Indu Thomas v. Revera Retirement Living LP, 2012 HRTO 997

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Indu Thomas

Applicant

• and-

Revera Retirement Living LP o/a King Gardens Retirement Residence

Respondent

decision

Adjudicator: Maureen Doyle

Date: May 16, 2012

Citation: 2012 HRTO 997

Indexed as: Thomas v. Revera Retirement Living LP

APPEARANCES

Indu Thomas, Applicant ) R. Philip, Representative

Revera Retirement LP, ) King Gardens Retirement Residence, ) E. Porter, Counsel Respondent )

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 in employment on the basis of sex.

2The applicant included in her Application a copy of an arbitral decision from Arbitrator Gordon Luborsky, dated September 26, 2011.

3The Tribunal issued a Case Assessment Direction (CAD) on January 30, 2012, directing on its own initiative that a half-day hearing by teleconference take place regarding the issue of whether the Application should be dismissed, in whole or in part, on the basis that another proceeding has appropriately dealt with the substance of the Application, pursuant to s. 45.1 of the Code. It directed that the respondent did not need to file a Response.

4A hearing by way of teleconference was held on May 4, 2012.

DECISION

5The Application is dismissed pursuant to section 45.1 of the Code.

Background

6The applicant was employed as an Unregulated Care Provider (UCP) at the respondent employer. The employer terminated her employment when she was in her eighth month of pregnancy. In her Application, she alleges that the termination was without just cause, she was not given a chance to explain, this decision was supported by both the employer and the union, and states that another pregnant employee was also terminated in her fourth month of pregnancy, all of which she alleges “shows that the management has fabricated a reason to terminate the service”. She alleged that this resulted in “mental tension and harassment at my last stage of pregnancy which affected my child’s birth also”, and that she was left without medical insurance.

7In her Application, she indicated that she had filed a grievance through her union regarding her termination, but that she did not believe that the other proceeding had appropriately dealt with the substance of her Application because the union, the respondent and the arbitrator had “accepted that the termination was UNJUST”. She stated that the arbitrator’s decision had ruled that once her maternity leave was over, she should accept the employer’s offer of working as a Personal Support Worker (PSW) as the position of UCP had since been abolished by the employer. She alleged that the pay of a PSW is “almost half” of the rate of pay of the UCP position. She alleged that the union and the arbitrator had not dealt with “the matter of harassment at my pregnancy period” and that the arbitrator has incorrectly stated in his decision that she had requested the amount of $20,000.

8The arbitrator Gordon Luborsky was appointed in accordance with section 50 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A, as amended (“LRA”). His decision states that the grievance alleged that the applicant had been “unjustly dismissed for alleged misconduct in connection with the failure to administer medication to a resident”. The decision indicates that the union denied much of the factual basis of the employer’s decision to terminate her employment and it demanded her reinstatement with back pay.

9The decision indicates that for the purposes of expediting the proceedings, the employer would agree that the applicant had been terminated from employment without just cause. Consequently, the employer argued that the only issue for the arbitrator to determine was remedy. It also submitted that it had eliminated the classification of UCP, a decision which was the subject of a separate union grievance, and that subject to the decision in that grievance, her position as UCP would no longer be available at the conclusion of her maternity leave. However, the employer was prepared to reinstate her to a comparable position of PSW if she had the necessary seniority to bump another PSW. Otherwise, the respondent employer argued, the applicant would be subject to the layoff and recall to employment provisions in the collective agreement. The decision indicates that the union “substantially agreed with the Employer’s position on remedy”.

10The decision also notes that the applicant’s husband sought to provide testimony on behalf of the applicant at the arbitration hearing, and that the arbitrator permitted him to do so. The decision indicates that when he testified, he submitted that the employer had discriminated against the applicant on the basis of race, and that the termination had been “pre-planned”, but he asserted that an employer was not permitted to terminate the employment of an employee who had requested pregnancy/parental leave, asserting that the employer “wanted to penalize the Grievor [applicant] for having applied for maternity leave”. He also claimed that the employer was not permitted to eliminate the applicant’s position once she had announced her intention to take maternity leave.

11In the decision, the Arbitrator stated that the applicant’s husband had claimed an award of “$20,000 as damages for the ‘harassment’ by the Employer”, in addition to other remedies.

12The Arbitrator noted that he has jurisdiction to apply the provisions of the Code, pursuant to subsection 48(12)(j) of the LRA. He noted that subsection 5(1) of the Code prohibits discrimination “on the basis, among other, because of ‘race’ and ‘sex’”. At paragraph 21, he found that:

Having considered all of the agreed facts, testimony and submissions of the Union, Employer and of the Grievor’s spouse, Mr. Philip, I find there is insufficient evidence to conclude that the Grievor was discriminated against because of her race or sex in violation of the Code and/or any provision under the collective agreement.

13With regard to the allegation that the Employer had a “pre-planned” intention to terminate the applicant’s employment once she filed a request for pregnancy/parental leave, the Arbitrator considered the applicant’s spouse’s hearsay evidence that she had applied for pregnancy/parental leave at least two weeks before she was terminated and concluded that even if her were to accept that assertion, it would not “lead to the conclusion the Employer terminated her for the purpose of interfering with her rights to leave under the ESA and/or on the basis of a prohibited ground of discrimination, such as sex, under the Code.” At paragraphs 22 and 23, the Arbitrator found:

Without evidence of differential treatment of individuals in similar circumstances from which I might properly infer discrimination on a prohibited ground in violation of the Code, I cannot conclude the Employer discriminated against the Grievor because of her race or sex.

