Nuria Abdosh v. North York General Hospital, 2016 HRTO 1063

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nuria Abdosh

Applicant

-and-

North York General Hospital

Respondent

DECISION

Adjudicator: Naomi Overend

Date: August 10, 2016

Citation: 2016 HRTO 1063

Indexed As: Abdosh v. North York General Hospital

APPEARANCES

Nuria Abdosh, Applicant

Self-represented

North York General Hospital, Respondent

Harold Rolph, Counsel

introduction

1The applicant filed this Application on April 23, 2013 alleging discrimination in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, she alleges that the respondent failed to accommodate her request to adjust her break times to allow her to pray and unfairly targeted her for discipline.

2The applicant is a member of Ontario Nurses Association (“ONA”) and is subject to a Collective Agreement between ONA and the respondent. In addition to filing this Application, the applicant filed three grievances, which were consolidated and heard by a sole arbitrator. This Application was deferred on consent, at the request of the applicant, pending the conclusion of the grievance process. It was reactivated after the arbitrator, Dianne Brownlee, issued her Award on January 11, 2016.

3The respondents argue that this Application should be dismissed because the subject-matter of the Application has been appropriately dealt with in the grievance process. A preliminary hearing was held on July 21, 2016 to address the issue of whether to dismiss the Application under s. 45.1.

decision and analysis

4Although this Application deals largely with the alleged failure of the respondent to accommodate the applicant’s need for breaks in order to pray, it does also reference the imposition of “previous discipline.” The narrative of the Application briefly mentions an incident that took place in March 2013.

5In its Response, the respondent notes that the applicant was suspended for three days for the March 2013 incident. It further references two incidents that took place on October 28, 2013, and December 3, 2013, for which the applicant received a further suspension of five days. The applicant addresses these incidents in greater detail in her Reply.

6The Award deals with, at considerable length, the allegations that form the substance of the applicant’s allegations in this Application as set out above. It is clear from the Award that the applicant testified at the hearing and that the arbitrator considered her testimony, including the applicant’s belief that there was a connection between the imposition of discipline and her request for religious accommodation. It is also clear that the arbitrator considered the human rights aspects of the grievances. There is a specific reference in the Award to the anti-discrimination provision of the Collective Agreement.

7Section 45.1 of the Code states:

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.

8On the face of the Award, it has dealt with the substance of this Application. Specifically, Arbitrator Brownlee addresses the allegations that the respondent discriminated against the applicant by imposing discipline and failing to accommodate her need for breaks to pray. While the applicant disagrees with the arbitrator’s conclusions, and believes that ONA should have appealed the Award, it is not the role of this Tribunal to sit in review of the Award.

9The applicant’s written submissions, filed in advance of the preliminary hearing, address further matters that took place after her return to work at the respondent facility in February 2015. These allegations do not form part of this Application and cannot be considered at this juncture.

order

10In light of the above, it is appropriate for me to exercise my discretion under s. 45.1 to dismiss this Application.