Marty Leck v. Coca-Cola Refreshments Canada Company, 2015 HRTO 915

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marty Leck

Applicant

-and-

Coca-Cola Refreshments Canada Company

Respondents

-and-

United Food and Commercial Workers Union Canada, Local 175

Intervenor

Interim decision

Adjudicator: Leslie Reaume

Date: July 13, 2015

Citation: 2015 HRTO 915

Indexed As: Leck v. Coca-Cola Refreshments Canada Company

WRITTEN SUBMISSIONS

Marty Leck, Applicant

Self-represented

Coca-Cola Refreshments Canada Company, Respondent

Andrew Zabrovsky, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services because of disability.

2On June 1, 2015, the Tribunal delivered the Response and a Notice of Intent to Defer advising the applicant that it may be appropriate to defer consideration of his Application pending the resolution of a grievance dealing with the subject-matter of his Application.

3The applicant filed a submissions in response opposing deferral because he believes that the union and employer have delayed the resolution of his grievances. He states that the employer is not engaged in good faith negotiations within the grievance process to address his accommodation needs and return him to work.

4I have reviewed the materials filed by the parties and have summarized the applicant's allegations. The applicant was injured on the job in September 2012. He was cleared to return to work in October 2012, and initiated a request for accommodation with his employer. In January 2013, the applicant was sent on a delivery which was inconsistent with his restrictions to avoid heavy lifting down stairs. He was suspended for three days when he returned the product to the plant after discovering that there were stairs involved in the delivery. When he returned from his suspension, he resumed working within his prescribed restrictions. The applicant states that throughout this period he was following his restrictions but his employer had failed to institute an accommodation plan.

5In May 2013, the applicant was sent on another delivery call involving stairs. He was advised by his supervisor that if he could not perform the delivery he should not report to work. The applicant's doctor wrote follow-up letters supporting his need for accommodation. At some point in late November or early December 2014, the applicant was contacted by human resources to discuss his accommodation needs. In February 2015, the applicant was asked to attend a meeting where he was advised that he was being terminated with a separation package in a non-disciplinary termination.

6The respondent denies the applicant's allegations of discrimination. The Response contained a request that certain allegations be dismissed for delay and that the Application be deferred pending the outcome of the grievance process. On February 14, 2013, the union filed a grievance on behalf of the applicant relating to the three-day suspension. A second grievance was filed on May 9, 2014, alleging that the respondent failed to accommodate the applicant within his restrictions and sent him home. A third grievance was filed on March 13, 2015, in relation to the attempt to issue a non-disciplinary termination. On May 6, 2015, the union sent a letter to the respondent advising that it was referring the applicant's grievances to arbitration. The grievances have not been resolved and the arbitration is scheduled to commence on September 3, 2015.

7Under Rule 14.1 of the Tribunal's Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. Deferral of an application ensures that proceedings dealing with the same or similar issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

8While deferral is not automatic simply because the parties are engaged in another proceeding, deferral does not require that the other proceeding deal with precisely the same legal issues as raised in the human rights application. The Tribunal will generally defer an application where the parties are involved in a grievance proceeding which is intended to deal with the issues raised in the Application.

9The grievances appear to relate to the same circumstances giving rise to the Application before this Tribunal. The grievances allege a failure to accommodate and the arbitrator, is empowered to deal with the applicant's human rights allegations. The arbitration is scheduled to commence on September 3, 2015. It is therefore appropriate to defer this matter until the arbitration proceeding has come to a conclusion.

Direction

10The Tribunal makes the following directions:

a. For the reason set out above, the Tribunal defers consideration of the Application pending the conclusion of the grievance process. Where a party wishes to proceed with an application that has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

11I am not seized.