HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Patranie Fagu Applicant
-and-
Carillion Services Inc. Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Fagu v. Carillion Services Inc.
APPEARANCES
Patranie Fagu, Applicant Self-represented
Carillion Services Inc., Respondent Daniel Shields, Counsel
CUPE, Respondent Susan Ballantyne, 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 reprisal and disability.
2In a Case Assessment Direction dated July 6, 2012, the Tribunal directed a summary hearing to determine if the Application should be dismissed in whole or in part as having no reasonable prospect of success. The summary hearing was directed on the Tribunal’s own motion and the respondents have not been required to file a Response.
3The summary hearing was held on October 18, 2012 by telephone conference call.
4For the reasons that follow, the Application as against CUPE is dismissed. The Application as against Carillion Services Inc. is not dismissed.
BACKGROUND
5The corporate respondent Carillion Services Inc. provides non-medical staff to a hospital. Its employees are members of a local of CUPE (the union). The applicant was employed as a porter. The job duties of a porter include transporting deceased persons in the hospital. According to the Application, the applicant was very uncomfortable with this aspect of the job and for the first four and a half years of her employment she was not required to do this aspect of the job. She alleges that she then was required to do this aspect of the job. She alleges that she brought a note from her doctor about this but she was still required to move bodies. She brought a second note in about November 2011 and was then transferred to food services. She did not want to be transferred to food services and asked her union for assistance. The applicant alleges that the union refused to assist her. The medical notes are not yet part of the record.
6The applicant’s employment was terminated on April 25, 2012. The letter of termination alleged that the applicant had fraudulently claimed to be disabled from working on February 16 to 18, 2012 and said that this was the reason for the termination.
7The applicant had concurrent employment with a nursing home. She explained that she did work at the nursing home on February 16 to 18 but only did a small aspect of her duties because she was injured as a result of a slip and fall in the hospital parking lot on or about February 15. Mr. Shields indicated that he understands that the applicant’s employment was terminated because the employer discovered that the applicant had worked in her concurrent employment while claiming to be disabled from working in her employment with the corporate respondent due to the slip and fall.
8The applicant alleges that the corporate respondent did not appropriately accommodate her aversion to moving cadavers. She suggests that this aversion is a disability under the Code. She further alleges that her employment was improperly terminated and that one of the reasons was that she had asked for accommodation and also raised complaints about the accommodation process.
9The applicant alleges that the union did not support her and did not offer to file a grievance. She also alleges that the union may have informed the corporate respondent that she worked in her concurrent employment on February 16 to 18, 2012. She believes this because the nursing home employees are also members of a CUPE local, although it is a different local than the one she belonged to. She agreed that she has no evidence to support this allegation and that it is only a suspicion that she has because she does not see how else the corporate respondent might have knowledge of her work in the concurrent employment.
10Mr. Shields submitted that the Application against the corporate respondent should be dismissed because an aversion to moving cadavers is not a disability under the Code and, even if it is, the employer accommodated the applicant by providing alternate employment in food services. Mr. Shields further submits that the applicant cannot successfully establish that her employment was terminated in reprisal for raising Code-protected rights because the applicant had not raised Code-protected rights in her dealings with the corporate respondent prior to the termination of her employment.
11On behalf of the union, Ms. Ballantyne submits that it is not true that the union refused to assist the applicant and that the applicant never requested that a grievance be filed. She notes that the Tribunal has consistently found that the fact that a union does not pursue a grievance or otherwise support a member to the extent the member wishes is not generally a basis for a successful application against a union. The union also denies that it had any knowledge of the applicant’s work in the concurrent employment in February 16 to 18, 2012.
CONCLUSIONS
12The test in a summary hearing is whether the Application should be dismissed because there is no reasonable prospect that the Application could succeed.
13Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.