Witkowicz v. University Health Network, 2014 HRTO 1650

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pawel Edward Witkowicz Applicant

-and-

University Health Network Respondent

-and-

Canadian Union of Public Employees and its Local 1156 Intervenor

DECISION

Adjudicator: Maureen Doyle Date: November 13, 2014 Citation: 2014 HRTO 1650 Indexed as: Witkowicz v. University Health Network

APPEARANCES

Pawel Edward Witkowicz, Applicant Self-represented

University Network, Respondent Jacqueline Silvera, Representative

Canadian Union of Public Employees and its Local 1156, Intervenor Devon Paul, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant seeks financial compensation for lost wages from the time of his dismissal from work and “any other HOOP benefits belonging to me”. He also seeks reinstatement of his employment.

2The respondent denies that it has discriminated against the applicant contrary to the Code and also submits that the Application should be dismissed pursuant to section 45.1 of the Code, as it has been appropriately dealt with in a previous proceeding.

3A preliminary hearing was held in respect of the respondent’s request that the Application be dismissed on the basis of section 45.1.

DECISION

4This Application is dismissed pursuant to s. 45.1 of the Code.

BACKGROUND

5There is no dispute that the applicant was employed by the respondent hospital, commencing in 1993. The applicant was suspended for five days in June 2012, and his union filed a grievance on his behalf. The applicant indicates that he had a relapse of his problems with alcohol in 2011 and in June 2012, he asked his union for assistance with what he termed his “serious drinking problem”.

6There is no dispute that for the second time since he began his employment at the hospital, the respondent sent the applicant for a program of rehabilitation for his alcohol abuse, in June 2012, but when he returned to work he continued to have problems with absences from work.

7It is agreed that on September 6, 2012, the applicant’s employment was terminated.

8The applicant’s union filed grievances regarding the suspension and termination on his behalf, and the matters proceeded to mediation/arbitration. The grievance dated September 11, 2012, regarding the termination of the applicant’s employment, stated in part as follows:

The Termination dated September 6, 2012 was without just cause. The Ontario Human Rights Code based on disability was violated and any other relevant article in the Collective Agreement…

…Pawel should be reinstated immediately without loss wages, benefits and seniority and anything to make the grievor whole including any accommodation that is required and anything else deemed appropriate by an arbitrator.

9Following negotiations on November 23, 2012, the mediator/arbitrator issued a consent order with respect to both grievances. The respondent and the Canadian Union of Public Employees and its Local 1156 (the “union”) submit that the order reflects a settlement reached between the union and the respondent, to which the applicant agreed. Among other things, the terms of settlement included a “nominal reinstatement” of the applicant for 60 days in order to permit him to apply for early retirement, and stated that he would not be permanently reinstated. It also provided for a lump sum payment of $10,000 to the applicant within 30 days. It also stated that the respondent would “provide a letter confirming the length of his employment until the date of his retirement, and the position held, and making no adverse statements”. It indicated that the arbitrator/mediator would remain seized of the issue until all terms and conditions were fully implemented. It also stated:

These terms of settlement will constitute a full and final settlement of all issues, and grievances pertaining to the Grievor’s employment with the Employer.

10There is no dispute that the terms of the above-noted order were fully implemented. There is no dispute that the applicant accepted the lump sum payment and has not returned the sum paid to him.

11At the preliminary hearing into this matter, the applicant testified that he went to the mediation/arbitration on November 23, 2012, with a long-time friend who had been helping him with his addiction. He testified that he was “in very bad condition” and was “very low”. He testified that he was “not sober”, and that he was using valium and alcohol during the meeting. He testified that he told Mr. Calvin Campbell, president of his union local, and Mr. Andy Roberts, national servicing representative of his union, that he was really tired that day and he believes that it was obvious that he had been drinking. He testified that he believes when he said he was really tired, others should have understood him to mean that he was drunk. He testified that Mr. Campbell offered him some gum because he smelled alcohol on his breath. The applicant testified that he thought the meeting was about his recovery, and whether the hospital would give him time to recover. He also testified that he knew the union had filed a grievance on his behalf and that at the meeting they would be discussing his discipline and termination. He testified that the only person he spoke with that day was Mr. Andy Roberts, who told him that the hospital would give him money to “go and prove himself”, and that if he came back after two or three months of sobriety, they could negotiate a return to work with the hospital.

12The applicant testified that the respondent had previously sent him to a rehabilitation program which he had liked, but he did not believe it lasted long enough. He testified that he would not be surprised if the respondent’s witnesses would say that he had indicated on November 23, 2012, that he did not want to return to the program. He testified that he is not 100% sure why he did not want to go back, that he was still abusing alcohol at the time and did not have a clear mind, and that his doctor said he needed a minimum three-month program.

