Jimmy Gibson v. Teamsters of Canada Local 419 and Waste Management of Canada Corporation, 2015 HRTO 1473

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jimmy Gibson

Applicant

-and-

Teamsters of Canada Local 419 and Waste Management of Canada Corporation

Respondents

DECISION

Adjudicator: David Muir

Date: November 3, 2015

Citation: 2015 HRTO 1473

Indexed as: Gibson v. Teamsters of Canada Local 419

APPEARANCES

Jimmy Gibson, Applicant

Sanja Mavrak Counsel

Waste Management of Canada Corporation, Respondent

Seann D. McAleese, Counsel

Teamsters of Canada Local 419, Respondent

Mireille Giroux, Counsel

1This is an Application filed on March 3, 2015 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment and membership in a vocational association because of disability and reprisal.

2The respondent Waste Management of Canada Corporation is the applicant’s employer (“employer”) and the Teamsters Canada Local 419 the applicant’s bargaining agent (“union”)

3In a Case Assessment Direction issued on April 16, 2015 the Tribunal directed that a summary hearing be held to determine whether this 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.

4A summary hearing was held by telephone conference call on August 7, 2015. All parties participated.

5In his Application the applicant makes a number of allegations against the respondent union including that they improperly represented him in a grievance which ultimately settled. Although the applicant acknowledges the settlement, he now asserts that he was coerced into accepting the settlement. In addition to the applicant’s claim of inadequate representation the applicant alleges that the respondent union deliberately mislead him about the time limits for filing a human rights application and that it has conspired over the years to reduce Workplace Safety and Insurance Act (“WSIA”) costs.

6The allegations in the Application as they relate to the respondent employer are extremely vague and general and as articulated appear to be out of time or related to other individuals.

7Although not included in the Application, in written submissions provided prior to the hearing the applicant expanded his Application. He alleges that he suffered a work place injury on November 27, 2012. He alleges that he was asked to agree to modified work prior to being examined by a physician and was required to wait longer than reasonably necessary to get medical attention. He was required to wait for 2 or more hours before being seen by a health care provider. He also alleges that he was disciplined because of his disability in early 2013.

8The applicant filed a WSIB claim after the workplace injury for lost time which was denied. The applicant with the support of the union appealed that determination. The applicant also filed a grievance with respect to the workplace injury and the alleged failure of the respondent to allow him to seek immediate medical treatment.

9On or about March 3, 2014 the parties, including the applicant, settled the grievance. The applicant acknowledges a settlement was reached but he alleges that he was coerced into accepting the settlement. The settlement compensated the applicant for his lost time claim. The applicant claims that the settlement of the grievance was discriminatory and that the union was negligent in its handling of the case. The applicant relies on the settlement of this grievance as the final act of discrimination. The Application was filed on March 2, 2015

10As part of the settlement the Teamster’s withdrew their support for the applicant’s WSIA appeal. The reason given for this decision was that the applicant had been made whole with the settlement of the grievance. The applicant alleges that the respondent union’s withdrawal of support of his appeal was discriminatory.

The Allegations against the employer

11For the reasons that follow the Application is dismissed.

12As the Tribunal has held on many occasions, it does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondents' adverse treatment of the applicant is based, at least in part, on the applicant’s race, gender, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.

13As regards the respondent employer the Application as framed does not contain any allegations of discrimination by this respondent. Also considering the new issues raised by the applicant at the summary hearing, it remains that the allegations of the applicant do not raise any Code concerns. I also would observe that the allegations against the respondent employer have by and large been resolved by the grievance which was settled.

14However, that issue aside, the applicant has no reasonable prospect of establishing his allegation that he was delayed by a couple of hours in seeing a physician amounts to discrimination. There is no evidence that he was treated in an adverse way because he may have been a person with a disability. At worst, he experienced an allegedly unfair delay in seeing a doctor – this is not discriminatory under the Code even if it was unfair. Similarly being asked to sign paperwork related to his WSIA claim including an offer of modified duties does not make out the essential elements of discrimination under the Code. At the end of the day he was seen by a health care provider and provided with modified work. He had a dispute about a lost time claim in relation to the accident which was denied by the Workplace Safety and Insurance Board (“WSIB”) and for which he holds the respondents partly responsible, but those issues were resolved by the grievance which made him whole for the lost time and in any event are issues he could have pursued with the WSIB if he had chosen to do so. More importantly those disputes do not make out a claim for differential treatment on the basis of a Code protected ground.

