May v. Mill Creek Care Centre, 2014 HRTO 625

Human Rights Tribunal of Ontario

Between: Tammy May, Applicant -and- Mill Creek Care Centre, Respondent -and- Labourers’ International Union of North America, Local 183, Affected Party

Interim Decision

Adjudicator: Paul Aterman Date: May 1, 2014 Citation: 2014 HRTO 625 Indexed as: May v. Mill Creek Care Centre

Appearances

Tammy May, Applicant Joseph Tascona, Counsel

Mill Creek Care Centre, Respondent Steven Wilson, Counsel

Labourers’ International Union of North America, Local 183, Intervenor Neil Keating, 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”). A teleconference hearing was held on April 28, 2014 to deal with a number of preliminary issues.

2The applicant is a personal support worker employed by the corporate respondent. In her Application she alleges discrimination by both the corporate respondent and by Maureen Pauls, the personal respondent. It appears that she alleges that the respondents discriminated against her by harassing her with respect to a workplace injury in the period from July 28, 2012 to November 5, 2012. The applicant went on medical leave. She also alleges that when she was ready to return to work the respondents discriminated against her from April 22, 2013 to July 3, 2013 by trying to block her return to work. The applicant requests that she be allowed to amend her Application to add a further allegation, this one of reprisal, relating to alleged events after her return to work on July 4, 2013.

3The respondents request dismissal of the allegations pursuant to s.45.1 of the Code on the grounds that other proceedings have appropriately dealt with their substance. First, they say that any alleged harassment up to November 5, 2012 was the subject of a union grievance dated August 8, 2012. They say that the grievance was withdrawn with the applicant’s consent, and in consideration for the withdrawal the corporate respondent agreed to organise a team-building and education session on harassment and bullying in the workplace.

4Second, with respect to the alleged obstruction of the applicant’s return to work, the respondents argue that the union filed two grievances, one on April 29, 2013 and one on July 4, 2013, that these were settled and that they were settled with prejudice to the applicant pursuing these allegations before this Tribunal.

5The respondents also request that, if the allegations are not dismissed, then the Tribunal should remove Maureen Pauls as a personal respondent and should add the union as a party. The union, not surprisingly, does not want to be added as a party.

6The respondents’ request to dismiss the allegations is granted in part. In relation to the remaining allegations, the applicant is directed to provide details that support her allegations as it is difficult to understand what she is actually alleging. The applicant is also directed to provide particulars relating to any alleged reprisal. Once that is done the Tribunal will determine whether or not to grant the request to amend her Application. The request to remove Maureen Pauls as a personal respondent is granted. The request to add the union as a party is denied. The reasons below explain these decisions.

Evidence and Analysis

The allegations relating to the period July 28 – November 5, 2012

7It is clear from reading the materials filed so far that there were conflicts between the applicant and her co-workers and between the applicant and the corporate respondent’s managers. What is not clear is the extent to which these conflicts may have a link to the Code and the extent to which they have no bearing on the applicant’s disability. It is unclear because all that the narrative portion of the Application says is that there was “ongoing harassment and breach of my confidential medical information” after she was injured in the workplace in July of 2012. In their Response the respondents asked for particulars.

8The applicant filed a Reply and a request to amend the Application, but neither provides any pleadings which explain when and how the respondents allegedly discriminated against the applicant in the period up to November 5, 2012. Rather, the applicant supplied 153 pages of what appear to be a combination of a diary or notes made by the applicant about events from November of 2011 onwards, emails from various people involved in these conflicts and other documents that may be relevant to the issues raised by this Application.

9In its Case Assessment Direction of November 7, 2013 the Tribunal noted that it was unclear what events or allegations the applicant was seeking to add or correct in her Reply and request to amend. It indicated that the request to amend would be dealt with after the other preliminary issues were dealt with and the applicant had provided clarification of her request. Notwithstanding that direction, the applicant’s subsequent submissions do not make her request any clearer. In a case where the applicant is represented by counsel, neither the respondents, nor the union nor the Tribunal can be expected to try to make sense of the undifferentiated mass of information provided with the Reply. This issue is further addressed below.

10What is clear from the materials is that the union did file a grievance on August 8, 2012. The grievance alleges that the managers of the corporate respondent failed to protect the applicant from harassment. The nature of the harassment is not specified and, because the applicant has not clarified her pleadings, it is not possible to say whether the grievance was aimed at addressing Code- related issues or not.

11The union withdrew the grievance by a letter dated July 17, 2013. It states:

After a meeting on July 3, 2013 between the Grievor, Ms. Tammy May, the Union, Suzanne Dunphy-Snow, and Management, Karie Warner and Maureen Pauls at Mill Creek Care Centre, the Grievor, Ms. Tammy May has agreed to withdraw the above noted grievance with the understanding that the Employer is in the process of arranging a Team Building session and an education to the Membership of Mill Creek Care Centre on Harassment and Bullying in the workplace.

12There are no Minutes of Settlement and no indication of the impact of this withdrawal on any other pending process. Moreover, the applicant signalled her disagreement with the decision to withdraw the grievance. She did so after the fact. The corporate respondent has notes of the meeting which it claims contradict the applicant’s contention that she disagreed with the resolution of the grievance at the July 3 meeting.

13The respondents argue that the withdrawal of the grievance appropriately dealt with the substance of the applicant’s allegations of discrimination in the period leading up to November 5, 2012. They say that if the applicant did not like how the grievance was resolved she could have brought a duty of fair representation complaint against the union pursuant to s.74 of the Labour Relations Act, 1995, S.O. 1995, c.1.

14In s. 45.1 the Code provides that 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.”

