Akash v. Toronto Transit Commission, 2012 HRTO 2373

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ahmed Akash

Applicant

-and-

Toronto Transit Commission and Amalgamated Transit Union, Local 113

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: December 20, 2012

Citation: 2012 HRTO 2373

Indexed as: Akash v. Toronto Transit Commission

APPEARANCES

Ahmed Akash, Applicant ) Self-Represented

Toronto Transit Commission, Respondent ) Marni Tolenski, Counsel

Amalgamated Transit Union, ) Carlo Di Giovani and

Local 113, Respondent ) Tony Jones, Counsel

)

INTRODUCTION

1The Application was filed by the applicant under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination in employment on the basis of disability as well as reprisal or threat of reprisal.

2On April 2, 2012, following a summary hearing, I issued an Interim Decision dismissing the Application in part. With the exception of one allegation, I found that the Application had no reasonable prospect of success: 2012 HRTO 677.

3Following the Interim Decision, the only outstanding issue relates to the applicant’s allegation that he was discriminated against because he was not paid a spread allowance when he worked a split shift as a rear door loader.

4In my Interim Decision, I stated that I could not determine whether this allegation had a reasonable prospect of success based on the materials before me. I directed the parties to file and exchange additional written submissions. On November 26, 2012, l held a further telephone conference hearing at which I heard oral submissions from the parties regarding whether the remaining allegation had no reasonable prospect of success.

5For the reasons that follow, Application may proceed to a hearing on the merits regarding the following issue only:

Is it discriminatory for the Toronto Transit Commission (“TTC”) not to include rear door loading work in those categories of work that quality for a spread allowance under the collective agreement?

6In regards to this issue, I cannot conclude that the Application has no reasonable prospect of success. The remaining allegations (including all allegations against the Amalgamated Transit Union, Local 113 (the “Union”)) are dismissed because they have no reasonable prospect of success.

PROCEDURAL ISSUES

7In the additional submissions he filed pursuant to my Interim Decision, the applicant argues that I erred in the Interim Decision by dismissing parts of the Application. The applicant’s written submissions do not address whether the remaining allegation has no reasonable prospect of success.

8At the telephone conference hearing, I explained to the parties that I would hear oral submissions only on the sole outstanding issue, namely whether the failure to provide a spread allowance for rear door loading work has no reasonable prospect of success. I explained to the applicant that his concerns regarding the Interim Decision may be addressed at a later stage of the proceeding.

ANALYSIS

9The collective agreement between the TTC and the Union provides for a spread allowance for three categories of workers (transportation operators, collection/subway suppliers and traffic checkers). Individuals who do these categories of work and who are scheduled for a split shift that spans a period of 10.5 to 12 hours (depending on the applicable provision of the collective agreement) are entitled to additional compensation, which is referred to as a spread allowance.

10The parties agree that the applicant was not paid a spread allowance for work he did as a rear door loader. The applicant argues that this is discriminatory for three reasons. First, he states that the parties have misapplied the collective agreement, which he states entitles him to a spread allowance for rear door loading work. Second, and in the alternative, he argues that if the collective agreement does not provide a spread allowance for rear door loaders, this is discriminatory because most of the workers doing this category of work are disabled and being accommodated for a disability. Third, he argues that the Union discriminated against him because it did nothing to assist him regarding his concerns about spread allowance.

11The relevant provision of the Code is s. 5, which states:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Interpretation of the collective agreement

12The applicant has provided and relies on excerpts of section 10 of the collective agreement between the TTC and the Union. This section states that spread allowances apply to collectors who work as “special crews”, “two-piece crews” and “reports”. He argues that rear door loaders fall into one of these three categories and are therefore eligible for spread allowance.

13The Union and the TTC dispute this interpretation of the collective agreement. They describe a very complex workplace in which some pieces of work are assigned and referred to as “crews”. They explained that the rear door loader work is not assigned as a “crew”, nor is it a “report” within the meaning of the collective agreement. The Union and the TTC both argued that the rear door loader position is not contemplated in the collective agreement and that it is a category of work created by the TTC, primarily (but not exclusively) for disabled employees who are being accommodated for a disability and are transitioning back to their regular duties.

14Importantly, it is not the Tribunal’s role to adjudicate disputes regarding the interpretation of a collective agreement. In this case, there is a dispute between the parties as to whether, under the collective agreement, rear door loaders are entitled to a spread allowance when they work a split shift.

15Even if I assume (without deciding) that the collective agreement does provide a spread allowance for rear door loading work, the applicant has not provided any basis to conclude that his disability was a factor in the respondents’ allegedly incorrect interpretation of the collective agreement. In other words, while the applicant argues that the respondents breached the collective agreement, he does not allege that a Code ground was a factor in this breach. Even assuming (without deciding) that the rear door loader position is eligible for a spread allowance under the collective agreement, the applicant has not identified anything beyond a dispute between the parties as to the correct interpretation of the collective agreement. Thus, even if he could show that he is entitled to a spread allowance under the collective agreement, the applicant has provided no basis to show that the denial of this allowance is related in any way to his disability. Accordingly, this portion of the Application is dismissed.

