Abul Chowdhury v. Hilton Toronto, 2015 HRTO 247

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abul Chowdhury

Applicant

-and-

Hilton Toronto

Respondent

INTERIM DECISION

Adjudicator: Eli Fellman

Date: February 27, 2015

Citation: 2015 HRTO 247

Indexed as: Chowdury v. Hilton Toronto

1This is an Application filed on November 18, 2014 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleges discrimination in employment on the basis of race, colour, ethnic origin and creed, and reprisal. The applicant’s allegations include that he was subjected to harassment in the workplace, and that he was also subjected to discrimination when he was disciplined and when his employment was terminated. This Interim Decision deals with the respondent’s request in its Response that the Tribunal defer the Application pending the completion of a related grievance proceeding.

2The applicant has filed three separate grievances through his union, UNITE HERE, Local 75 (‘Union’). The first grievance was filed on October 15, 2012 and alleges that he was unjustly suspended for five days. The second grievance was filed on October 11, 2013 and alleges that the applicant was subject to “prejudice, harassment and discrimination . . . [contrary] to the Human Rights Code.” A third grievance was filed on November 21, 2013 alleging unjust termination of employment. The Union and the respondent have agreed that all three grievances should be heard together by a single arbitrator. The arbitration has been scheduled for August 19, 2015. The Union has been given notice of the Application but has not asked to intervene.

3The respondent requests that the Tribunal exercise its power under section 45 of the Code and Rule 14.1 of the Tribunal’s Rules of Procedure because all of the allegations contained in the Application will be addressed in the grievance arbitration process. The respondent notes that the issue of alleged Code violations has been raised in the grievances, and labour arbitrators may interpret and apply human rights statues as part of a full hearing pursuant to section 48(1) of the Labour Relations Act.

4In his Reply to the Response, the applicant does not dispute that this Application and the grievances address common issues but objects to the request to defer the Application because he claims the Union has demonstrated an absence of good faith by failing to proceed with the arbitration in a timely manner and it is unreasonable to have to wait a further six months for the arbitration hearing to begin.

5The Tribunal may defer consideration of an application, on such terms as it may determine (Rule 14.1). The Tribunal has stated that 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 claims of discrimination brought before it.

6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal notes 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. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

7In this case, it is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievances. I am satisfied that the circumstances of the present case do not justify a departure from the Tribunal’s normal approach. While I understand that the applicant is frustrated by the pace of the grievance process, the matter is still live and the grievances are scheduled for arbitration.

8If the applicant believes, on conclusion of the grievance process, that the substance of this Application has not been appropriately dealt with, he may ask to have his Application brought back on before the Tribunal. The Application will therefore be deferred pending the completion of the grievance process.

9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

10The respondent’s request to add the Union as an Intervenor will be dealt with by the Tribunal if the Application is brought back on.

11I am not seized of this matter.