[23]

In the present case, given there is no dispute that the Grievor hadn’t administered the required drug to the resident, but claims that it was not her responsibility to do so in the circumstances, I cannot find that the Employer acted in bad faith or with improper motives in at least suspecting that the Grievor had committed misconduct for which discharge might be an appropriate penalty.

14In his decision, the Arbitrator allowed the applicant’s grievance and awarded removal of discipline from her employment record, compensation for lost pay to the commencement of her maternity leave and stated that her rights and the employer’s obligations during the remainder of her pregnancy/parental leave, including the continued accumulation of seniority and the continuation of benefits, would be governed by the provisions of the ESA. He also ordered that at the conclusion of her pregnancy/parental leave, in accordance with the ESA, she would be entitled to the position she most recently held at the employer, if it still exists, or to a comparable position if it does not, subject to her seniority and the exercising of her bumping rights under the collective agreement. He remained seized to resolve any dispute regarding compliance with his award.

Hearing

15At the hearing in this matter, the applicant’s spouse made submissions on her behalf. He submitted that the matter should not be dismissed on the basis that another proceeding has appropriately dealt with the substance of the Application because on the day of the Arbitration, they were called to attend at 10:30 am and had to wait, while attending to the needs of their baby who was with them, until 3:30 pm for the hearing. He also submitted that though the Arbitrator’s decision states that the applicant sought $20,000, this was inaccurate and he had not stated any particular monetary figure even though the union had indicated that he should do so “for the record”. He submitted that his wife had made no error at work and that she had been dismissed without just cause when she was eight months pregnant. He submitted that even though the union and the respondent had indicated that she could return to work to a lower paying position, she had suffered a good deal of mental pressure and lost benefits and her baby’s health had been affected, and he submitted that someone must be held responsible for this. He submitted that there had been another woman at the workplace whose employment was terminated when she was four months pregnant and she had lost her baby. He finally submitted that she had not received justice from the union or from the Arbitrator.

16The respondent’s counsel submitted that the Arbitrator’s decision specifically dealt with the issues raised in the Application and raised on the applicant’s behalf in the hearing. She submitted that in making his findings, the Arbitrator considered specific allegations regarding the applicant’s leave and the allegation that the termination was due to her pregnancy. She submitted that pursuant to the LRA and the collective agreement, the Arbitrator has the jurisdiction to consider the allegations of a violation of her rights under the Code, and she submitted that he had done so.

17She submitted that as the allegations have been raised and addressed, in view of the Supreme Court’s decision in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”), the Tribunal should decline to proceed with this Application pursuant to section 45.1 of the Code.

ANALYSIS

18Section 45.1 of the Code states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

19I am satisfied that the grievance arbitration proceeding appropriately dealt with the subject matter of the Application in the circumstances for the purposes of section 45.1 of the Code.

20In Gomez, the Tribunal has found that the Court’s reasoning in Figliola applies equally to the interpretation of s. 45.1 of the Ontario Code and stated at paragraph 4 that:

If the reasons in the other decision dispose of the human rights issues before the Tribunal, the application or part of the application must be dismissed on the basis that it was appropriately dealt with in the other proceeding.

21The application of section 45.1 of the Code has been considered by the Tribunal, notably in Campbell v. Toronto District School Board, 2008 HRTO 62 and Noble v. York University, 2009 HRTO 1201 and in Gomez v. Sobeys Milton Retail Support Centre 2011 HRTO 2297 (“Gomez”).

22It is clear from these decisions that the Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1, however, the principal concern is not whether there has been related or parallel litigation, but whether the other proceeding has appropriately dealt with the substance of the application. In this regard, the Tribunal will consider whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code. (See Noble, supra, at para. 31.)

23As the Arbitrator noted in his decision, according to subsection 48(12)(j) of the LRA:

An arbitrator or the chair of an arbitration board, as the case may be, has the power,

(j) to interpret and apply human rights and other employment related statutes, despite any conflict between those statutes and the terms of the collective agreement.

24It is also clear that a grievance hearing constitutes a proceeding for the purposes of section 45.1 of the Code.

25The question, therefore, is whether the issues raised in the Application were appropriately dealt with by the Arbitrator.

26Though it does not appear that the grievance was originally framed to include allegations of discrimination contrary to the Code, it is evident that the applicant’s spouse placed that issue before the Arbitrator, and in his decision Arbitrator Luborsky has dealt squarely with these allegations. Section 45.1 requires more than a review of the form of the other proceeding and requires instead that the Tribunal look to the substance of the matters addressed. In particular, at the grievance proceeding it was alleged that the applicant was discriminated against by having her employment terminated when she was eight months pregnant and just after having announced her intention to take pregnancy/parental leave. In his decision, the Arbitrator considered the allegations and evidence tendered, the employer’s obligations under the Code which prohibit it from terminating her employment on the basis of a prohibited ground, such as sex, and stated that he could not conclude that the employer had discriminated against the applicant “because of her race or sex in violation of the Code”.

27This is the same allegation as she makes in this Application. The substance of that complaint has been dealt with in the grievance arbitration proceedings, and was the subject of explicit consideration and findings in the Arbitrator’s decision. The applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code. In the circumstances of this case, I am satisfied that the grievance arbitration has appropriately dealt with the substance of this Application.

28The Application is dismissed pursuant to section 45.1 of the Code.