16I note that some non-disabled employees also work as rear door loaders. There was no dispute that all employees, whether they are disabled or not, do not receive a spread allowance when they work as rear door loaders. In light of this, I do not accept that the applicant’s disability was a factor in the respondents’ interpretation of the collective agreement or the refusal to pay a spread allowance.

Categorization of Work under Collective Agreement

17In the alternative, the applicant argues that it is discriminatory for the respondents not to include rear door loading work from those categories of work that quality for a spread allowance under the collective agreement. He argues that the work of the rear door loader closely resembles that of the crash gate position, which does qualify for spread allowance under the collective agreement. He argues also that rear door loaders are primarily disabled workers and, therefore, that disability is a factor in the failure to pay additional remuneration for split shift work. The applicant also argued that given, in his view, the work of rear door loaders is similar to that of crash gate collectors, these two categories of workers should be paid the same.

18The Union and the TTC explained that several positions at the TTC require employees to work split shifts and that, over the years, the Union and the TTC have negotiated for the payment of a spread allowance for much, but not all, such work.

19Counsel for the TTC explained that any distinction in terms of eligibility for a spread allowance is based on categories of work, not on workers’ disability.

20Counsel for the TTC explained that disabled workers are paid a spread allowance when they do work that qualifies for this allowance under the collective agreement. Thus, since crash gate work may qualify for a spread allowance, employees (be they disabled or not) receive additional remuneration when they work a split shift at crash gates.

21Conversely, the Union and the TTC agreed (and the applicant did not dispute) that non-disabled employees who do work that does not qualify for a spread allowance do not receive additional remuneration. Thus, employees (be they disabled or not) who do rear door loading work are not paid a spread allowance.

22At the hearing, I queried whether the creation of a category of primarily disabled workers who are not remunerated as well as most others who work split shifts is suggestive of a distinction based on a Code ground. Counsel for the TTC vigorously disputed this. First, as I have described above, she argued that remuneration for split shifts is based on the category of work performed, not on whether the worker has a disability. Second, she argued that the TTC is a complex work environment: spread allowances, although paid to many employees, are not universally available; they have been negotiated over time by the Union and the TTC.

23For the purposes of this stage of the analysis, I am assuming (without finding) that rear door loading work does not qualify for spread allowance under the collective agreement.

24I find that this portion of the Application may proceed. While I have heard the TTC’s response to this allegation, based on the material before me at this stage of the proceeding, I am not satisfied that the applicant has no reasonable prospect of showing that disability is a factor in his not being paid a spread allowance when he worked a split shift as a rear door loader. In reaching this conclusion, I am influenced by the existence of a category of mostly disabled workers that is one of the few categories of work that does not receive additional remuneration over split shifts.

The Union’s role

25I have already dismissed the applicant’s allegations that the Union’s failure to represent him is discriminatory: 2012 HRTO 677 at paras. 34-38. The remaining allegation against the Union is that it discriminated against the applicant by failing to negotiate a spread allowance for the category of rear door loaders or to challenge the TTC’s position in this regard.

26The Union argues that these allegations have no reasonable prospect of success. It relies on the Tribunal’s decision in Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760 (“Gungor”), a case in which the Tribunal applied the Supreme Court of Canada’s decision in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970.

27As the Tribunal explained Gungor, a union incurs liability with respect to employment only if the union is a party to the discrimination. The union may become a party in two ways:

a. first, by participating in the formulation of the work rule that has the discriminatory effect on the complainant; and

b. second, by impeding the reasonable efforts of an employer to accommodate.

28In this case, the only issue presently before me is the applicant’s allegation that the Union discriminated against him by omission, because it failed to ensure that the category of rear door loader was eligible for a spread allowance. In this regard, the Tribunal has held that, absent some evidence that the Union’s position was based on a discriminatory factor, this type of allegation has no reasonable prospect of success: Pannu v. Peel District School Board, 2012 HRTO 930 (“Pannu”).

29For example, in Gungor, the Tribunal held that a Union’s acceptance (or at least its failure to challenge) a particular workplace rule is not the same as participating in the formulation of the rule (at para. 34) and it does not engender liability. Similarly, in Pannu, the Tribunal held that absent evidence that a union’s action or inaction was based on a discriminatory factor, a union’s failure to advocate on the applicant’s behalf, its failure to assist an applicant in addressing discrimination or to contest the employer’s actions, or its participation or involvement in an unsuccessful accommodation process do not amount to discrimination.

30Applying the reasoning from these cases, I find that there is nothing in the applicant’s submissions that could support a finding that the applicant’s disability was a factor in the Union’s behaviour or that the actions or omissions of the Union otherwise amounted to discrimination. Accordingly, there is no reasonable prospect that the allegations against the Union would succeed.

31Given my conclusions in paras 12-16, above, it is not necessary for me to consider the TTC and the applicant’s argument that the Union should remain a party to this matter because the allegations of discrimination arise out of the interpretation of the collective agreement.

DECISION

32For the reasons set out above, the Application is dismissed in part and the allegations against the Union are dismissed in their entirety.

33The matter may proceed to a merits hearing against the TTC on the following issue only:

Is it discriminatory for the TTC not to include rear door loading work in those categories of work that qualify for a spread allowance under the collective agreement?