Frank Czajkowski v. City of Hamilton, 2013 HRTO 880

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Czajkowski Applicant

-and-

City of Hamilton Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle Date: May 22, 2013 Citation: 2013 HRTO 880 Indexed as: Czajkowski v. Hamilton (City)

WRITTEN SUBMISSIONS

Frank Czajkowski, Applicant Self-represented

City of Hamilton, Respondent Daryn Jeffries, Counsel

1This is an Application filed on April 4, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of related grievance proceedings.

2The applicant indicates in the Application that the facts of the Application are part of union grievance proceedings that are still in progress, and encloses a copy of the grievances filed on his behalf by his union, Canadian Union of Public Employees Local 5167 (the “union”).

3The applicant alleges that he has been discriminated against in employment because of his disability and he also alleges reprisal. He alleges that he was discriminated against when he was disciplined for refusing to perform work which he asserts was outside his medical restrictions. He was disciplined for his failures to attend at work and his union filed a grievance in on his behalf. One grievance dated June 12, 2013, alleges that the respondent employer did not act in accordance with the Code, seeks “lost seniority and wages or other loss of benefits” and also seeks accommodation for the applicant. The other grievance, also dated June 12, 2013, alleges that the employer violated the “Discipline” article of the collective agreement, alleges that the applicant’s supervisor “sent [him] home and told him not to come back until he could do the job” and seeks an award of lost seniority and wages or other lost benefits, as well as accommodation for the applicant.

4The applicant also states that his employment with the respondent was terminated on February 7, 2013, and that “Exact information in regards to termination has yet to come forward but may be related to this application”.

5The respondent submits that this matter should be deferred pending the completion of the grievance process. It further advises that the applicant’s union has filed a grievance on his behalf with respect to his termination. It has not provided a copy of that grievance, but it indicates that the parties have agreed to deal also with the above-two cited grievances at the arbitration of the termination grievance, which is scheduled to commence June 17, 2013. It submits that the factual and legal issues in dispute at both the grievance proceedings and this Application are the same or significantly overlap and submit that it is appropriate to defer this matter until the completion of the grievance proceedings.

6The applicant submits that this Application should not be deferred, as he is not satisfied with the representation he has received from his union. He indicates that he is currently fighting his third termination by the respondent and that he does not feel he has received the best representation possible from the union. He also states that he believes evidence was withheld at the arbitration of his second termination grievance, and that this constituted misrepresentation.

7The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

8The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

9The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

10In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. I am satisfied that the concerns the applicant raises about the Union’s representation with respect to his grievance do not justify a departure from the Tribunal’s normal approach. The matter is still live and the grievance process has not concluded. But if the applicant believes, on conclusion of the process, that his human rights issues have not been adequately addressed, he may ask to have his Application brought back on before the Tribunal.

11The Application will therefore be deferred pending the completion of the grievance process.

12The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.