Hansman v. Crofters Food Ltd., 2013 HRTO 1446

Human Rights Tribunal of Ontario

Between:

Eric Hansman Applicant

-and-

Crofters Food Ltd. Respondent

Interim Decision

Adjudicator: Mary Truemner Date: August 23, 2013 Citation: 2013 HRTO 1446 Indexed as: Hansman v. Crofters Food Ltd.

Written Submissions

Eric Hansman, Applicant Melissa Mark, Counsel

Crofters Food Ltd., Respondent Beverly Burns, Counsel

Introduction

1This is an Application filed on April 11, 2013 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 family status.

2The respondent has requested in its Response that the Application be dismissed under s.45.1 of the Code on the basis that another proceeding has appropriately deal with the substance of the Application. This Interim Decision denies the respondent's request.

Background

3The applicant alleges that he provided the respondent with written notice on May 27, 2011 that he would take a one-year "parental leave" from his employment upon the upcoming birth of his fourth child. The applicant commenced his leave on or about June 30, 2011. His request was acknowledged by the respondent which issued a Record of Employment identifying the leave requested as the reason for which the applicant stopped working.

4On May 29, 2012, the respondent sent the applicant a letter which terminated his employment. Citing the Employment Standards Act, 2000, S.O. 2000, c.41, ("ESA"), the respondent stated that the applicant had been deemed to have abandoned his position because he failed to return to work after the parental leave entitlement of 37 weeks which that legislation provides. The applicant protested, explaining that he had (mistakenly) understood that he had a one-year leave after which he wished to return to work, and at no time had the respondent indicated that he needed to return sooner so that the applicant had no idea that the length of his parental leave was a problem. The respondent did not change its decision to terminate.

5On July 13, 2012, the applicant filed an ESA claim, alleging that the respondent terminated his employment without notice while he was on a parental leave, and seeking reinstatement.

Section 45.1 Analysis

6Section 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.

7While the applicant checked off boxes in Question A9 of the Application to indicate that he experienced discrimination 1) in being denied a promotion; 2) in discipline and 3) in being fired, it appears from the narrative in the Application that its focus is that at least one of the reasons for which the respondent terminated the applicant's employment is because of his family status. The respondent argues that this issue was before the Employment Standards Officer ("ESO") dealing with the ESA claim.

8The ESA entitles an employee to a parental leave of 37 weeks without pay and section 53 of the ESA states:

Upon the conclusion of an employee's leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

9The ESO released a decision on February 20, 2013 which states, in part:

After a review of the evidence provided by both parties I find that based on the preponderance of the evidence, the claimant was not properly terminated and is therefore entitled to termination pay in lieu of proper notice.

With respect to the claimant's concern that he was not returned to his original position following a leave as required by section 53 of the Employment Standards Act, 2000 (Act) I find that this requirement is not applicable to the claimant's situation as he made no attempt to return to work at the conclusion of his 37 week parental leave. I am therefore denying this portion of the claim. Mr. Hansman therefore waived his right leaving the only entitlement to be determined to be that of termination pay.

While the employer contends that the claimant abandoned his employment by not returning to work at the conclusion of his parental leave, I find this is not the case. The written notice submitted May 27, 2011 by the claimant clearly informed the employer of his intention to take a one-year parental leave. The employer acknowledged the claimant's entitlement to the leave when they issued a ROE identifying the leave as the reason. If it was the employer's position that the claimant was not granted a leave of one year they should have taken decisive action to clarify the claimant's return date before the conclusion of the claimant's 37 week entitlement to a parental leave. It is clear to me that the claimant's contention (misguided or not) was to take a one-year leave and that this was communicated in writing to the employer in his May 27, 2011 letter. The employer provided no evidence to show that any attempt was made to amend the claimant's return date to be consistent with the 37 week parental leave. I therefore find that the employer has failed to meet their onus of proof that the claimant abandoned his position. I also find that the issues raised by the employer regarding the claimant's performance has no bearing on this termination as the reason provided to the claimant was for job abandonment. As the claimant was not terminated for poor performance prior to taking his allowed leave, he can not be considered to have been terminated for cause due to poor performance after the fact. I therefore find that the claimant is entitled to five weeks of termination pay based on his period of employment, July 11, 2006 to May 29, 2012.

10In assessing whether the substance of a complaint has been dealt with in another proceeding, the court stated in British Columbia (Workers Compensation Board) v. Figliola, 2011 SCC 52 ("Figliola") at para. 37 that a Tribunal should ask itself the following questions:

Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been "appropriately dealt with".

11The respondent submits that the questions in Figliola may all be answered in the affirmative. Even if I were to find that the ESO's investigation and decision constitute a proceeding under s.45.1, I do not agree that there was concurrent jurisdiction to decide the human rights issue nor that the previously decided legal issue was essentially the same as what is being complained of to the Tribunal.

12The ESO identified in her decision that the following were the "standards at issue" in the applicant's ESA claim: "1. Termination Pay" and "2. Leaves of Absence (Pregnancy, Parental...)"

13With respect to the first issue, "Termination Pay", the ESO addressed the narrow issue of whether the applicant had been terminated for cause due to poor performance or to the abandonment of his position. The issue of whether a reason for the termination was related to the applicant's family status was not before her. She found that the applicant had not been terminated for cause due to poor performance or due to the abandonment of his position, but she did not make any finding as to whether the applicant's family status factored into the respondent's decision to terminate.

14With respect to the second issue, "Leaves of Absence", in finding that s.53 of the ESA was "not applicable" to the claim before her, the ESO essentially declined to take jurisdiction over that part of the applicant's ESA claim that appears to overlap with the human rights issue before the Tribunal: the respondent's refusal to reinstate the applicant after his parental leave of one year. The allegation in the Application that the refusal is related to the applicant's family status was simply not before the ESO because the applicant did not assert his right to reinstatement after 37 weeks. I therefore do not agree with the respondent that the three part test provided in Figliola has been met. In my view, the ESA proceeding did not appropriately deal with the substance of the Application.

Order

15The respondent's request to dismiss the Application under s.45.1 is denied.

Direction

16The Application shall continue to be processed at the Tribunal. The applicant is willing to try mediation. Within 15 days, the respondent is directed to indicate whether it also is willing.