Simopoulos v. Sprint Insight Inc., 2013 HRTO 1092

Human Rights Tribunal of Ontario

B E T W E E N:

Christopher Simopoulos Applicant

-and-

Sprint Insight Inc. Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: June 19, 2013 Citation: 2013 HRTO 1092 Indexed as: Simopoulos v. Sprint Insight Inc.

WRITTEN SUBMISSIONS

Christopher Simopoulos, Applicant Self-represented

Sprint Insight Inc., Respondent Jessica Young, Counsel

INTRODUCTION

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability. Specifically, the applicant alleges that the respondent failed to meet its duty to accommodate his disability to the point of undue hardship and that the respondent laid him off because of his disability.

2The respondent asks the Tribunal to dismiss the Application because the applicant signed Minutes of Settlement following a grievance in which it was alleged, among other things, that the respondent had infringed the applicant's Code-protected rights. In addition, the respondent asserts that the Workplace Safety and Insurance Board ("WSIB") has appropriately dealt with the substance of the Application in its determination that the respondent violated its reemployment obligations. In the alternative, the respondent asks the Tribunal to defer further consideration of the Application pending the conclusion of an objection currently before the WSIB Appeals Branch.

3The applicant filed a Reply in which he opposes the request to dismiss the Application. He did not take a position on the request to defer the Application.

BACKGROUND

4On March 28, 2011, the applicant was employed by the respondent through a union hiring hall. On April 12, 2011 the applicant sustained a right elbow injury in the course of his employment. He remained off work until April 18, 2011, when he returned to modified work. The WSIB determined that the applicant was entitled to loss of earnings benefits for his lost time from work under the Workplace Safety and Insurance Act, 1997, S.O, 1997, c.16, Sched. A ("WSIA").

5In August 2011 the applicant developed left elbow symptoms. The WSIB determined that the left elbow condition arose as a result of overuse of the compensable right elbow condition and accepted that the left elbow condition was work-related on that basis.

6On June 17, 2012, the WSIB determined that the applicant was fit to resume regular duties with no modifications.

7On August 12, 2012, the respondent laid the worker off. The respondent maintains that the lay-off was for shortage of work. The WSIB determined that as a result of the lay-off, the respondent had violated its reemployment obligations under the WSIA.

THE GRIEVANCE PROCEDURE

8The applicant is a member of the United Association of Plumbers and Pipefitters, Local 46 ("the union"). The applicant received a two-day disciplinary suspension in December 2011 and a five-day disciplinary suspension in February 2012. The two-day suspension was resolved through a verbal settlement.

9The union filed a grievance on February 8, 2012 and the union's legal counsel wrote a letter to the respondent on February 23, 2012 alleging that the respondent was "engaging in a course of conduct intended to intimidate and harass Mr. Simopoulos following his WSIB compensable workplace injury", contrary to legislation, including the Code. The grievance was resolved by Minutes of Settlement which indicated that there had been "a number of misunderstandings and miscommunications". The settlement included withdrawal of the suspensions and payment to the applicant for lost wages and acknowledgement by the applicant that a future failure to attend work without prior approval could result in discipline. There was no mention of the Code in the Minutes and there was no Release.

10The Tribunal has consistently found that an applicant is not allowed to bring an Application to the Tribunal when the applicant has resolved a grievance proceeding and signed Minutes of Settlement and/or a Release that provide that the applicant shall not bring, or continue with, an Application under the Code. The Tribunal has found that allowing an Application to proceed in such circumstances would be an abuse of process.

11In this case, the grievance procedure was not resolved on that basis. The fact that the grievance form or correspondence from union counsel mentions the Code is not particularly relevant if the grievance was not settled on any Code-related basis. On the facts of this case, I find that the grievance procedure is not relevant to the Application and is not a bar to bringing the Application.

THE WSIB PROCESS

12The respondent asks the Tribunal to dismiss the Application because the WSIB has appropriately dealt with the substance of the Application, or, in the alternative, to defer further consideration of the Application.

13It is clear that there is overlap between the issues that the WSIB has determined and the issues raised in the Application. The respondent has filed an objection to the Case Manager's decision and at the time the respondent filed the Response, the objection was with the WSIB Appeals Branch and it expected that the objection would be dealt with by a WSIB Appeals Resolution Officer. It therefore appears that the proceeding at the WSIB is still underway.

14I find that it is not appropriate to determine if the WSIB proceeding has appropriately dealt with the substance of the Application because that proceeding is still underway. However, I find that it is appropriate to defer further consideration of the Application.

15Some factors that have been identified as relevant in deciding whether to defer consideration of an Application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

16In this case, deferral will mean that there are not two proceedings underway at the same time both arising out of the same factual history. There will also then be a decision of the WSIB on the events in question and a decision about the applicant's entitlement to benefits from the WSIB in respect of those events.

17The Tribunal will therefore defer further consideration of the Application pending a decision by a WSIB Appeals Resolution Officer on the respondent's objection to the decision of the Case Manager.

18Once that decision has been issued, either party may apply to the Tribunal to have the Application re-activated. The request to re-activate must be made within 60 days of the decision of the Appeals Resolution Officer.

19If the applicant believes that the process at the WSIB has become unduly prolonged and that it is not reasonable to wait for a decision from the Appeals Resolution Officer, he may ask that the Application be re-activated on that basis.