Human Rights Tribunal of Ontario
B E T W E E N:
Cosmina Bala Applicant
-and-
TRQSS, Inc. Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Date: October 10, 2014
Citation: 2014 HRTO 1527
Indexed as: Bala v. TRQSS, Inc.
APPEARANCES
Cosmina Bala, Applicant Self-represented
TRQSS, Inc., Respondent Anna Vannelli, Counsel
1The applicant was employed with the respondent as an operator since November 19, 2007 working the day shift. The applicant’s husband is employed with the respondent and also works the day shift.
2The applicant advised in January 2013, that she was anticipating having issues with childcare arrangements because her mother was becoming ill and could no longer look after the children.
3There appears to have been some discussions around that time period between the applicant and the respondent. The parties agree that the applicant was advised that she could not trade shifts with any temporary employees because they had to preserve those positions for the employees who were off on temporary/short-term absences. The applicant was also not successful in trading shifts with any other employees.
4The applicant was ill from March 14, 2013 until April 30, 2013. The applicant called in to advise on May 1, 2013 that she needed the day off as emergency leave because she could not make arrangements for her childcare. The applicant did not attend work on May 2 and 3, 2013. The applicant had a conversation with the respondent and was told that if she did not come in to work on May 6, 2013, that she would be considered to have resigned her employment. The respondent asserts that it advised the applicant that she could apply for a leave of absence on that day. The applicant did not attend work on May 6, 7 and 8, 2013. Pursuant to the employer’s Attendance Policy the applicant was deemed to have voluntarily resigned from her employment and letter informing her of this fact was sent on May 8, 2013.
5On May 10, 2013 the applicant filed a complaint pursuant to the Employment Standards Act, 2000 (the “ESA”) for the payment of her termination and severance pay. An Employment Standards Officer (“ESO”) was assigned to determine the complaint. On February 5, 2014, the ESO issued her decision in which she found that the applicant was not entitled to termination and severance pay because she had engaged in wilful neglect of duty. The applicant has not appealed this decision to the Ontario Labour Relations Board.
6The applicant filed this Application on January 22, 2014 alleging discrimination with respect to employment on the basis of family status. The respondent filed a Response in which it seeks the dismissal of the Application pursuant to section 45.1 of the Code because another proceeding has dealt with the substance of the Application.
7On April 8, 2014, the Tribunal issued a Case Assessment Direction which directed that a Summary Hearing would be held to determine whether the Application should be dismissed pursuant to section 45.1 of the Code and/or because it had no reasonable prospect of success.
Section 45.1
8Section 45.1 of the Code reads as follows:
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.
9The Tribunal has held that, in determining whether an Application ought to be dismissed pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with the substance of the Application”.
10Assuming without finding that the applicant’s claim for termination and severance pay that was determined by the ESO was a “proceeding” within the meaning of s.45.1 of the Code, I am not satisfied that the substance of the Application was “appropriately dealt with” in that proceeding.
11I have considered the Tribunal’s Decision in Nowlan v. World Meats Inc., 2013 HRTO 747, in which the Tribunal declined to dismiss that application pursuant to s. 45.1 even though the ESO had made a finding of wilful misconduct.
12Similarly, in this case, the sole issue before the ESO was whether the applicant was entitled to termination and severance pay pursuant to the ESA. I note, also that unlike the leave and reprisal related sections of the ESA an ESO does not have a broad remedial discretion to remedy an allegation that an employer has not paid the appropriate termination and severance pay amounts. Indeed, the ESO’s remedial powers are limited to calculating the amounts owed and is subject to a maximum cap of $10,000 dollars.
13In making this determination the ESO reviewed whether the applicant was disentitled to termination and severance pay under the ESA. The ESO examined the applicant’s workplace conduct and determined that the applicant had engaged in wilful neglect of duty. The ESO determined that the applicant was therefore disentitled from receiving termination and severance pay.
14In the present case, the ESO’s decision does not reference the Code, or any explicit principles of accommodation. There is no discussion of whether the respondent’s duty to accommodate was in fact triggered in January 2013 when the applicant advised the employer that she would be having difficulty with childcare issues. There is no discussion as to whether the respondent’s attendance policy in such circumstances had an adverse impact on the applicant. I am not prepared, in these circumstances, to find that the ESO’s decision addresses any human rights issues in the absence of any reference to the Code and/or any human rights principles.
15As such, in these circumstances the respondent’s Request to dismiss is denied because another proceeding has not appropriately dealt with the substance of the Application. Given this determination I need not address the issue of whether there was in fact a “proceeding”.
Reasonable Prospect of Success
16Having considered the matter I am not satisfied that the Application has no reasonable prospect of success. Pursuant to Rule 19.A.6, I am not required to provide any further reasons.
Order
17The Tribunal orders:
a. The respondent’s Request to dismiss pursuant to s. 45.1 of the Code is dismissed; and
b. The Application will continue to be processed by the Tribunal. If the respondent does not advise within 7 days of the date of this Interim Decision that they are willing to attend mediation, then the Tribunal will schedule a two day hearing in Windsor.
18I am not seized.
Dated at Toronto, this 10th day of October, 2014.
“Signed by”
Geneviève Debané
Vice-chair