13He testified that Mr. Roberts left the room several times to speak with the respondent, and that each time he came back, he told the applicant that the hospital would pay him some money, and that was the only option. He later testified that he also saw and spoke with Mr. Campbell. He testified that he saw some managers in the hall, but that he did not see or speak with the mediator/arbitrator. He later testified that he recalled the mediator/arbitrator and the union officials telling him that the only help he would get from the respondent was money to go and deal with his problem himself. He testified that he “did not like the deal” but had no choice. He testified that initially the respondent was only willing to pay him $5,000, but that Mr. Roberts left the room and returned later, saying that the respondent had agreed to pay $10,000, but that that would be as high as they would go. He testified that he did not understand that he would not be getting his job back. When asked why he thought the respondent was willing to pay him $10,000, he testified that he did not really recall what he thought. He later testified that he thought the money was to pay for his shelter. He testified that he believed the respondent was giving him a letter of employment so that he could go to Employment Insurance to help him get employment or sick benefits. He testified that he “took the deal” and felt that the union could negotiate later for him to return to work. He testified that he signed “some papers” on November 23, 2012, but that he did not read the papers he signed. He testified that he did not understand what “full and final settlement” meant, that the document was not read to him and that he did not read the document. He testified that he was told it was to receive the $10,000 for help. He testified that he is currently in receipt of his pension.

14The respondent called Gabrielle Streeter, a certified occupational health nurse and the respondent’s senior disability case coordinator, as its witness. She attended at the mediation/arbitration on November 23, 2012. She testified that she recalled the mediator/arbitrator coming into the room to speak with the respondent’s representatives, who told the mediator that if the applicant wanted to remain employed, he would have to go back into treatment. She testified that the mediator/arbitrator advised the respondent’s representatives that the applicant did not want to do that.

15The respondent also called Veronique Buntin, its program manager on the continuing health care unit, as a witness. She was in attendance at the November 23, 2012 mediation/arbitration. She testified that she was in a room with other representatives from the respondent, but that she saw the applicant in passing in the hallway. She testified that he looked “very well put together, clean and presentable”. She testified that she understood that he had accepted the offer of settlement and that he would submit his papers to retire.

16Testimony was also provided by Mr. Campbell from the union local. He testified that he was very familiar with the applicant, as they had worked together for a number of years, and that he had also intervened and represented the applicant with respect to his attendance problems since approximately 2011. He testified that he had several long conversations with the applicant leading up to the November 23, 2012 mediation/arbitration, both about his suspension and his termination. He testified that he spent a good deal of time on the telephone with the applicant, and that the applicant told him he had nothing and he assured the applicant that the union was doing the best it could for him. He testified that he told the applicant to meet him at the respondent’s premises about 9-9:30 that morning so they could talk and relax prior to meeting with the employer. He testified that he had known the applicant for a long time and that he had intervened when the applicant was at work and was not acting like himself, but that on November 23, 2012, he thought that the applicant looked “well put together”, he was smiling, and generally looked much better than he had seen him in the last several weeks. When asked, he testified that when someone says they are very tired, he understands them to be saying that they are working hard, but that he would not understand the applicant to be telling him that he was drunk.

17He testified that the union local vice president and recording secretary were also in attendance on November 23, 2012, and that when Mr. Roberts arrived at about 9:45, they all went upstairs where they were assigned a room. He testified that he and Mr. Roberts sat down with the applicant to discuss the pros and cons of the mediation process and what to expect from the process. He testified that Mr. Roberts asked the applicant whether he wanted his job back or if he was interested in a “package”. He testified that the applicant asked how much the package would be and that he and Mr. Roberts advised that they could not yet say, and that this would have to be discussed through the mediation. He testified that Mr. Roberts asked the applicant if he was able to return to work, but that the applicant did not provide a “straight answer”, saying that he was having a rough time and was living out of his car. He testified that Mr. Roberts advised that he was there to see if he could get the applicant back to work, and get him back into the rehabilitation program. He testified that Mr. Roberts advised the applicant that if the mediation was not successful, the matter would proceed to arbitration, but a date for arbitration would likely be 6 to 12 months away. He testified that the applicant stated he could not survive that long and so he and Mr. Roberts asked again if he was more interested in a package than in returning to work. He testified that the applicant continued talking about needing his own place, to be more settled. He testified that they discussed the fact that the applicant had about 24 years of service with the respondent and that they could discuss a cash package. He testified that they talked about that at length and that the applicant agreed. Mr. Campbell testified that back and forth negotiations occurred through the mediator/arbitrator regarding the amount the respondent was willing to pay, and that eventually the employer advised it would pay $10,000. He testified that he and Mr. Roberts asked the applicant if he was “ok with that” and he advised he was. He testified that Mr. Roberts went over the process with the applicant once more, explaining that if he agreed, the matter would be over, and that all grievances would be settled and he would receive a lump sum payment. He testified that the applicant stated he was fine with that if he could get his own place and a fresh start. He testified that the mediator/arbitrator was then asked to write the consent order reflecting those terms.