15At this stage it is not necessary to determine whether the grievance and its subsequent withdrawal constituted a proceeding within the meaning of s.45.1. This is because it is not clear whether the grievance appropriately dealt with the substance of the allegations of discrimination in the period from July – November of 2012. The reason that this is difficult to determine is that, as noted above, the applicant has not provided particulars regarding these allegations.

16It is not fair to the respondents that they cannot advance a defence – in this case a request for dismissal pursuant to s.45.1 – because the applicant’s pleadings lack enough particulars for anyone to be able to determine whether the section applies or not.

17Once the applicant has provided particulars in accordance with the Order below, it will be open to the corporate respondent to renew its request, if it so chooses.

The allegations that the respondents blocked the applicant’s return to work

18When the applicant sought to return to work from her medical leave the corporate respondent requested medical confirmation that she was fit to return to work with no restrictions. It maintains that it not only has the right, but the duty to do so because the residents at the respondents’ Home are elderly, frail and vulnerable and this is a matter of patient safety. The applicant’s view is that she was unjustifiably obstructed from going back to work when she was fit and ready to do so.

19The union filed two grievances on behalf of the applicant. The April 29, 2013 grievance requested that the applicant be allowed to return to work and the July 4, 2013 grievance requested that she be allowed to return to the position she held before going on leave.

20The grievances were settled. Prior to the signing of the Minutes of Settlement the applicant tried to have a paragraph inserted in the Minutes which specified:

The Parties understand and agree that these Minutes of Settlement neither resolves Ms. May's Human Rights Application HRTO File No. 2013-14601, nor precludes that Application from being fully considered and adjudicated by the HRTO.

21The union sent the applicant’s counsel a letter on August 9, 2013. It spells out the union’s refusal to add this paragraph to the Minutes, makes clear that the applicant can choose between settling the grievance or asking the Tribunal to deal with the allegations, and recommends that the applicant sign the Minutes without any amendment.

22The applicant then signed the Minutes and underneath the signature blocks on the Minutes the following is written: “Per union letter dated August 9, 2013”.

23The applicant argues that the settlement did not deal with the substance of the allegations of discrimination relating to her return to work.

24The Tribunal has repeatedly held that settlement of a grievance constitutes a proceeding within the meaning of s.45.1 of the Code. Here the scope of the settlement is clearly defined in Minutes signed by both parties to the grievance and the applicant. When the Minutes are read in conjunction with the union’s letter to the applicant’s counsel, it is abundantly clear that the applicant and the parties intended that the settlement would also dispose of the allegations before the Tribunal. The applicant initially sought that the allegations before the Tribunal be exempted from the scope of the settlement, the union refused and the applicant then acceded to that refusal. The grievance and its resolution constituted a proceeding which appropriately dealt with these allegations. For these reasons the allegations that the applicant was discriminated against by the respondents first obstructing her return to work and then by not returning her to the day shift are dismissed.

Request to remove personal respondent

25The respondents request that Maureen Pauls be removed as a personal respondent. They cite the factors in Persaud v. Toronto District School Board, 2008 HRTO 31 in support of their request. The applicant has not explained why Ms. Pauls should be maintained as a personal respondent, other than to say that she thinks Ms. Pauls acted in a discriminatory manner. She has not pointed to any actions of Ms. Paul that might justify making an award against her personally, nor has she shown any reason for thinking that the corporate respondent could not assume responsibility for Ms. Pauls’ actions. I am not satisfied that the applicant would be prejudiced by the removal of Ms. Pauls as a respondent. The respondents’ request is granted.

Request to add the union as a party

26The decision above that the settlement of the April 29 and July 4, 2013 grievances appropriately dealt with the applicant’s allegations of discrimination regarding her return to work effectively disposes of the issue of the union’s role in those events. At this stage there are no other allegations that the union discriminated against the applicant. There is no basis for adding the union as a respondent at this time.

27The union intervened for the purposes of making submissions on the above preliminary issues, but has not requested intervenor status for the remainder of these proceedings. To the extent that the eventual disposition of this Application may involve interpreting the collective agreement or determining how it was interpreted and applied, the union may be interested in intervening. If it wishes to do so, it can make a request in accordance with the Tribunal’s Rules of Procedure.

The need for the applicant to provide particulars

28The applicant is directed to provide particulars to support her allegations of discrimination in relation to the period from July 28, 2012 to November 5, 2012 and in support of her allegation of reprisal in the period after her return to work on July 4, 2013. The particulars are to identify each alleged incident of discrimination. They are to explain what happened, when it happened, who was involved and how the alleged actions constitute an incident of discrimination or reprisal under the Code. The applicant is being directed to provide pleadings that explain what she claim happened. If she wishes to provide evidence, such as emails, notes and documents that support the pleadings, she is free to do so and that may be helpful, but the evidence is not a substitute for the required pleadings that explain what her case is all about. The applicant has 14 days from the date of this Interim Decision to provide the pleadings to the respondent and the Tribunal. If she does not do so, her Application may be declared abandoned.

Order

29The respondents’ request to dismiss the applicant’s allegations is granted in part. The allegations that the applicant was discriminated against by the respondents first obstructing her return to work and then by not returning her to the day shift are dismissed pursuant to s.45.1 of the Code.

30The personal respondent, Maureen Pauls, is removed as a respondent and the style of cause is amended accordingly.

31The request to add the union as a respondent is denied.

32The applicant is to provide particulars to support her allegations of discrimination in relation to the period from July 28, 2012 to November 5, 2012 and in support of her allegation of reprisal in the period after her return to work on July 4, 2013. She is to provide them to the respondent and the Tribunal within 14 days of the date of this Interim Decision. If she does not do so her Application may be dismissed as abandoned.