Krzysztof Ratajczak v. Lambton Generating Station and Power Workers’ Union, 2013 HRTO 156

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Krzysztof Ratajczak

Applicant

-and-

Lambton Generating Station and Power Workers’ Union

Respondents

DECISION

Adjudicator: Mary Truemner

Date: January 29, 2013

Citation: 2013 HRTO 156

Indexed as: Ratajczak v. Lambton Generating Station

APPEARANCES

Krzysztof Ratajczak, Applicant

Christian Ratajczak, Representative

Lambton Generating Station, Respondent

Helen Daniel, Counsel

Power Workers’ Union, Respondent

Don Eady, Counsel

Introduction

1This is an Application filed on January 11, 2012 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 ancestry and place of origin.

2The applicant was hired to work at the Lambton Generating Station (“LGS”) in 1993 as a labourer. In 2005, he applied for a position of service worker at LGS, but discovered in 2006 that he was unsuccessful, and that the positions had been offered and accepted by other candidates. He alleges that one of the reasons for being refused a service worker position was related to a perceived lack of English language skills, and another was the perception that he lacked a secondary school diploma. In 2007, after the applicant proved that he did have a secondary school diploma, the LGS placed him in the position of service worker.

3The applicant also alleges that he was placed in an unfair wage structure as a service worker in 2007. He alleges that he should have been receiving better wages as an employee hired prior to 2001. He delayed expressing his disagreement with his pay directly to his employer because he thought that the Power Workers’ Union (“the union”) would sort out the wage problem, but by 2012, he felt that it was obvious he himself would have to fight the allegedly unfair wages he had been receiving for years, and he filed this Application at the Tribunal.

4The Tribunal issued a Case Assessment Direction (“CAD”) and noted that the allegations of discrimination appeared to be untimely because the Application was filed more than one year after the alleged discrimination. The CAD also noted that the applicant may not be able to prove a link between the grounds alleged and the respondents’ actions, and that there may be no reasonable prospect of the allegations succeeding. The Tribunal therefore directed that the applicant address these problems at a summary hearing.

REFUSAL IN 2005 OF SERVICE WORKER POSITION

5Having reviewed the submissions of the applicant, and having heard the arguments of the parties, I find that the allegation of discrimination on the basis of the refusal of the 2005 service worker position is out of time. I therefore dismiss it without addressing whether the applicant might be able to link the refusal with the Code grounds he cites.

Reasons for dismissing for delay

6Section 34(1) of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any of the respondents. To show that a delay was incurred in good faith, the applicant must provide a reasonable explanation for his failure to pursue his rights under the Code in a timely manner.

7The Application states that the applicant contacted a union steward after the applicant obtained the position of service worker in 2007, and asked for assistance in persuading LGS that he should have been compensated as a service worker back to the time that he made the application for the position in 2005. It appears that the applicant spent over five years in trying through the union to negotiate with LGS a change to his rate of pay. The only justification for the delay provided by the applicant was that he was hopeful that his negotiations would retroactively address the difference in pay between what he would have received had he been granted the service worker position that he applied for in 2005, and what he was actually paid. He was essentially negotiating a remedy for an allegedly discriminatory refusal of his job application for the service worker position.

8The protracted negotiations that the applicant claims occurred covered approximately 6 years before the applicant filed the Application at the Tribunal. This is too long a period of negotiations to substantiate good faith. By 2006, the applicant knew that his application for the service worker position submitted in 2005 had been refused, and by 2006, he understood the reasons to be discriminatory. Besides, this Tribunal has repeatedly held that persons who feel their rights have been violated are expected to file an application within the one-year time limit specified in the Code, even if this means that they are seeking redress from two different entities or waiting for the result of an internal investigation: see SB v Toronto (City), 2012 HRTO 2018; Agyei-Abankwa v. University of Windsor, 2012 HRTO 92; Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670; Poole v. Trent University, 2011 HRTO 2086; and Foley v. CAW-Canada Local 222, 2011 HRTO 1224.

9The allegation that LGS’ refusal of the applicant’s 2005 application was discriminatory is dismissed for delay.

ALLEGEDLY UNFAIR PAY

10Having reviewed the submissions of the applicant, and having heard the arguments of the parties, I find that there is no reasonable prospect for the applicant to link his place of origin and ancestry with the service worker rate of pay he was given. I therefore dismiss the allegation of discrimination on the basis of an unfair wage, and there is no need for me to address whether this part of his Application is out of time.

Reasons for finding wage difference has no reasonable prospect of success

11Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

12Furthermore, in Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

13The applicant argued that the respondents might have made a mistake in setting his service worker wage at a rate he believes is lower than it should have been, given his 1992 start date with LGS, but they did not feel that they had to correct the mistake. The applicant alleges that the respondents felt they could exploit him as an employee whose English was not fluent because of his place of origin, Poland. He also feels that his ancestry and place of origin makes him more trusting and patient than people from other groups, particularly the group of people who are from Canada.

14The applicant did not point to any evidence that his ancestry and place of origin were connected to a reason for the respondents not increasing his rate of pay, and therefore the allegation that the applicant’s wage is discriminatory is dismissed as having no reasonable prospect of success. The applicant’s submissions and his filed documents are not perfectly clear, but I would also dismiss the allegation if it were framed as a seemingly neutral practice (to only increase wages of employees who are not patient and who challenge their wages) that disproportionately impacts or adversely affects members of groups who are identified as having a Polish ancestry or Poland as their place of origin. The applicant did not point to any evidence that might establish that any such a practice would exclude or disproportionately affect such groups.

ORDER

15The Application is dismissed in its entirety.