Brigid Browne v. Toronto Transit Commission and Amalgamated Transit Union Local 113, 2014 HRTO 554

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brigid Browne Applicant

-and-

Toronto Transit Commission and Amalgamated Transit Union Local 113 Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle Date: April 17, 2014 Citation: 2014 HRTO 554 Indexed as: Browne v. Toronto Transit Commission

APPEARANCES

Brigid Browne, Applicant Self-represented

Toronto Transit Commission, Respondent Michelle Dobranowski, Counsel

Amalgamated Transit Union, Local 113, Respondent Ian Fellows, Counsel

Introduction

1The applicant initially filed two Applications, 2011-10540-I and 2012-12853-I, in which she names the Toronto Transit Commission (“TTC”) as respondent and she filed a further Application, 2012-12854-I, in which she names the Amalgamated Transit Union, Local 113 as respondent (the “union”). In each Application, she alleged 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”).

2In an Interim Decision dated February 21, 2013, Browne v. Toronto Transit Commission, 2013 HRTO 288, the Tribunal noted significant overlap in the issues of fact and law before the Tribunal. Citing the public interest in avoiding a multiplicity of proceedings and noting no evidence that consolidation of the Applications would result in prejudice to any person, the Tribunal ordered that the three Applications be consolidated.

3The respondent Toronto Transit Commission filed a Request for a Summary Hearing in respect of File # 2012-12853-I.

4The respondent United Transit Workers Local 113 filed a Request for a Summary Hearing in respect of File # 2012-12854-I.

5On November 11, 2013, the Tribunal issued a Case Assessment Direction (CAD) granting the Requests for a Summary Hearing. The summary hearing took place by teleconference call and all parties participated.

6For the reasons that follow, I find that a portion of Application # 2012-12853-I should be dismissed as it has no reasonable prospect of success, and I find that a portion of that Application cannot be dismissed as having no reasonable prospect of success and it is continued in the Tribunal’s process.

7For the reasons that follow, I find that Application # 2012-12854-I, against the union, has no reasonable prospect of success, and it is dismissed.

ANALYSIS

Summary Hearings

8In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

9In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

Application to the Facts

10By way of background, in her first Application, File # 2011-10540-I, the applicant indicates that due to injury, she was unable to perform her regular duties as a bus driver. She alleges that the employer did not provide her with permanent modified work, including permanent work as a Reservationist at Wheel-Trans at the TTC.

11In its Response to File # 2011-10540-I, the TTC states that following the applicant’s injury it provided her with accommodated employment, including a temporary placement as a Reservationist in its Wheel-Trans department from February to June, 2009. It asserts that once it had been determined that the applicant’s impairment was permanent, she was referred to the TTC’s Special Placement Coordinator who has been working to assist her in locating a permanent position, and asserts that in the meantime, she has been performing some temporary work. It denies having discriminated against her on the basis of disability.

12In her second Application, File # 2012-12853-I, which was one of the subjects of the summary hearing and is one of the subjects of this decision, the applicant alleges that she was on sick leave and that she was denied a wage increase because she was not in a permanent position. She included a copy of a June 5, 2012 communication to employees from the Chief Executive Officer of the TTC in which he advises that due to an award granted by arbitration, ATU employees are to receive, retroactive to April 1, 2011, among other things, a wage increase of 2% in each year of the collective agreement. She also included a copy of her August 3, 2012 email to the “Special Placement Coordinator” in Human Resources at the TTC in which she states that she is to receive a raise from $28.57 per hour to $30.42 per hour. Additionally, she included his August 10, 2012 response in which he states “At present because you are not in a permanent job you will continue to receive $28.57/hour. When you are placed in a permanent job you will continue to be entitled to the wage of that job”.

13The applicant also alleges that her termination from employment was unjust. She alleges that “the sick form I handed in mysteriously had a change in the dates aiding in me being fired”. She states “I feel I was fired due to my injuries because I was never offered a permanent position and my injuries were a contributing factor to being let go”.

