Samsam Abdulle v. National Car Rental and Alamo Rent-a-Car, 2012 HRTO 2097

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samsam Abdulle

Applicant

-and-

National Car Rental and Alamo Rent-a-Car

Respondents

-and-

United Food and Commercial Workers Canada, Local 175

Intervenor

INTERIM DECISION

Adjudicator: Mary Truemner

Date: November 5, 2012

Citation: 2012 HRTO 2097

Indexed as: Abdulle v. National Car Rental

WRITTEN SUBMISSIONS

United Food and Commercial Workers Canada, Local 175, Intervenor

Fernando Reis, Counsel

1This Application was filed on May 14, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). It alleges reprisal with respect to employment. The applicant alleges, amongst other things, that the respondent employers refused to offer her a job as a greeter because she had earlier filed a human rights application against them.

2On June 26, 2012, the respondents filed a Response denying the allegations. The respondents also indicated in the Response that the Application should be deferred pending the outcome of grievance proceedings dealing with the same facts as in the Application. The Response indicates that the applicant's union, United Food and Commercial Workers Canada, Local 175 ("the union") filed the grievance on the applicant's behalf because the applicant and the union allege that the respondents violated the collective agreement by hiring an external candidate for the greeter position instead of the applicant.

3On August 16, 2012, the Tribunal wrote to the applicant with the Response, alerting her to the request to defer, and advised her that she had until August 30, 2012 to file a Reply.

4On August 31, 2012, the union filed a Request to Intervene as a non-party intervenor. It requests to have "the opportunity to address any evidence led regarding the conduct of the union or its representatives with respect to the Application." It also requests to have the opportunity to make final submissions regarding union conduct, the collective agreement and remedy. It takes no position with respect to the deferral request.

5The applicant has not filed a Reply, and therefore appears not to oppose the request to defer the Application. The applicant has also not filed a position with respect to the union's request to intervene.

Request to Intervene

6The Tribunal stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant's bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

7Based on the information provided by the Application and Response, as well as by the submissions of the union, I am satisfied that the union has an interest in the outcome of the Application. The union demonstrates that it has knowledge of the applicant's situation, and it particularly has an interest in that part of the Application that deals with the greeter position.

8Given that the applicant and respondent do not oppose the intervention of the union, and given that I see no exceptional circumstances to deviate from the Tribunal's standard practice to allow unions to intervene where applicants are members of bargaining units represented by the unions, the union's request to intervene in this case is granted.

9The scope of the union's intervention and terms of participation will be decided by the adjudicator overseeing the hearing.

Deferral

10The applicant has not communicated her position with respect to the deferral request, the union takes no position and the respondent's submissions in favour of deferral state that the grievance was to have very soon gone to arbitration.

11The Tribunal may defer consideration of an Application on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1 of the Tribunal's Rules of Procedure). Deferral of an Application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The Tribunal will generally defer an Application where there is an ongoing grievance under a collective agreement based on the same facts and issues. (See Melville v. Toronto (City), 2012 HRTO 22). However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

12A substantive portion of the Application focuses on the facts surrounding the applicant's application for the greeter job and the respondents' refusal to give it to her, the substance of the grievance. They both allege that she should have been offered the job. Since the facts and issues in the Application and the grievance overlap significantly, proceeding with the Application at the Tribunal could very possibly lead to inconsistent decisions on the facts and/or legal issues raised in the Application and the grievance. The primary purpose of deferring an Application is to avoid such potential inconsistency. In all of the circumstances, I find that deferring the Application is appropriate.

13The parties' attention is drawn to Rules 14.3 and 14.4 of the Tribunal's Rules of Procedure, which address how the Application may be brought back on before the Tribunal, following conclusion of the grievance and arbitration procedure. The Rules of Procedure are available on the Tribunal's website, www.hrto.ca under "New Applications".

14I am not seized.