Kolodziejczyk v. Interstate Hotels and Resorts, 2014 HRTO 837

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jolanta Kolodziejczyk

Applicant

-and-

Interstate Hotels and Resorts o/a The Westin Bristol Place Toronto Airport and Bernardo Guerra

Respondents

-and-

The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union

Intervenor

INTERIM DECISION

Adjudicator: Paul Aterman

Date: June 6, 2014

Citation: 2014 HRTO 837

Indexed as: Kolodziejczyk v. Interstate Hotels and Resorts

WRITTEN SUBMISSIONS

Jolanta Kolodziejczyk, Applicant

Self-represented

Interstate Hotels and Resorts o/a The Westin Bristol Place Toronto Airport and Bernardo Guerra, Respondents

Samantha Crumb, Counsel

The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Intervenor

Andrew MacIsaac, Counsel

1This Interim Decision explains why the Tribunal is deferring this Application, is granting a request to add Interstate Hotels and Resorts o/a The Westin Bristol Place Toronto Airport as a respondent but is denying a request to remove Mr. Guerra as a personal respondent, and is granting the request of The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“the union”) to intervene.

2The applicant worked as a server in a restaurant at the Westin Bristol Place Toronto Airport hotel. The personal respondent is the Food and Beverage Manager and would assign shifts to servers. The applicant alleges that he discriminated against her with respect to employment because of her race and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant says that the personal respondent reduced her shifts and treated her in an abusive way because she is of a different ethnic background than he is. She maintains that this was tolerated by management of the hotel. Eventually she was terminated, and she alleges that her termination was also tainted by racial and ethnic discrimination.

3Even though the applicant only named Mr. Guerra as a respondent when she filed her Application, the narrative part of her Application alleges that the corporate respondent condoned his allegedly discriminatory conduct. The corporate respondent has requested that it be named as a respondent and that Mr. Guerra be removed as a respondent because the corporate respondent is prepared to assume liability for any discrimination the Tribunal might find on his part. It argues that any actions taken by Mr. Guerra were done in the normal course of his employment and there is nothing about his conduct that would justify maintaining him as a personal respondent.

4The applicant does not object to the addition of the corporate respondent, but she opposes removal of the personal respondent. She alleges that his actions justify a finding of liability against him personally.

5On consent of the parties Interstate Hotels and Resorts o/a The Westin Bristol Place Toronto Airport is added as a respondent. However, I am not prepared to order that Mr. Guerra be removed as a personal respondent at this stage.

6While the Application does not set out a detailed narrative, it does allege that Mr. Guerra acted of his own initiative rather than at the direction of more senior managers. The conduct of Mr. Guerra will be a central issue in any hearing of this Application. Notwithstanding the corporate respondent’s vicarious liability for the actions of its employees, the Tribunal might determine that there is reason to make an award against Mr. Guerra personally. For these reasons I am not satisfied that all of the criteria in Persaud v. Toronto District School Board, 2008 HRTO 31, have been met and this request is denied.

7The applicant is a member of the union. It has filed a grievance of her termination. No party has opposed the union’s request to intervene. It is well established in the Tribunal’s decisions that where an Application deals with terms and conditions of an applicant’s work, the union has an interest in participating. The union will be added as an intervenor.

8The respondents request deferral of this Application until the pending grievance is resolved. The union indicates that it is aware of the human rights concerns that the applicant has raised and that it will consider those in determining how it will proceed with the grievance filed on the applicant’s behalf. The grievance is at the final stage of the process under the collective agreement and the union is going to decide whether to refer it to arbitration. The applicant opposes deferral because she feels that the union has delayed in dealing with this grievance.

9The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve allegations of discrimination brought before it.

10In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

11Here there is an overlap of facts and issues in this Application and the grievance proceeding. If the grievance proceeds to arbitration and the applicant succeeds, an arbitrator has the power to award similar remedies to the one she is requesting in the present Application. Further, the grievance proceeding is more advanced than this Application. While the grievance process may be taking longer than the applicant would like, the most recent correspondence from the union indicates that it is actively managing this grievance. It does not appear that the applicant will have to wait long to find out whether the grievance will be referred to arbitration. For all of these reasons the request to defer is granted.

order

12Interstate Hotels and Resorts o/a The Westin Bristol Place Toronto Airport is added as a respondent and the union is added as an intervenor. The style of cause is amended accordingly.

13The request to remove Mr. Guerra as a respondent is denied.

14The Application is deferred pending the completion of the grievance process.

15The parties’ attention is directed to Rules 14.3 and 14.4, which outline the procedure by which a party may seek to bring the Application back on after the conclusion of the grievance process.