14In its Response to File # 2012-12853-I, with regard to the issue of payment of the wage increase to the applicant, in its Response, the TTC states that it “considered the applicant’s circumstances and determined that there was an error regarding the wage increases in relation to the applicant for the approximately 6.5 month period she worked in the Wheel Trans Reservationist position” and determined that she “ought to have been provided with the First Annual increase, retroactive to her January 30, 2012 start date in the Reservationist placement to March 31, 2012, and the Second Annual Increase, retroactive to April 1, 2012 on all hours paid, until her termination date”. It indicates that as the applicant did not work any hours in 2011 and was not paid by TTC for any hours in 2011, she was therefore not entitled to any retroactive wage increase for 2011.

15With respect to her allegation regarding the termination of her employment, the TTC states that though the applicant asserts that her employment was terminated in part due to her disability, she has not alleged that changes were made to her sick leave form for discriminatory reasons. It also asserts that the applicant was dismissed for just cause based on her own conduct, in particular, falsifying and altering her Sick Benefits Application form and submitting it as a true copy of information supplied by her doctor, a breach of trust in misleading management and violating her Conditions of Employment. The TTC asserts that the applicant booked off sick on August 1, 2012 and subsequently submitted a Sick Benefits Application form to Occupational Health at the TTC, indicating that she would return to work on August 8, 2012. It asserts that a staff person in the Occupational Health department reviewed the form, which is to be completed by a licensed medical practitioner, and suspected the return to work date had been altered from August 5, 2012 to August 8, 2012. It asserts that the staff person spoke with the applicant’s doctor regarding the form, and the doctor confirmed that what he had written was August 5, 2012. The Occupational Health staff person contacted management at the TTC advising them that the form had been altered. The TTC asserts that the first scheduled day of work for the applicant following August 5, 2012, was August 7, 2012, but that the applicant did not return to work that day. Rather, she returned to work on August 8, 2012. At that time, the TTC terminated her employment, for falsifying a sick benefit claim, breach of trust and violation of her conditions of employment. The TTC asserts that at the termination meeting, the applicant failed to acknowledge having altered the form and suggested that one of her children may have altered the form before they dropped it off at the TTC for her.

16The TTC submits that it has not contravened the Code and that in any case the applicant has not suffered any damages.

17In her Application against the union, among other things, the applicant alleges that the union did not assist her in obtaining a permanent modified work assignment due to the fact that she was not the most senior applicant, she alleges that the elevator which she needed to use at the workplace was always out of order, she alleges that she did not receive a wage increase she believes was due to her pursuant to the collective agreement, because she was not working in a permanent position, and she also alleges that the union has failed to process her grievance regarding termination in a timely fashion. By way of remedy, she seeks financial compensation.

18In its Response, the union states that it understands that the TTC attempted to place the applicant in a number of different temporary positions while the Workplace Safety and Insurance Board (WSIB) assessed her restrictions, and it states that the TTC’s willingness to accommodate the applicant satisfied the union. It also indicates that it is aware that the TTC placed the applicant in a temporary position as a Reservationist for Wheel Trans from February to June 2009. It indicates that it understands that the WSIB provided a report to the TTC on June 3, 2010, advising that the applicant had a permanent disability which would permit her to perform sedentary duties only. It asserts that accordingly, in June 2010, the TTC and the union commenced a search for a permanent position for the applicant that would meet her physical requirements.

