representative as to whether his conduct in leaving work on the night in question was appropriate. I fail to see anything in these latter two incidents that provides direct evidence or would support an inference that the Union was discriminating against the applicant because of his race, family status or engaging in reprisal in relation to the Union’s representation or actions regarding the termination of the applicant’s employment.

22I appreciate that the applicant is unhappy that the Union did not support him by taking his grievance forward to arbitration and that the Union did not want to use the signed statement from the applicant’s co-worker. But I do not find that the Union’s representation and actions in relation to the applicant’s termination, even accepting the applicant’s version of events, in and of themselves is sufficient to support a reasonable prospect that the applicant will be able to prove at a hearing that the Union engaged in discrimination against him contrary to the Code. Nor do I find that the previous incidents cited by the applicant would assist him in establishing discrimination by the Union in relation to the events at issue in the Application. The applicant was not aware of any situation where, for example, a White employee had been accused by the Company of stealing time and the Union pursued a grievance to arbitration or pursued the issue more aggressively.

23This Application will proceed against the Company respondents, and the applicant will have an opportunity in this Tribunal’s process to prove that the Company respondents discriminated against him because of race or family status or engaged in reprisal against him in relation to the termination of his employment. That is an entirely separate issue.

24However, on the basis of the material before me and considering the applicant’s written and oral submissions, I am not satisfied that he has a reasonable prospect of success in establishing a violation of the Code as against the Union. Accordingly, the Union is removed as a party respondent to this proceeding and the title of proceeding has been amended accordingly. If the Union nonetheless wishes to intervene in this matter, it shall serve and file a Request to Intervene within 35 calendar days of the date of this Decision.

25At the teleconference hearing on May 31, 2011, the Company respondents’ request for deferral of this Application also was addressed. This request was made at the time the Response was filed, on the basis that a grievance had been filed by the Union on the applicant’s behalf addressing the same issues raised in the Application. For the purpose of the teleconference hearing, I had material before me from the applicant indicating that he had been informed by the Union that it would not be proceeding with the grievance to arbitration, even though the proper form had not been filed by the Union with the Company to indicate this. As the Union did not appear on the teleconference hearing, I had nothing to contradict the applicant’s statement to this effect. Accordingly, in the absence of evidence that the Union is continuing to pursue the grievance, I find that there is no basis to defer this Application and it will proceed in this Tribunal’s process in the normal course.

Next Steps

26I note from both the Application and Response that all remaining parties have agreed to mediation of this matter. Accordingly, a mediation will be scheduled by the Tribunal and the parties will be afforded notice of mediation by the Tribunal in the normal course.