HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hina Liaqat Applicant
-and-
Farooq Chaudhry Respondent
INTERIM DECISION
Adjudicator: Paul Aterman Date: April 5, 2013 Citation: 2013 HRTO 561 Indexed as: Liaqat v. Chaudhry
WRITTEN SUBMISSIONS
Farooq Chaudhry, Respondent
Denise Boyce, Counsel
Introduction
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 with respect to employment because of sexual solicitation.
2The allegations that the applicant makes in bringing this Application are that the respondent engaged in a pattern of unwelcome sexual conduct towards her over the course of the years that she worked at his restaurant franchise. In her Application she requests compensation for injury to dignity, feelings and self-respect, as well as compensation for wages and overtime that she alleges she worked but was not paid for. The respondent maintains that the applicant was an unreliable and deceitful employee who stole money from the franchise, and that her conduct ultimately led him to terminate her employment.
3When the respondent filed his Response, he included in it a Request to Dismiss the Application pursuant to s.45.1 of the Code on the grounds that a proceeding under the Employment Standards Act, 2000, S.O. 2000 c.41 had appropriately dealt with the substance of the Application. In an earlier Interim Decision (2013 HRTO 322), the Request was denied because although it was clear that proceedings under the Employment Standards Act were pending, there was nothing to indicate that a decision had yet been taken. The parties were directed to make submissions on whether the Application should be deferred until those proceedings were resolved.
4A decision has now been submitted to the Tribunal. The respondent has filed submissions, again requesting that the Application be dismissed, and arguing in the alternative that the Application should be deferred. Appended to the respondent’s submissions are the Reasons for Decision of an Employment Standards Officer. The applicant has not filed any submissions.
analysis
5The respondent repeats his argument, made in the earlier Request, that the applicant’s claim under the Employment Standards Act covers the same subject matter as this Application, and thus this Application should be dismissed. The respondent’s alternative argument that the Application should be deferred is unclear, because a decision has now been rendered in the employment standards matter, there is no pending appeal of that decision and there do not appear to be any other proceedings outstanding.
6In 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.”
7The officer’s reasons deal with the applicant’s claim for unpaid wages, overtime pay and termination pay. The reasons review the applicant’s working arrangements in 2011 and 2012, and focus on her hours and locations of work. The officer concludes that the applicant was owed money for unpaid wages and overtime.
8The officer’s reasons do not address any allegations of sexual harassment, and it is not clear whether the applicant raised any such allegations before the officer. The reasons mention the respondent’s allegation of theft, but make no clear findings as to whether theft occurred or not. The officer’s decision to award termination pay appears to be based on a conclusion that the employer failed to produce evidence to justify termination of the applicant’s employment for cause, as opposed to a positive finding that no theft occurred or any other positive finding with respect to the reason for termination.
9The employer volunteered to pay the applicant the amount assessed by the officer. As a result of this voluntary compliance, the officer decided it was unnecessary to issue an order.
10The narrative in support of this Application includes allegations that the respondent failed to pay the applicant a certain amount of wages and overtime. Those allegations have been addressed in the decision of the employment standards officer. That decision has not been appealed. I conclude from this that the decision of the officer has appropriately dealt with that aspect of this Application. However, those allegations are not the focus of this Application. The main allegations are ones of sexual solicitation. They are not addressed in any way in the decision of the employment standards officer. In light of this, I conclude that the allegations relating to sexual solicitation were not appropriately dealt with in those proceedings and can proceed before the Tribunal.
order
11This Application can proceed in part. The allegations of sexual solicitation have not been appropriately dealt with in the employment standards proceeding. Neither have any other allegations that the termination of the applicant’s employment was contrary to the Code. These allegations can therefore be heard by the Tribunal.
12To the extent that the applicant is seeking a remedy for unpaid wages or overtime as part of her Application, these issues have been appropriately dealt with in the employment standards proceedings and cannot proceed before the Tribunal.
13As the parties have indicated a willingness to try to resolve this Application through mediation, the Registrar is requested to schedule a date for mediation.
Dated at Toronto, this 5th day of April, 2013.
”signed by”
Paul Aterman Vice-chair