19The union asserts that employees are required to “bid” for vacancies or place a “pre-bid” for positions in which they would be interested, should a vacancy arise. The union submits that the TTC considers education, whether a job bidder has a permanent medical restriction that would prevent them from performing the essential tasks of the job, whether the employee has passed practical and/or aptitude tests to qualify for the position, and seniority. The union states that these considerations foreclosed the applicant’s eligibility for a number of permanent positions. The union submits that prior to March 2011 if the TTC requested that it agree to elevate the seniority of a bargaining unit member in order to facilitate accommodation, it “generally did so”. It also submits that on or about March 30, 2011 the union and the TTC agreed to elevate the seniority of bargaining unit members with permanent medical restrictions in order to facilitate accommodation efforts and finding suitable permanent positions for affected members. It asserts that at that time, it elevated the applicant’s seniority and that no further requests were received, from either the applicant or the TTC, that it further elevate her seniority. It submits that the applicant bid on vacancies for Wheel-Trans Reservationist, but that on one occasion, a more senior bargaining unit member, also with permanent medical restrictions, was awarded the position. They assert that there was a subsequent vacancy where the applicant was not the successful candidate, due to her failure to achieve the required standard on the pre-test for the position. It asserts that it attempted to persuade the employer to allow the applicant to re-write the test again sooner than the TTC policy would normally allow, but the TTC did not agree to this. It asserts that subsequently, the TTC placed the applicant in a temporary position from January 30 to July 28, 2012 as a Reservationist for Wheel-Trans with a view to permitting her to develop the skills necessary to pass the pre-test for the permanent position. It submits that the temporary assignment was extended until December 31, 2012, but that the applicant’s employment was terminated on or about August 8, 2012. It submits that it was satisfied with the TTC’s efforts to accommodate the applicant.

20With respect to the applicant’s claim for a wage increase, the union states that it understands that the TTC “red-circles” the wages of individuals in the temporary work placement program and that this is not a matter addressed in the collective agreement. It submits that the applicant never requested that a grievance be filed on her behalf in respect of her claim for a wage increase. It submits that it subsequently filed a policy grievance on behalf of all bargaining unit members who did not receive the wage increase due to the TTC’s policy of red-circling the salary of individuals in the temporary work placement program. It submits that it specifically plead that this policy is contrary to the Code.

21With respect to the applicant’s claim that the elevators were not functioning, the union submits that it was unaware of this as a recurring problem, but that on one occasion, a shop steward was present when the elevator was stuck and inquired of the applicant whether she was alright. The union submits that the applicant laughed and said she was ok, she never requested that a grievance be filed on her behalf regarding the elevator or an unsafe work environment, and submits that it considered the matter resolved.

22The union submits that it filed a grievance on the applicant’s behalf regarding the termination of her employment. It submits that it represented her and made submissions on her behalf through the grievance process and that it continued to act on her behalf at Step 4 of the grievance procedure, which is mediation. It submits that the mediator was not available within the 21 day timeframe contemplated by the collective agreement, and that the parties waived strict compliance with the collective agreement timeframes, and scheduled the mediation as soon as possible thereafter. It notes that mediation was unsuccessful. It submits that following mediation, the Executive Board met to decide whether to refer the applicant’s grievance to arbitration. It submits that the applicant was invited to attend the meeting to provide her input, but that she did not attend. The union asserts that the Executive Board reviewed the merits of the applicant’s grievance and determined that its chance of success at arbitration was remote, given the seriousness of the allegation against her, her explanation or lack thereof, and her failure to provide an explanation to the Executive Board at its meeting. The Board provided its recommendation to the membership at a subsequent meeting, and the membership voted not to refer the applicant’s grievance to arbitration. The union submits that it also invited the applicant to the membership meeting where the vote took place, in order to provide her input to the membership, but that she did not attend that meeting either.

23The union submits that the applicant has not alleged that it has either participated in a rule that has a discriminatory effect on her, nor has she alleged that it impeded the TTC in accommodating her. It submits that her allegations against it amount to dissatisfaction with its representation of her, and it submits that there is no nexus between those allegations and any enumerated ground of discrimination. Accordingly, it submits, the Application should be dismissed.

