Tesfamariam v. Camcor Manufacturing, 2015 HRTO 219

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tesfalem Tesfamariam

Applicant

-and-

Camcor Manufacturing

Respondent

DECISION

Adjudicator: Brian Cook

Date: February 19, 2015

Citation: 2015 HRTO 219

Indexed as: Tesfamariam v. Camcor Manufacturing

APPEARANCES

Tesfalem Tesfamariam, Applicant

Peter Mancini, Paralegal

Camcor Manufacturing, Respondent

Todd Weisberg, Counsel

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”). The Application was filed on May 4, 2011. In Interim Decision 2011 HRTO 1645, the Application was deferred pending ongoing adjudication at the Workplace Safety and Insurance Board (WSIB) and the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The appeal at WSIAT was deemed to have been abandoned by the applicant.

2The Application was re-activated. The respondent submitted that the Application should be dismissed on the basis that the WSIB has appropriately dealt with the substance of the Application.

3A telephone conference call hearing was scheduled to hear submissions on whether the Application should be dismissed. The telephone conference call hearing was heard on November 12, 2014.

Background

4The applicant started his employment as a machine operator with the respondent in 2007. The applicant's employment was terminated on April 12 2011. The applicant alleges that the termination was discriminatory. He alleges that the respondent failed to accommodate his disability during his employment and that the termination of employment was related to the disability and the failure to accommodate. The respondent asserts that it did accommodate the applicant’s disability and that the termination happened because the applicant created a health and safety concern when he removed a safety feature from the machine he operated.

5The applicant suffered work-related injuries in the course of his employment with the respondent. The WSIB determined that the applicant had a permanent chronic pain disability as a result of the first injury which occurred in 2008. The WSIB determined that the applicant had suffered a repetitive strain injury involving his right wrist in March 2010 and that this condition resolved by June 2010. The applicant also reported an onset of neck pain in 2010 but the WSIB determined that this condition was not work-related.

6A significant dispute arose in June 2010 regarding the applicant’s hours of work. The applicant felt that he was capable of working only four hours per day. On June 28, 2010, the applicant's family doctor provided a note stating that the applicant had physical restrictions in regard to ongoing right wrist, neck and low back conditions, and that he was restricted to four hours work. The WSIB determined that the applicant was capable of modified work on a full-time basis. The applicant worked only part-time hours.

7Following a return to work meeting with a WSIB return to work specialist in July 2010 a plan was developed. Under the plan, the applicant was to work on a full-time basis. However, on several days from August to October 2010, the applicant worked only part-time hours. The respondent issued written warnings to the applicant about his failure to follow the return to work plan. The applicant provided further notes from his family doctor stating that the applicant could only work part-time hours. On October 12, 2010, the WSIB Claims Manager issued a decision confirming that the applicant was capable of working on a full-time basis.

8On October 18, 2010, the respondent issued progressive discipline letters to the applicant for continuing to work only part-time hours. The applicant however continued to work only part-time hours.

9On April 9, 2011, the respondent determined that the applicant had unsafely removed a safety guard from the machine he was operating and had reached into the machine while it was operating, which created a risk of severe injury. On April 12, 2011, the applicant’s employment was terminated for cause. According to the Application, the applicant has provided a statement to his representative that “contradicts the accusations from the employer” in relation to the events on April 9, 2011. The Application suggests that the alleged safety violation was a pretext to allow the respondent to terminate the applicant's employment because the respondent was frustrated with the ongoing dispute about hours of work.

10The applicant objected to decisions of the WSIB limiting his entitlement to benefits and his objection was heard by a WSIB Appeals Resolution Officer (ARO) who held a hearing on September 7, 2011. The applicant was present at the hearing and was represented by Mr. Mancini, his representative in respect of this Application. The respondent was also present and was represented by counsel.

11In a decision dated December 7, 2011, the ARO denied the applicant's objections. He determined that the applicant was not entitled to increased benefits for the chronic pain disability condition, that the applicant was not entitled to benefits for his cervical spine condition, and confirmed that the effects of the work-related wrist condition had resolved by June 2010. The ARO dealt with the hours of work controversy. He found that while the applicant's doctor had said that the applicant was capable of only part-time work, this was based only on the information provided by the applicant and was not based on information about the actual work conditions and the accommodations that were available. The ARO found that the evidence as a whole showed that the applicant could work full-time hours and was not restricted to only part-time hours.

12The ARO also considered whether the applicant was entitled to loss of earnings benefits after the termination of the applicant’s employment. The ARO determined that the termination of employment was not related to the applicant's disability and found that the applicant was not entitled to loss of earnings benefits after the termination.

13The applicant appealed the decision of the ARO to the WSIAT. A Panel of the WSIAT convened to hear the applicant’s appeal on February 14, 2013 and April 10, 2014. The Panel issued Decision No. 320/13, 2014 ONWSIAT 933, on April 29, 2014. According to the Decision, the appeal started on February 14, 2013 when the Panel heard the applicant's testimony but the hearing could not be completed on that date. A further date was eventually scheduled for April 10, 2014.

