Herrera v. Multitech Contracting 2000 Inc., 2013 HRTO 1120

Human Rights Tribunal of Ontario

B E T W E E N:

Benito Herrera Applicant

-and-

Multitech Contracting 2000 Inc. and Carlos Lopes and Alfonso Mazzarella Respondents

INTERIM DECISION

Adjudicator: Paul Aterman
Date: June 25, 2013
Citation: 2013 HRTO 1120
Indexed as: Herrera v. Multitech Contracting 2000 Inc.

Appearances

Benito Herrera, Applicant Linda Vanucci, Counsel

Multitech Contracting 2000 Inc. and Carlos Lopes and Alfonso Mazzarella, Respondents Ernest Singer, Counsel

Background

1This Interim Decision deals with whether the Application in this case should be dismissed pursuant to s.45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") because a decision of the Ontario Labour Relations Board has appropriately dealt with the substance of the Application. For the reasons set out below, I find that it has not and that the Application should continue in the Tribunal's process.

2The applicant alleges that the respondents discriminated against him by failing to accommodate his disability and by terminating his employment. He maintains that he injured his back at work, informed his supervisor and was told by the corporate respondent's operations manager that he would need to provide a doctor's note. The applicant claims that he did so, and supplied a doctor's note indicating a need for time off work for three days. When he then returned to work, he requested further time off as he felt unable to perform his duties. He left work and alleges that he called his employer a few days later and was told by the operations manager to bring in a doctor's note upon his return to work.

3The respondents dispute this. Their position is that the corporate respondent has a policy of requiring any employee absence to be justified within 72 hours of its occurrence. They allege that the applicant was told to provide the doctor's note right away. The applicant did not provide a note, and when he came in to work to pick up a pay cheque several days later he was given a Record of Employment indicating that he had been dismissed.

4In addition to filing this Application, the applicant made a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O.1997, c. 16 and a claim for termination pay and vacation pay under the Employment Standards Act, 2000, S.O.2000, c.41. The claim for workers' compensation benefits was denied by the Workplace Safety and Insurance Board. An appeal to the Workplace Safety and Insurance Appeals Tribunal (the "WSIAT") is pending. The claim for termination pay was denied by an Employment Standards Officer, but that decision was overturned by the Ontario Labour Relations Board (the "OLRB").

5The Tribunal directed a teleconference hearing to determine whether the Application should be dismissed pursuant to s.45.1 of the Code because the OLRB decision appropriately dealt with the substance of the Application and, if the Application is not dismissed, whether it should be deferred until the WSIAT has adjudicated the matter before it.

6At the teleconference hearing counsel for the applicant indicated that he was withdrawing an allegation of reprisal made when the Application was originally filed, and the applicant is only asserting discrimination based on disability.

7The applicant's position in relation to s.45.1 is that the OLRB decision deals solely with the issue of how the applicant's employment was terminated, whereas the issue raised by this Application is not how, but why the applicant's employment was terminated. He argues that the OLRB did not engage in any analysis of whether the applicant's disability was a factor in the decision to end his employment. On this issue the respondents maintain that, even though the OLRB did not engage in any discrimination analysis, the factual findings of the OLRB have the effect of removing the factual foundation for the applicant's allegation of discrimination.

Analysis

The s.45.1 issue

8In s.45.1 the Code provides that 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."

9There are two issues to be determined here, whether the review by the OLRB was a proceeding within the meaning of s.45.1 and, if it was, whether the OLRB appropriately dealt with the substance of this Application.

Was the review by the OLRB a proceeding?

10There is a statutory right to an OLRB review of a decision made by an Employment Standards Officer (see s.116 of the Employment Standards Act, 2000). In this case the applicant exercised that right of review and the OLRB held an oral hearing, gave the parties an opportunity to lead evidence and make submissions. It issued written reasons for its decision.

11In Campbell v. Toronto District School Board, 2008 HRTO 62, at para.66 the Tribunal established that, at a minimum, a proceeding includes an adjudicative process established under a statutory regime. In light of the procedural protections governing an OLRB review of an Employment Standards Officer's decision, and applying Campbell, I conclude that the OLRB review in this case was a proceeding within the meaning of s.45.1.

Did the OLRB review appropriately deal with the substance of this Application?

12The OLRB decision finds that the applicant did not report his absence to the company. It notes that there is a conflict in the evidence about whether or not the applicant was told by the operations manager that he had to provide a doctor's note right away and before his return to work. The OLRB accepts the applicant's account that he was not clearly instructed to provide a doctor's note and that there was no clear articulation of this rule in company policy.

13Further, the OLRB finds that if an employee is to be terminated for wilful misconduct, and the company knows – as it did in this case – that the employee has an illness, then it is obliged to contact the employee to hear the employee's account. From this the OLRB goes on to determine that the applicant was entitled to be heard before being terminated for wilful misconduct. The OLRB finds that there was no wilful misconduct, and accordingly awards the applicant termination pay and related vacation pay.

14The OLRB decision is limited to analysing whether the applicant was under an obligation to provide a doctor's note immediately. It does not engage in an analysis of whether the applicant requested accommodation of his disability, whether the disability could have been accommodated up to the point of undue hardship and whether the disability was a factor in the decision to end the applicant's employment.

15Although the respondents argued that the OLRB's findings remove the factual underpinnings of his Application, they did not explain how this was the case. While the OLRB did make findings that the applicant had suffered an injury and that this was known to the corporate respondent and the operations manager when the applicant's employment was terminated, I am not satisfied that those findings alone would be determinative of the issue of whether the applicant was discriminated against. They may have been sufficient to support a finding that the applicant had not engaged in wilful misconduct, but they are not necessarily sufficient to support a finding that the respondents had engaged in discrimination. For these reasons I conclude that the OLRB decision did not appropriately deal with the substance of this Application, and the Application can proceed.

The issue of deferral

16The applicant anticipates that a hearing of the WSIAT appeal will not take place for a year. The parties indicated during the hearing that if this Application proceeds in the Tribunal's process, they would be interested in attempting to resolve it through mediation. In light of the parties' agreement to try mediation, it is not necessary at this stage for the Tribunal to address the question of whether to defer this Application until the WSIAT appeal is determined.

17If the Application is not resolved through mediation, either party can request the Tribunal to decide the deferral issue at that time.

Order

18The Application will not be dismissed pursuant to s.45.1.

19The applicant's allegation of reprisal is withdrawn.

20As the parties have agreed to attempt mediation, the Registrar is requested to schedule a mediation session.