The Applicant’s Submissions Regarding File # 2012-12853

24At the summary hearing, the applicant argued that she handed in her Application for Sick benefits in the original form her doctor had supplied, and that she had not changed it. She submitted that a “lot of people” had access to her form but that no one ever looked into the question of who may have altered it, and instead just “assumed” that she had done it. She submitted that she had not changed the form, and feels she should not be disciplined for something she did not do, but that it should be properly investigated. For the first time, at the summary hearing, she also submitted that she feels that the employer did not want to put her in a permanent position, due to her disability, and that “this was an easier way out”.

25With respect to the allegations in her Application about the TTC’s failure to pay her the wage increase mandated by the arbitral award, the applicant conceded that she did receive the cheque from the employer for the increase, but that she did not receive it until well after other employees received their raises. She also submitted that when she received it in the mail, it came with no explanation of what it was for.

26With respect to her Application against the union, at the summary hearing, the applicant essentially repeated her allegations. In particular, the applicant alleges that she should have been given jobs she bid on, with no regard to seniority, and that the union did not assist her in being accommodated in a permanent position. She alleges that the union did not provide her with proper assistance when her employment was terminated, as they should have “done something about it”. She also alleges that the union was aware the elevators were not in good working order, but that they ignored the problem. Finally, she also alleges that the union ignored her requests for payment of the wage increase.

The TTC’s submissions

27The TTC submitted that the applicant’s assertion that there was no proper investigation into the alteration of her Application for Sick benefits form is not a matter for the Tribunal, as the applicant has failed to establish a link between its conduct and her disability. It noted that at the summary hearing that she speculated for the first time that the TTC did not want to put her in a permanent position and chose termination of her employment as an easy way out. It submitted that though it had not yet located a permanent placement for her, it had extended her temporary placement until December, 2012 and there is no evidence to indicate that the TTC did not want to put her in a permanent position.

28With regard to the applicant’s allegation that the TTC did not pay her the increase in salary due to her following the arbitrator’s award, the TTC submitted that it made a “mathematical error” which it did not realize until it re-examined the facts of her case once she filed her Application with the Tribunal. It submitted that there is no blanket policy regarding the payment of wage increases to individuals with permanent medical restrictions who are working in temporary positions. It submitted that it is not common for such individuals to be placed in positions with an associated rate of pay, but that the Reservationist position which she was performing had a rate of pay attached to it. The applicant had been receiving her bus driver’s rate of pay, which was equal to the top of the scale for a Reservationist. It submitted that once the Reservationist position’s salary was increased by the arbitral award, if the applicant were to continue receiving the bus driver rate she had been receiving, she would have been earning less than other individuals with whom she worked. It submitted, however, that when its compensation consultant did the original, manual, calculations, of the salary of each TTC employee with a permanent medical restriction working in a temporary position, the consultant did not realize that continuing to receive her bus driver’s salary would result in a lesser rate of pay for the applicant than if she received the 2% increase to the top of the Reservationist pay scale. The TTC also submits that the compensation consultant assigned to consider the appropriate salary was a different compensation consultant than the one who had originally dealt with her wage treatment when she was first accommodated as a Reservationist. It submitted that the individual to whom the applicant wrote, the Special Placement Coordinator, had nothing to do with whether she would get a wage increase, and that those determinations were made by its compensation department. It submitted that information he relayed to her indicating she would get a raise only when in a permanent position, was not correct. The TTC submits that as soon as it re-examined the issue after receiving her Application to the HRTO, it had a cheque prepared for her for her retroactive increase. The TTC noted that the applicant has now been paid. It cited Cann v. Slovenian Linden Foundation, 2013 HRTO 143, and submitted that because it had simply made an error in calculation, the Application has no reasonable prospect of success and should be dismissed.

The Union’s Submissions

29At the summary hearing, the union submitted that it elevated her seniority when it was asked to do so and submitted that it has not participated in formulating a rule which has had a discriminatory effect on the applicant, nor has it acted as a barrier to her accommodation.