15The denial of his claim by the WSIB is not the responsibility of these respondents. The applicant also argued that the respondents conspired together to reduce WSIA costs and that this is evidence of discrimination. The mere fact that an employer and trade union would be concerned about workplace accident and injury and the costs for the employer that flow from such incidents is hardly surprising and does not of itself establish the essential elements of discrimination under the Code. Otherwise the only content to this allegation is that the respondent employer offered inadequate compensation for his grievance. Whether or not the compensation offered and accepted to settle the grievance was adequate is beside the point – the applicant accepted the compensation offered. It is not discrimination in these circumstances to settle a grievance.

16The applicant also claims that he was disciplined by the respondent employer because he was perceived as being prone to workplace accidents. He relies on a Mentor Program meeting held in December 2012 shortly after the accident. I note that this allegations appears to be out of time, but for the reasons below I need not deal with that issue.

17The applicant relies on a document which the applicant indicates is disciplinary in nature. The document which is titled MIE/SIE Action Plan and dated December 3, 2012 contains the following:

Reason For the Plan: Jim has had two prior lower back injuries, a strain from stepping down from a truck, and a strain from lifting. Both Incidents were OSHA recordable and incurred lost time. Upon Jim’s return a discussion and presentation of his plan will be held with Route Manager G. M., G. B. and his peer mentor, M.C.. Jim will be told how a lost-time injury affects his co-workers (scheduling), managers (man hours spent doing inspections, reports), the site (lost-time injury costs) and how he needs to pay much more serious attention to personal accountability. His Iack of focus affects many people at the site as well as costing the site a big hit to the bottom line. Jim will be told that it is not okay to continue to get injured lifting blue boxes, which is the lightest work we do on collection vehicles. Peer Mentor C is a productive employee who works within the guidelines of the Rules Book and who will have no problem having a "straight talk" with Jim to remind him of the expectations as well as show him through safe work habits.

18However the Mentor Program Meeting minutes which followed from the Action Plan above and which the applicant relies on contain the following passages, in the notes of the meeting section:

I (manager) asked Jim (applicant) if there is anything specific we as a company can do to help him avoid incidents in the future. Jim mentioned the size of route is an issue ….

19While it is possible in some circumstances that a program such as this could have discriminatory effects, it would require some evidence of an adverse consequence for the applicant that could not be justified by the circumstances. However, being counselled about injuries in the workplace and proper workplace practices is not necessarily discriminatory. I am not satisfied that the mentoring program is discriminatory in all of the circumstances. The fact that an employer disciplines an employee for unsafe work practices that resulted in an injury to a worker is not evidence of discrimination indeed an employer has a responsibility to take all reasonable steps to ensure the health and safety of workers including discipline where appropriate. More is therefore required than the mere assertion of a workplace injury and discipline for the conduct that led to the injury to establish the necessary link to the Code.

20The applicant also relies on the fact that the employer and perhaps the union were concerned about WSIB claims. This allegation if true, and I assume that it is, is not evidence that would tend to support the applicant’s allegation that he experienced discriminated in these circumstances.

21The applicant alleges reprisal. The Application contains no allegations of reprisal, in submissions prior to and at the summary hearing the applicant argued that he has raised human rights issues in the past and he has been disciplined. He provided no particulars of either aspect of this claim. To the extent that he relies on the alleged discipline flowing from the November 27, 2012 incident, I note my conclusions above. There is no evidence to which the applicant can point which would tend to establish that the respondent employer intended to impose a penalty or punishment on the applicant because he sought to advance his or another person’s Code rights.

The allegations against the respondent union

22The central allegation against the union is that they did not properly represent him and forced an inadequate settlement on him. Assuming that these allegations can be proven, there is no evidence or indeed even an allegation really that a factor in the respondent’s actions was that he was or had been a person with a disability. See Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996.

23In regards to the respondent union’s withdrawal of support for his WSIA appeal, again there is no evidence linking this decision to the applicant being a person with a disability. The stated reason is that he was made whole by the grievance settlement – on its face that is a reasonable explanation and the applicant has no evidence to which he can point towards which would establish that the reason was that he was a person with a disability.

24The applicant alleges that the respondent union deliberately did not tell him about the time lines for filing this Application. He provided no particulars of this allegation or how, even if true, such an omission amounted to differential (let alone disadvantageous) treatment because of a Code ground and accordingly there is no content to this allegation.

25The applicant also argues that union officials have filed human rights grievances and received more compensation. Assuming without finding that such an allegation is capable of being proved it is evidence of favoritism perhaps but it is not evidence of discrimination on the basis of a Code ground. As such it is clear that this aspect of the Application has no reasonable prospect of success and accordingly must be dismissed.

26For all of these reasons the Application is dismissed.