14According to the Decision, on April 10, 2014, the applicant suddenly left the hearing room shortly after the hearing commenced. The applicant’s representative spoke to the applicant but was not able to convince him to continue with the hearing. The representative was also unable to obtain instructions allowing him to continue the hearing in the applicant’s absence. For the reasons set out in Decision No. 320/13, the Panel deemed the applicant to have withdrawn the appeal. The Panel noted that any future attempt to renew the appeal would be subject to the time limit provisions set out in section 125(2) of the Workplace Safety and Insurance Act, 1997.

15The Application was filed on May 4, 2011, shortly after the applicant's employment was terminated. The Application was deferred because of the ongoing related adjudication at the WSIB. Following the WSIAT Decision, the applicant applied to the Tribunal to have the Application re-activated. The Application was re-activated and the issue that must now be determined is whether the Application can be heard by the Tribunal or if it must be dismissed.

16The respondent submits that the decision of the ARO has appropriately dealt with the substance of the Application. In the alternative, the respondent submits that the Application should be dismissed because the Application is essentially an appeal of the ARO’s decision which should properly be heard by the WSIAT. Since the applicant pursued an appeal to WSIAT but then effectively withdrew from that process, it would be an abuse of this Tribunal’s process to permit the Application to continue.

Analysis

17Section 45.1 of the Code 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.

18Interpretation of this section is guided by two decisions of the Supreme Court of Canada. The first of these is British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) and the second is Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (“Penner”). This Tribunal has considered how these decisions impact the Tribunal’s interpretation of section 45.1 in a number of cases, notably, Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 (“Claybourn”).

19In Post v. Stevens Resources Group, 2014 HRTO 1470, I reviewed these decisions and concluded:

According to Figliola and Penner, once it has been confirmed that concurrent jurisdiction exists to decide the human rights issues, there are three primary questions to consider in order to determine if another proceeding has appropriately dealt with the substance of the Application. These are:

1. whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it;

2. whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and

3. Would it be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case?

20The first question is whether the ARO hearing and decision was a “proceeding” within the meaning of section 45.1. It appears to me that it was. The parties were both present, had a full opportunity to call evidence and make submissions to an adjudicator who had the authority to decide the matter before him.

21The next question is whether the ARO “appropriately dealt with the substance of the Application” and whether it should accordingly be dismissed under section 45.1 of the Code. As noted above, this involves a consideration of whether the legal issue dealt with by the ARO was essentially the same as what is being complained of to the Tribunal.

22The substance of the Application is that the respondent discriminated against the applicant by not agreeing that he could work only part-time hours and that the applicant's disability was a factor that contributed to the decision to terminate his employment.

23It seems clear that the ARO dealt with both of these issues, on the basis of evidence and testimony presented from the applicant and the respondent, both of whom were present and represented at the hearing before the ARO.

24At the same time, it is also clear that the ARO did not make any explicit determination about whether the respondent discriminated against the applicant contrary to the Code. The ARO did not explicitly determine whether the respondent accommodated the applicant to the point of undue hardship. As noted by the applicant’s representative, the Workplace Safety and Insurance Act, S.O. 1997, c. 16, as amended (“WSIA”) does not give the WSIB jurisdiction to make determinations under the Code. However, as the applicant's representative submitted to the ARO, the WSIB is required to consider the Code when making determinations about whether an employer has offered suitable work to a worker.

25The WSIB Operational Policy Manual document No. 19-02-02 discusses the duty to accommodate in respect of the return to work process:

All employers have a duty to modify the work or the workplace to accommodate the needs of the worker to the extent of undue hardship. This duty arises through the obligation to re-employ set out in the Act or the associated Construction Regulation, and/or the Ontario Human Rights Code (the Code) or the Canadian Human Rights Act.

If a job becomes available that can be made suitable through accommodation, and the accommodation does not cause the employer undue hardship, the employer must provide the accommodation. A worker’s accommodation requirements may be temporary or permanent.

During the WR process, employers and, when relevant, unions and workers are expected to comply with human rights legislation and associated policies.

The Code guarantees equal access to employment opportunities to any person with a disability, whether such disability is work or non-work-related. Pursuant to the Code, if a person with a disability requires accommodation to perform the essential duties of a job, the employer must provide accommodation unless to do so would cause the employer undue hardship.

To assist in determining undue hardship, the WSIB refers to the Ontario Human Rights Commission’s (OHRC) Policy and Guidelines on Disability and the Duty to Accommodate. Since relevant human rights legislation also protects workers from discrimination on a number of grounds including disability, sex (pregnancy, gender identity), creed, ethnicity, family status and age, employers may have accommodation requirements during the WR process in addition to those related to the work related-impairment.