30The union submitted that the remainder of the allegations against the union are in the nature of complaints regarding union representation, with the applicant taking the position that the union did not do enough for her with respect to her termination, her wage increase, the broken elevator and the accommodation of her disability. The union submitted that these representation issues are not properly before this Tribunal, and that they are more properly in the nature of a complaint regarding fair representation at the Ontario Labour Relations Board.

31Though it submitted that the applicant’s assertion that it did not do enough for her with respect to her claim for the wage increase is not an issue properly before this Tribunal, the union also submitted that it has filed a grievance regarding the employer’s alleged practice of red-circling the salary of bargaining unit members who have permanent disabilities and are performing modified work on a temporary basis. It indicated that that grievance is currently being litigated.

DECISION

32Section 5(1) of the Code states:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Tribunal File # 2012-12853-I

33The applicant’s allegations in this Application are essentially that the employer did not conduct a sufficient investigation prior to terminating her and that it did not pay her a wage increase in a timely fashion, stating that she was not eligible while in a temporary position.

34The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in her Application, she must be able to prove discrimination on the basis of a Code ground on a balance of probabilities.

35While the applicant clearly takes the position that the TTC did not have just cause to terminate her employment, and she takes the position that they should have conducted a thorough investigation into the alteration made to her Sick benefits Application form, she has pointed to no evidence to establish a link between the TTC’s alleged actions and her disability. Without such a link, her Application at this Tribunal cannot succeed.

36At the summary hearing, the applicant indicated that she thought that the TTC “took the easy way out” by terminating her employment, as they did not want to find her a permanent position. She has not, however, pointed to evidence she would be able to rely upon to establish that assertion. The bald assertion that discrimination occurred, in the absence of any evidence to support it, does not suffice to establish a link between the respondent’s alleged actions and the Code.

37The applicant must be able to show that the respondent has treated her differently as compared to others based on her disability for her Application to be successful. She has not, however, been able to identify any evidence which would, if proven, establish a connection between the termination of her employment and her disability. Without such evidence, this portion of her Application cannot succeed.

38With respect to the applicant’s allegation that she was not paid the wage increase for discriminatory reasons, the applicant has provided copies of emails between herself and a representative of the TTC and has pointed to evidence upon which she would rely in seeking to establish that the denial of a wage increase was related in some way to her disability. The TTC cited Cann where the Tribunal dismissed an Application as having no reasonable prospect of establishing reprisal, where there was a clerical error made by the respondents, and noted, at paragraph 27 that reprisal requires “evidence of a threat or that an action was intended as retaliation for asserting Code rights.” This is not an Application where the applicant seeks to establish reprisal. Though the TTC has indicated that the delay in paying the wage increase until it received the Application was due to a mathematical error, I am not persuaded that this allegation should be dismissed at this time on the basis that there is no reasonable prospect that it will succeed. Accordingly, the Application is continued as it concerns the issue of payment of the wage increase to the applicant.

Tribunal File # 2012-12854-I

39The applicant alleges that the union did not assist her in obtaining a permanent accommodated position, her wage increase, a working elevator, or a proper investigation into the facts surrounding the termination of her employment.

40With regard to the union’s role and responsibility in workplace accommodation, the union relied on principles articulated in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (“Renaud”), stating that it could only be found to be liable if it (i) participated in a rule which has a discriminatory effect on the applicant, or (ii) if it impeded the employer’s efforts to accommodate the worker.

41While the applicant may not be satisfied with the level of representation she received with respect to obtaining a permanent accommodated position, this is not sufficient to ground an allegation of discrimination contrary to the Code. In Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760, the Tribunal cited Renaud as the “leading case regarding a union’s obligations and potential liability with respect to employment pursuant to the duty to accommodate under the Code” and commencing at paragraph 30, stated as follows:

In the Renaud decision, the Court held that a union which causes or contributes to a discriminatory effect on an employee because of a ground protected under human rights legislation incurs liability ‘with respect to employment’…However, the Court states that the union’s obligations with respect to employment arising out of duty to accommodate only arise if the union is a party to discrimination and that the union may become a party in two ways…

The first way that a union may become a party to discrimination is ‘by

participating in the formulation of the work rule that has the discriminatory effect on the complainant’…

The second way that the Supreme Court held in Renaud that a union may be liable with respect to employment for a failure to accommodate is stated to occur “if the union impedes the reasonable efforts of an employer to accommodate”...