18Mr. Campbell identified the order referenced above, and stated that all read it and understood it on November 23, 2012. He testified that he and Mr. Roberts explained to the applicant that he would be reinstated for purposes of having access to his HOOP benefits. He testified that they also explained that the respondent would write him a letter, saying how long he worked for it, in case he had to go to find other employment. He testified that they stated again that if he agrees, the process is closed and will not proceed to arbitration, as it is settled.

19When advised that the applicant took the position that Mr. Roberts told him if he was clean and sober for a while, he would have a chance of getting his job back, Mr. Campbell testified that he did not hear that. He testified that the closest to such a discussion that he heard was that before the negotiations commenced, they told the applicant that if the respondent decided to take him back as an employee, it may impose restrictions on him and he would be required to participate in a rehabilitation program.

20Section 45.1 of the Code states as follows:

45.1 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.

21There was no dispute between the parties that grievance proceedings which can proceed to adjudication before an arbitrator, may be a proceeding under s. 45.1 of the Code. The above-referenced September 11, 2012 grievance regarding the applicant’s termination from employment raised the same facts and human rights issues as the applicant seeks to put before the Tribunal in this Application. The substance of this Application was part of the grievance, which was concluded by the November 23, 2012 consent order of the mediator/arbitrator, which came about following settlement discussions that same day.

22The remaining issue is whether the November 23, 2012 consent order has “appropriately” dealt with the matter.

23In essence, the applicant takes the position that the consent order has not appropriately dealt with the matter because it has its genesis in a settlement discussion and agreement which he did not understand. In his testimony, he indicated that he did not understand that the agreement included an agreement to end his employment at the respondent because he was under the influence of alcohol and because his union representatives did not explain the discussion and agreement to him. It was the evidence of Mr. Campbell that the applicant appeared to be in good condition and that he and Mr. Roberts explained the processes, the choices and the final settlement offer to the applicant in detail, and that the applicant agreed to accept the settlement offer.

24An often cited case in relation to assessing credibility of a witness’s testimony is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.). At pages 356-357, the British Columbia Court of Appeal stated:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

25I find that the applicant’s evidence regarding what occurred on November 23, 2012, was often inconsistent and vague and accordingly frequently unreliable. I note, for example, that he testified that he only spoke with Mr. Roberts that day, but later testified that he also spoke with Mr. Campbell. I note that he testified that he did not see or meet with the mediator/arbitrator, but that he later testified that he met with the mediator/arbitrator and that the mediator/arbitrator and Mr. Roberts explained to him that the only help he would get from the respondent was money to go and deal with his problem himself. He testified that he did not know what he thought the motivation was for the respondent’s agreement to pay him $10,000. His testimony regarding the reason why he refused to return to the rehabilitation program the employer had previously arranged for him was similarly vague. He testified that he was not sure why he had refused, indicated that he had not been thinking straight, and also referred to what he believed to be his doctor’s recommendation regarding the length of a program. He testified that he believed the union officials should have understood that he was inebriated when he told them he was “really tired”, but he could not explain why. The evidence of the other witnesses was straightforward and internally consistent. In these circumstances, where the applicant’s evidence differs from the evidence of the other witnesses, I prefer the evidence of the other witnesses.

26Accordingly, I find that the evidence does not establish on a balance of probabilities that the applicant was unable, due to alcohol, to appreciate the consequences of a decision on November 23, 2012 to settle his grievance. Further, I find that the union officials present explained the consequences and terms of the settlement agreement to him, including the fact that he was not to be permanently reinstated to the respondent’s employ. Further, I find that this is consistent with the fact that the agreement included a provision in order for the applicant to access his retirement benefits. Significantly, the applicant himself has testified that the mediator/arbitrator met with him to advise that the only thing the respondent would give him was money, prior to the issuance of the consent order.

27In his testimony, the applicant indicated that he did not like the offer, but that he accepted it.

28The applicant has received the benefit of the settlement agreement, accepting both the lump sum payment and access to his retirement benefits following the “nominal reinstatement” of his employment status.

29In circumstances where I have found that the evidence does not establish an inability to understand the settlement discussions and agreement, and I have found that the terms of the settlement were explained to the applicant, and where I have found that he accepted the terms of the settlement, I find that the grievance proceedings which after settlement negotiations ended with the above-noted consent order, appropriately dealt with the substance of this Application.

30The Application is dismissed pursuant to s. 45.1 of the Code.