Human Rights Tribunal of Ontario
B E T W E E N:
Cheryl Crawford
Applicant
-and-
O-I Canada Corp. and Wendy Purvis
Respondents
-and-
United Steelworkers, Local 260
Intervener
DECISION
Adjudicator: Paul Aterman
Indexed as: Crawford v. O-I Canada Corp.
APPEARANCES
Cheryl Crawford, Applicant
Self-represented
O-I Canada Corp. and Wendy Purvis, Respondents
James Knight, Counsel
United Steelworkers, Local 260, Respondent
Bernard Hanson, Counsel
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 and reprisal with respect to employment because of disability.
2The corporate respondent is a company that manufactures glass packaging. The personal respondent is a human resources manager at the company's Brampton facility. The applicant has worked for the company since 1990. She had an injury at work in 2003 and was off work for some time. The company terminated her employment in 2005 on the grounds that she would be unable to work for the foreseeable future. The applicant's union grieved the termination and succeeded in having the applicant reinstated on modified duties.
3In 2012 there was a plant-wide general layoff at the Brampton facility. The company and the union investigated options to accommodate the applicant's disability but it was determined that were no positions that the applicant could bump into that also met her work restrictions. As a result the applicant was laid off.
4The applicant filed this Application, alleging the decision to lay her off was discriminatory in that the corporate respondent failed in its duty to accommodate her disability. She also alleges reprisal by the personal respondent in the form of requests that the applicant visit the company's doctor, unfair imposition of discipline in relation to her absences from work and breach of her privacy by displaying her personal information in the workplace. There are no particulars provided in relation to the alleged acts of reprisal. The union also filed grievances in relation to her lay-off.
5On consent of the parties the Application was deferred to allow for the two grievances filed on behalf of the applicant to go to arbitration. The arbitrator released two decisions which outline how the grievances were resolved. Essentially, he oversaw a process in which the parties settled the grievances, and the settlements were confirmed in his decisions. In the decisions the arbitrator notes that the issues in this Application are the same as the issues raised by the grievances. He also notes that he has jurisdiction to consider and resolve Code issues through the arbitration process.
6Under the arbitrator's supervision the parties agreed, based upon the prevailing jurisprudence and the terms of the Code, that the applicant should not have been laid off. She was reinstated and was also awarded a monetary amount as compensation for infringement of her Code rights. The arbitrator's award of August 10, 2012 concludes at para. 13 as follows:
As I did in my earlier Award of May 28, 2012, I specifically note that the parties agree that I have jurisdiction under the Labour Relations Act, 1995 to consider human rights issues arising under the Human Rights Code and the parties agree that I should exercise that jurisdiction in this case. I take my obligation to consider human rights issues very seriously and I am satisfied that the deliberations of the parties under my supervision and my consequent Awards and Orders have fully considered the Grievor's human rights, whether arising under statute or the collective agreement.
7Following the release of the arbitrator's decisions the applicant requested that the Application be re-activated. She also requested that the corporate respondent be removed as a party to the Application, but that it proceed as against the personal respondent. Her request to re-activate the Application was granted and a teleconference hearing was held to determine whether the Application should be dismissed because the arbitration was a proceeding that appropriately dealt with the substance of the Application.
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." I am satisfied that a grievance arbitration is a proceeding within the meaning of s.45.1. I now need to determine whether the arbitration appropriately dealt with the substance of the Application.
9The applicant argues that the arbitration did not deal with what she alleges was the harassing conduct of the personal respondent toward her. The respondents' position is that the personal respondent acted at all times in her capacity as an employee of the corporate respondent. They further argue that the arbitrator dealt comprehensively with the applicant's human rights concerns, including her concerns about the conduct of the personal respondent.
10In the course of the hearing the applicant did not point to any instances of alleged conduct by the personal respondent that could be seen as going beyond the scope of her actions as a human resources manager, nor did she set forward any reason for thinking that the arbitrator's award did not