In such a situation, the Court states that it will be known that some condition of employment is operating in a discriminatory manner and the employer is seeking to remove or ameliorate the discriminatory effect. The Court held that a union becomes party to the discrimination ‘if reasonable accommodation is only possible with the union’s cooperation and the union blocks the employer’s efforts to remove or ameliorate the discriminatory effect’.

42The applicant has not pointed to any evidence of a provision in the collective agreement between the union and the employer that had a discriminatory effect on her. She has not disputed the fact that the union assigned her additional seniority, nor has she disputed the fact that she was not successful in the TTC’s pre-testing for the permanent position she sought. Further, she has not pointed to any evidence that the union impeded or blocked the employer’s reasonable efforts to accommodate her needs. Without evidence of the union’s participation in the promulgation of a workplace rule which had a discriminatory effect on her, or without evidence that the union blocked the employer’s reasonable efforts to provide accommodation, there is no basis on which to establish union liability for a failure to accommodate her at work.

43In Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, at paragraphs 33 and 48 the Tribunal found that a union’s failure to act, without more, is not discrimination:

…a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet…There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

Essentially, the applicant asserts that the Association could have done more. Whether or not that is the case, the evidence does not support the conclusion that any failure to ‘do more’ was discriminatory. There is no evidence that any alleged deficiency was different from the Association’s advocacy on behalf of other members with or without a disability.

44The applicant may have concerns regarding the representation she received from her union. However, the power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties. As the Tribunal stated in Vere v. CAW 4207, 2012 HRTO 123, at paragraph 38:

In sum, this Tribunal has held that, in the absence of evidence that a union’s action or inaction was based on a discriminatory factor, not only is a union’s failure to file or pursue a grievance not in itself discriminatory, but so is a union’s failure to advocate on the applicant’s behalf or its failure to assist an applicant in addressing discrimination or to contest the employer’s actions. This kind of conduct may or may not provide a basis for a duty of fair representation complaint against the union under s. 74 of the Labour Relations Act. But it is not this Tribunal’s jurisdiction to determine whether a union fairly or adequately represented a member in the absence of evidence that its conduct was based on a discriminatory factor. That is the role and jurisdiction of the Ontario Labour Relations Board.

45With respect to her allegations that the union did not assist her in securing an accommodated position, her wage increase, a working elevator, or a proper investigation into the facts surrounding the termination of her employment, the applicant has not been able to point to evidence she would rely upon to establish that the union representative subjected her to differential treatment because of her disability. Accordingly, these allegations also are dismissed as having no reasonable prospect of success.

46It is evident that the applicant is not satisfied with the level of representation she has received from her union, but for all the foregoing reasons, I do not find that the allegations regarding the union’s failure to advocate sufficiently on her behalf are capable of providing a basis for imposing liability on the union for violating the Code. Accordingly, all of her allegations against the union are dismissed as having no reasonable prospect of success.

ORDERS

47The Tribunal orders as follows:

1. The allegations in Application # 2012-12853-I which relate to the termination of the applicant’s employment, are dismissed;

2. The allegations in Application # 2012-12853-I which relate to the payment of the wage increase to the applicant, are continued in the Tribunal process, and continue to be consolidated with Application # 2011-10540-I;

3. Application # 2012-12854-I against the union is dismissed.

4. If the parties are interested in participating in mediation of the consolidated Applications, they are directed to advise the Tribunal within 14 days of this Interim Decision. Otherwise, they will be scheduled for a hearing.

48I am not seized.