Loconte v. Amalgamated Transit Union, Local 113, 2014 HRTO 1254

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosanna Loconte

Applicant

-and-

Amalgamated Transit Union, Local 113

Respondents

DECISION

Adjudicator: Paul Aterman

Date: August 25, 2014

Citation: 2014 HRTO 1254

Indexed as: Loconte v. Amalgamated Transit Union, Local 113

APPEARANCES

Rosanna Loconte, Applicant

Self-represented

Toronto Transit Commission, Respondent

Patricia Matusiak, Counsel

Amalgamated Transit Union, Local 113, Respondent

Carlo Di Giovanni, Counsel

Introduction

1This Application originally alleged discrimination in employment on the grounds of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) by the applicant’s former employer, the Toronto Transit Commission (“TTC”).

2The TTC filed a Request for Order During Proceedings, asking that the Application be dismissed on the basis of there being no reasonable prospect of success or deferred because the applicant had filed an action in court arising out of the same factual background as the Application.

3The applicant responded to this request by asking to change the respondent from the TTC to the Amalgamated Transit Union, Local 113 (the union). Implicit in this request is that the social ground of the Application would also be changed from employment to membership in a vocational association, as the applicant is a member of the union, not one of its employees. In this request, the applicant did not explain how the union may have discriminated against her.

4The Tribunal held a preliminary hearing by teleconference on August 19, 2014 to clarify and then determine the applicant’s request to remove the TTC as a respondent and to add the union instead. The purpose of the hearing was also to determine whether the Application has no reasonable prospect of success as against either the TTC or the union.

5During the teleconference the applicant advised that the civil action against the TTC had been withdrawn and all parties consented to removing the TTC as a respondent. Given the consent of all parties, the TTC is removed as a respondent.

6The remaining issues are whether the union should be added as a respondent and whether the Application should be dismissed as against the union. For the reasons which follow I determine that the union may be added as a respondent, but the Application has no reasonable prospect of success and should be dismissed.

allegations against the union

7The applicant was hired by the TTC as a subway operator on a probationary basis. During her probationary period she was disciplined for signal violations and dismissed. The union intervened successfully on her behalf, and in January of 2010 the discipline was modified from dismissal to a transfer to operating streetcars.

8In March of 2010 the applicant had an accident outside of work. She applied for and received Short Term Disability Benefits from March to September of 2011, and then Long Term Disability Benefits (“LTD”) from September of 2011 to the end of July 2012.

9The insurer of the benefit plan terminated her benefits because it found that she was not totally disabled and had actively misrepresented the extent of her disability. Following the grievance procedure described below, the TTC then terminated the applicant’s employment in October of 2012 for having misled it as to her disability.

10Because she had been off work due to her accident, the applicant had not finished her probationary period by the time of her termination. Under the collective agreement, a probationary employee who is terminated can have their grievance considered at the first two stages of the grievance procedure, but not beyond that.

11The union represented her at the initial meeting with management on August 31, 2012. When she could not continue the meeting with management because of how she was feeling, her union representative intervened on her behalf and the meeting ended. It resumed on September 24, 2012 and resulted in the TTC advising her that her employment was terminated.

12The union appealed her termination and again represented the applicant at a meeting with management on October 5, 2012. It advocated on her behalf, but the TTC maintained its decision. The union requested review of the grievance at the next level on a compassionate basis, but the TTC refused, citing the collective agreement’s limits on a probationary employee’s right of review.

13In the face of a decision to terminate the applicant’s employment, the union had negotiated an agreement with the TTC for the applicant to resign. The union advised the applicant to resign, but she refused.

analysis

14During the hearing I asked the applicant to explain when and how the union had discriminated against her on the basis of disability. She argued that the union’s conduct was discriminatory because union officials were not supportive of her efforts to remain employed with the TTC. Specifically, the union sent different representatives with her to the meetings with management in which her termination was discussed. In addition, in trying to get her to resign, the union was insensitive to her disability. She maintains that the union should have fought harder for her to return to work.

15In my view the applicant is unable to point to any evidence in her possession or that may be reasonably available to her that would support her theory that the union was acting in a discriminatory manner. The actions of the union appear to have been what I would expect a union to do on behalf of a probationary employee facing termination. The union represented her and advocated on her behalf at all the steps of the grievance process that were available to it, given the applicant’s probationary status. In addition, it tried to obtain a further level of review of the grievance on a compassionate basis. However, it was the TTC which refused to consider this option.

16When I asked the applicant what more she thought the union could have done, she indicated that it should have fought harder for her, but she did not explain how it could have been more effective. As to the connection between the union’s efforts and her disability, the applicant maintains that the union was indifferent to the fact that she was disabled, but she could not point to evidence that would support her impression of the attitude of union officers towards her, other than the fact that different officers accompanied her to the meetings with management.

17She believes that, given her disability, it would have been better for one union official to have remained on her case throughout. While that certainly may have been preferable from the applicant’s point of view, that decision alone could not amount to discrimination under the Code. First, there is no basis for concluding that the fact that different officers represented her at the meetings with management made any difference to the outcome of the grievance. Second, the applicant can point to no evidence that her disability was a factor in the union’s decision regarding who would be assigned to represent her.

18Regarding her view that the union pressured her to resign during the grievance process, the applicant relied on a copy of draft minutes of settlement between the TTC, the union and the applicant which stipulated that the applicant would resign her position. The agreement also set out that the TTC would respond to any inquiry from a future employer of the applicant simply by confirming the dates of her employment with the TTC.

19I interpret this document as an effort by the union to mitigate the effects of the TTC’s decision to end the applicant’s employment by turning it into a resignation as opposed to a termination. That reflects a common practice in such circumstances, where a union attempts to avoid the member having a gap in their resume or having to explain to a prospective employer that they were terminated from employment. I note that by the time the issue of resignation was raised, the applicant and the union had already been given clear notice of the TTC’s intention to terminate the applicant’s employment. That is why the minutes of settlement appear to be an attempt to mitigate the effect of the TTC’s termination decision.

20The applicant does not view the document the same way – in her view the union was not assisting her, but rather pressuring her to resign. Regardless of how the purpose of the document is interpreted, the applicant was not able to draw a link between the union’s suggestion that she resign and her disability. In other words, she could not point to any evidence that she had or could obtain that would support a conclusion that her disability was a factor in the union suggesting to her that she resign. In any case, she refused to go along with the suggestion and the minutes of settlement were never signed.

21At various points throughout the narrative portion of her Application the applicant suggests that the union officers who dealt with her were abrupt and dismissive of her concerns and that this indicates a discriminatory attitude on the part of the union. I explained to the applicant that I understood this to be her perspective, but that she needed to substantiate her belief with evidence, particularly in light of the fact that the documentary record demonstrates that the union followed every step that it could under the collective agreement to avoid her being terminated. The applicant could not point to any evidence that she could obtain that would support her perception of how the union treated her.

22Without any evidence to support her beliefs, the applicant’s assertions about the union’s handling of her grievance do not provide a reasonable basis for drawing an inference that the union’s action would constitute discrimination under the Code. In light of this, I conclude that her Application has no reasonable prospect of success.

order

23The Toronto Transit Commission is removed as a respondent. The Amalgamated Transit Union, Local 113 is added as a respondent.

24The Application has no reasonable prospect of success and is dismissed.