26In this case, the ARO reviewed the measures that were taken to accommodate the applicant’s compensable and non-compensable disabilities. He was aware that the applicant felt that the accommodations were not sufficient and that the accommodated work that was offered was not suitable. After weighing the evidence, he concluded that the applicant's restrictions had been accommodated and the work offered was suitable.

27With respect to the end of the applicant's employment, the ARO’s decision states:

In terms of entitlement following termination I note the only specific evidence in this respect is the April 12, 2011 employer letter to the worker informing him of his dismissal resulting from his removing a safety guard and continuing to operate the machine in an unsafe manner. The worker did not raise a formal reemployment appeal and has provided no evidence to suggest this event did not occur as reported.

28This determination did not include a specific finding on the issue raised in the Application that the applicant’s disability was a factor in the termination of his employment. However, it does indicate that at the hearing before the ARO the applicant did not dispute the information about the reason for the termination. According to the Application, the applicant has provided his representative with a statement that “contradicts the accusations from the employer”. Although this statement was not included with the Application, it appears that the applicant may now wish to dispute the circumstances of the termination of his employment.

29Leaving aside the question of why this evidence was not provided to the Appeals Resolution Officer, it does appear that the issue of whether the applicant's disability was a factor in the decision to terminate the applicant’s employment may not have been dealt with by the Appeals Resolution Officer.

30This then leads to a consideration of the proceedings before the WSIAT Panel. According to the Panel’s decision, the applicant testified and was cross-examined on the first day of hearing. Since the appeal was eventually deemed to be withdrawn, the Panel did not say what the applicant's testimony consisted of. However, it must be assumed that the applicant provided his full explanation about the termination of his employment, including the allegation that his disability was a factor in the termination.

31The hearing before the Panel could not be completed because the applicant left the hearing without giving his representative instructions. The Panel indicated that the applicant could seek to bring the appeal back although he would have to explain the reasons for his behaviour.

32In his Application to this Tribunal, the applicant now says that there is a good faith explanation for his behaviour at the WSIAT. Assuming this to be true, it seems to me that the place to take this explanation is to WSIAT and not to this Tribunal. In particular, I agree with the respondent that to permit the Application to continue at this Tribunal would be an abuse of the Tribunal’s process because in effect, the applicant is seeking to appeal the finding of the ARO to this Tribunal when he had already started that appeal at the WSIAT.

33The remaining question is whether fairness considerations mean that the Application should continue notwithstanding my findings.

34In this case, the applicant had two opportunities in the workers’ compensation system to explain his case. The issue of whether the respondent accommodated the applicant with respect to the hours of work question was fully canvassed by the applicant at a hearing where he was present and represented and had a full opportunity to provide evidence and make submissions to a decision-maker who had the jurisdiction to decide the issue. The decision of the ARO may not have been correct and he may not have analysed the issue in the same way that the issue would be considered at this Tribunal. However in Figliola, the Supreme Court was clear that this is not a basis for a human rights tribunal to consider a matter that has already been dealt with by another tribunal. In my view, the considerations identified by the Court in Penner and by this Tribunal in Claybourn do not apply. Moreover, the applicant then engaged in the appeal process that was available to him under the workers’ compensation system to allow him to rectify any errors in the case as understood by the ARO. Having withdrawn from that process when it was underway, it is not appropriate to come to this Tribunal instead.

35The allegation that the applicant's disability was a factor in the decision to terminate his employment does not appear to have been considered by the ARO although according to the ARO’s decision, the reason for this was that the applicant did not at the time dispute the respondent’s explanation for the reason for the termination of the applicant’s employment. Accepting the applicant's assertion in the Application that the respondent’s explanation is not correct, it must also be accepted that the applicant provided his explanation of the circumstances of the termination in his testimony to the WSIAT Panel. The reason that the WSIAT Panel did not make a finding on this issue is that the applicant withdrew from that process.

Conclusions

36I find that the proceeding before the ARO was a proceeding within the meaning of section 45.1.

37I find that the decision of the ARO appropriately dealt with the substance of the Application as it relates to the allegation that the respondent discriminated against the applicant by not agreeing that he could work only part-time hours and that the applicant's disability was a factor that contributed to the decision to terminate his employment.

38Those allegations are accordingly dismissed under section 45.1 of the Code.

39The allegation that the applicant’s disability may have been a factor in the termination and that the alleged unsafe work practice was only a pretext was not explicitly dealt with by the ARO.

40However, the applicant pursued an objection to the ARO’s decision to WSIAT which was process in which he could raise that allegation. The applicant withdrew from that process after it was well underway.

41If the applicant has a good faith explanation for why he withdrew from the WSIAT process, the solution would seem to be to provide that explanation to WSIAT. Since the process at WSIAT was underway and since the WSIAT was dealing with the same issues as are raised in the Application, it would be an abuse of the Tribunal’s process to allow the Application to proceed.

42For these reasons, the Application is dismissed.