Zoran Vasileski v. Canadian Union of Public Employees, Local 5167, 2014 HRTO 469

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zoran Vasileski Applicant

-and-

Canadian Union of Public Employees, Local 5167 Respondent

DECISION

Adjudicator: Paul Aterman
Date: April 4, 2014 Citation: 2014 HRTO 469 Indexed as: Vasileski v. Canadian Union of Public Employees, Local 5167

APPEARANCES

Zoran Vasileski, Applicant Self-represented

Canadian Union of Public Employees, Local 5167, Respondent Elizabeth Nurse, Representative

1This Application alleges that the respondent discriminated against the applicant by refusing to proceed with a grievance that it had filed on his behalf against his former employer. He maintains that this was a reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) for having exercised his human rights.

2A summary hearing was held by teleconference on April 1, 2014 to determine whether the Application has a reasonable prospect of success. For the reasons which follow I conclude that it does not and it is therefore dismissed.

background

3The applicant was employed on a probationary basis by the Corporation of the City of Hamilton, Ontario Works Section from January 30, 2012 to April 2, 2012. He was terminated because the employer decided, based on its observations of his conduct with clients, that he was not a good fit for the job.

4The applicant was a member of the respondent union and it grieved his termination on April 27, 2012. On April 30, 2012 the applicant also filed an Application with this Tribunal (2012-11423-I) alleging discrimination by the employer and certain personal respondents who work for the employer.

5At the second step of the grievance process the union sought an explanation from the employer as to why the applicant was terminated. The employer provided its reasons and the union started its own inquiries regarding the applicant’s interactions with clients. The union maintains that, after looking into the circumstances surrounding the termination, it came to the conclusion that the grievance had little prospect of success. Nonetheless, it took the grievance to mediation with the twin objectives of turning the applicant’s termination into a resignation and obtaining some severance monies for the applicant.

6The union maintains that at the November 20, 2012 mediation the employer took the position that it would only consider a resolution if it entailed withdrawals of both the grievance and the Application before the Tribunal. When the mediator communicated this to the applicant, he refused to withdraw the Application. The mediator concluded the mediation because there was no prospect of finding a resolution.

7The union maintains that, after the mediation ended, its representative explained to the applicant that the question of whether the grievance would proceed would be decided by its grievance committee. He also told the applicant that he would recommend to the committee that the grievance be withdrawn as it would likely not succeed.

8The applicant’s account diverges from the union’s in that he claims that as soon as he refused to withdraw his Application, and before the mediation ended, the union representative announced that the grievance would be withdrawn, not that this would be put to the grievance committee for decision. The applicant also disagrees profoundly with the union’s judgement that his grievance would not likely succeed.

9The applicant then filed the present Application on July 23, 2013. He maintains that there was no basis for his termination, and that the union failed to advance his claim that his termination be set aside. When he refused to go along with the preference of both the union and the employer that he withdraw the Application before the Tribunal in order to settle all outstanding matters, the union – acceding, he believes, to the interests of the employer – withdrew his grievance. He alleges the union’s action was a reprisal for exercising his rights under the Code by pursuing an Application against the employer.

analysis

10Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

11In order to prove reprisal, an applicant must establish that the respondent engaged in an action, or threat, which was intended as retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate.

12I assume for the purposes of this Decision that the union’s representative announced at the mediation that the grievance would be withdrawn rather than submitting this to the grievance committee for consideration.

13The applicant repeatedly asserted during the hearing that the employer and the union were colluding in trying to turn the applicant’s termination into a resignation. I accept that he has a firm belief that this is so, but he cannot point to any evidence that supports his belief. He stated that this is a conclusion that must be drawn from the fact that the union did not fight to set aside his termination and have him reinstated. Instead it sought to have his termination turned into a resignation. However, that is not evidence that the union and the employer acted in concert, or even had any common interest in the outcome of the mediation.

14This is because there is no evidence as to whether the employer was in fact prepared to settle upon those terms or on any terms. There is only evidence that the employer would not even consider settlement unless it entailed a resolution of both the grievance and the Application before the Tribunal.

15The applicant’s contention that the union’s refusal to proceed with his grievance is a reprisal is also not supported by any evidence that he has or can obtain. He maintains that it is the only appropriate conclusion to draw from the union’s reaction to his refusal to withdraw his Application. This is the applicant’s interpretation of the reasons that underlie the union’s action.

16As is noted in Nyonzima v. Service Employees International Union, Local 1, 2010 HRTO 1438 at para. 18, absent a common interest between the union and the employer, the applicant would have to establish that the union intended to retaliate against him for bringing an Application against another, unrelated party.

17Here the Application names the applicant’s former employer and two of its employees as respondents. The union is not named as a party and the applicant cannot point to any common interest that the union and the employer share in the outcome of the Application. Without any evidence to support his belief, his assertions about the union’s motive for withdrawing the grievance do not provide a reasonable basis for drawing an inference that the union’s action would constitute reprisal under the Code. In light of this I conclude that his Application has no reasonable prospect of success.

order

18The Application is dismissed.