Brian Schutt v. North Shore Industrial Wheel, 2013 HRTO 2091

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Schutt

Applicant

-and-

North Shore Industrial Wheel

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: December 17, 2013

Citation: 2013 HRTO 2091

Indexed as: Schutt v. North Shore Industrial Wheel

WRITTEN SUBMISSIONS

Brian Schutt, Applicant

Lori Mishibinijima, Counsel

North Shore Industrial Wheel, Respondent

Claude St. Louis, Representative

Introduction

1This is an Application filed on November 15, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination because of disability, with respect to employment. The applicant’s employment was terminated by the respondent on November 12, 2012. The respondent filed a Request for Order During Proceedings (“the Request”) to have the Application dismissed under s.45.1 of the Code, arguing that it has already been appropriately dealt with by a proceeding and decision made by an Employment Standards Officer (“ESO”) under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). For the reasons below, this Interim Decision denies the Request.

background

2The Application alleges that throughout 2012, the applicant required time away from work on certain days, full and partial, for several reasons, including medical appointments, sickness and insulin injections that he felt needed to be done at home. The applicant alleges that he was disciplined for some of these absences, which he argues are related to disability. The applicant alleges that the respondent did not accommodate his need for 1) a separate area at work to give himself insulin shots; and 2) time off for medical appointments. His Application also alleges that the applicant’s employment was terminated because he “stood up for [himself]” in terms of requiring time off to deal with needs related to his disability.

3The applicant also filed a claim under the ESA at the Ministry of Labour, alleging that he was reprised against for exercising or attempting to exercise his right to “personal emergency leave”, a leave which addresses “personal illness, injury or medical emergency.” (See s.50(1) of the ESA). In his claim, the applicant also alleged that he had entitlements in termination pay and severance pay in addition to what the respondent provided at the time it terminated his employment.

reasons

4Section 45.1 of the Code provides:

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.

5Section 45.1 of the Code requires a two-part analysis: (1) was there another “proceeding” and (2) if so, “did it appropriately deal with the substance of the Application”.

6The Tribunal has held that a claim determined by an ESO constitutes a “proceeding” within the meaning of the Code. See, Little v. TeleTech Canada, 2009 HRTO 1763; Poirier v. MacLean Engineering & Marketing, 2010 HRTO 1672; Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443; and Carrigan v. 2037939 Ontario Inc., 2013 HRTO 578.

7The critical issue to be decided is whether the ESA proceeding, “appropriately dealt with the substance of the Application”.

Whether the ESA proceeding appropriately dealt with allegations of failure to accommodate

8I have reviewed the ESO’s “Reasons for Decision” released April 3, 2013, and I agree with the applicant’s submissions that argue that the ESO did not deal at all with the allegations about the applicant not having an injection site on the work premises; therefore, I refuse to dismiss under s.45.1 the allegations with respect to the respondent’s alleged failure to provide a place for the applicant to inject insulin at the workplace.

Whether the ESA proceeding appropriately dealt with allegations of reprisal

9The reprisal issue before the ESO was whether the respondent infringed s.74 of the ESA by reprising against the applicant for exercising his right to be absent for 10 days or less as permitted under s.50 of the ESA. The relevant parts of the relevant subsection of s. 74 state:

s.74(1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a) because the employee,

(i) asks the employer to comply with this Act and the regulations,

(ii) makes inquiries about his or her rights under this Act,…

(iv) exercises or attempts to exercise a right under this Act,…

10In her Reasons for the Decision, the ESO states that the applicant’s claim under the ESA included allegations that “he was given a written warning for his attendance in using personal time off,” and “he was reprised against by being terminated for exercising or attempting to exercise his right to personal emergency leave.”

11After investigating the claim, the ESO found that the respondent provided written warning to the applicant as he had exceeded his entitlement to 10 days of personal emergency leave in a calendar year, the maximum number of days that s.50(5) of the ESA provides. The ESO’s Reasons state that the respondent claimed that the applicant had taken absences on 22 occasions which exceeded his entitlement of Personal Emergency Leave prior to receiving his written warning on July 19, 2012. The ESO’s Reasons state, “I find that this does not demonstrate that the employer was penalizing or threatening the claimant in any way. The claim that a reprisal occurred is denied.”

12It is clear that the ESO found that reprisal under the ESA did not occur for the reason that the discipline to the applicant (the warning letter) was with respect to leave in excess of 10 days. The obligation of an employer to accommodate an employee’s disability under the Code, however, extends beyond 10 days, and the ESO’s decision with respect to reprisal under the ESA does not preclude a finding under the Code that the respondent failed to accommodate the applicant’s disability-related absences that were in excess of 10 days. I therefore deny the Request to dismiss the allegation that the respondent reprised against the applicant by providing him with a written warning for disability-related absences in excess of the 10 days of absence allowed by the ESA.

13The paragraph immediately following the ESO’s finding that there was no reprisal under the ESA states, in its entirety:

The company experienced a decline in sales starting in September which resulted in the termination of the claimant’s employment. The employer considered the feedback received by a customer to select the claimant for termination when they were downsizing.

14The ESO appears to have found, then, that the applicant did not experience reprisal by termination for his 10 days of absence that the ESA protects, but she did not address the broader question about whether the applicant’s disability-related needs for time off in excess of 10 days was a factor in the termination. I therefore deny the Request to dismiss the allegation that the respondent reprised against the applicant by terminating his employment for disability-related absences in excess of the 10 days of absence allowed by the ESA.

next step

15The Tribunal will schedule a 2-day hearing.