Henick v. General Dynamics Land Systems - Canada, 2012 HRTO 1781

Human Rights Tribunal of Ontario

B E T W E E N:

Alexandra Henick Applicant

-and-

General Dynamics Land Systems – Canada and John Gargarella and Robbie Evans and Anthony Strangio and Rob Angus Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle Date: September 19, 2012 Citation: 2012 HRTO 1781 Indexed as: Henick v. General Dynamics Land Systems - Canada

WRITTEN SUBMISSIONS

Alexandra Henick, Applicant Murdie Laframboise, Representative

General Dynamics Land Systems – Canada, John Gargarella, Robbie Evans, Anthony Strangio and Rob Angus, Respondents George Avraam, Counsel

Introduction

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 sex ”. This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding.

2The applicant indicates in the Application that the facts of the Application are part of union grievances proceeding, and encloses a copy of the grievances filed on her behalf by her union (the “union”).

3In her Application, the applicant makes various allegations that the respondent discriminated against her in relation to and upon her return to work from maternity leave. Her allegations include having suffered disciplinary sanctions when other workers did not suffer such sanctions for similar behaviour. She alleges that she was disciplined for calling in to work after the start of her shift, but that other employees have done so with impunity. She also provided copies of two grievances she filed with regard to discipline, the second one being the grievance filed regarding discipline received for calling in after the start of her shift. In that grievance, she characterizes the discipline as “unjust”.

4On July 25, 2012, the Tribunal sent a Notice of Intent to Defer (NOID) to the parties, indicating that it may be appropriate to defer the consideration of the Application pending the resolution of the grievance process and inviting the parties to make submissions regarding deferral.

5The applicant opposes deferral, submitting that the grievance process will not resolve all of the allegations made in the Application. The submissions also noted that the first grievance regarding discipline has now been resolved by the parties and that the second grievance remains outstanding and is in the grievance process. The submissions indicate that the applicant did violate the respondent employer’s rule by calling in after the start of her shift, but that the issue is that this is “harassment and discrimination” because other employees calling in after the start of their shifts are not disciplined.

6The respondent supports deferral of this Application and states that the second, outstanding grievance, is proceeding to arbitration.

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

8The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 ).

9The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

10In this case, it appears from her submissions that the applicant will argue that the discipline she received is “unjust” because she was harassed and discriminated against. In making such an argument it is apparent that there will be substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. I am not satisfied that the applicant’s submissions regarding deferral justify deviation from the Tribunal’s usual approach. The matter is still live and the grievance process has not concluded. It is not yet apparent whether or not the applicant’s grievance will be referred to arbitration. But if the applicant believes, on conclusion of the grievance process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.

11The Application will therefore be deferred pending the completion of the grievance process.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.