Wright v. One King West Hotel Residence, 2015 HRTO 1123

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jessica Wright Applicant

-and-

One King West Hotel Residence Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: August 24, 2015 Citation: 2015 HRTO 1123 Indexed as: Wright v. One King West Hotel Residence

1This Application alleges reprisal and discrimination with respect to employment because of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant alleges that she asked for accommodation of her child care needs in December 2014 and that she was subsequently treated differently and her employment was terminated in February 2015.

3The applicant was a member of UNITE Here Local 75. A grievance was filed after the termination of employment but it appears that it was not pursued by the union.

4The respondent filed a Response which denies reprisal or discrimination contrary to the Code. The respondent submits that the substance of the Application was dealt with by the union grievance and asks that the Application be dismissed under section 45.1 of the Code which provides:

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.

5The respondent concedes that there was no arbitration of any other proceeding in relation to the grievance, but points to the collective agreement that provides that if no written request for arbitration is received within 15 days of the denial of the grievance by the employer, "the grievance shall be deemed to have been settled."

6The request for dismissal under section 45.1 is denied. It appears that a grievance was filed but was not pursued. There was accordingly no proceeding that dealt with the substance of the Application. The fact that the collective agreement indicates that the union and the employer have agreed that a grievance that is not pursued is deemed to have been settled does not seem to be of any significance in this respect.

7The respondent suggests that if there were to be a finding of discrimination, the union should be jointly liable and suggests that the union should be added as a respondent. The basis for this appears to be that the union did not file a grievance with respect to various things that the applicant identifies as alleged discrimination. The Tribunal's usual approach to whether a union should be a respondent is set out in Traversy v. Mississauga Association, 2009 HRTO 996:

[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 many 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 v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

8In the present case, the union has not been added as respondent. The Response Form allows a respondent to name a respondent at section 4 of the form but this section was not completed in this case. If the respondent wishes to add the union as a respondent, it must file a Request for Order During Proceedings.

9A copy of the Application was delivered to the union in accordance with the Tribunal's normal practice. The union has not applied to be an intervenor or otherwise asked to be involved in the Application.

10The applicant and the respondent have both agreed to try mediation at the Tribunal and the Registrar will proceed to schedule a mediation date.