HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rebecca Butcher
Applicant
-and-
Muskoka Algonquin Healthcare and Services Employees International Union, Local 1 Canada
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Butcher v. Muskoka Algonquin Healthcare
WRITTEN SUBMISSIONS
Rebecca Butcher, Applicant
Nadia Halum, Counsel
Muskoka Algonquin Healthcare, Respondent
Christopher Sinal, Counsel
Service Employees International Union, Local 1 Canada, Respondent
Denis W. Ellickson, Counsel
INTRODUCTION
1This is an Application filed on June 22, 2016, 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 employment on the basis of disability.
2This Interim Decision addresses the Service Employees International Union, Local 1 Canada's (the "Union") request for early dismissal of the Application on the basis that the applicant signed a Memorandum of Agreement (the "Agreement") on March 11, 2016 that includes a full and final release with respect to the issues in dispute.
3The applicant filed a response to the request to dismiss the Application on September 20, 2016.
BACKGROUND
4The applicant commenced employment with the Muskoka Algonquin Healthcare (the "employer") on October 4, 2004 as a Registered Practical Nurse ("RPN"). The RPNs at the employer are represented by the Union.
5From at least 2009 to late 2011, the applicant acted as a Union steward. In December 2011, the applicant assumed a role as an Occupational Health and Safety Coordinator in the employer's Occupational Health and Safety Department. As that role was outside of the Union's bargaining unit, the applicant was required to resign from her position in the Union.
6The applicant began a medical leave on February 11, 2014. The applicant began requesting accommodations for her disability in the spring after commencing her leave. While it is the applicant's position that the employer failed in its duty to accommodate, the employer denies this and that it has discriminated against the applicant on the basis of her disability.
7On February 19, 2016, the employer's representatives met with the applicant to discuss her potential return to work and the applicant was offered a temporary part-time RPN position at the employer's Huntsville site.
8On March 11, 2016, the applicant attended an orientation session for her new position. During that session, an employer's Human Resources Business Partner presented her with an agreement to be signed by herself, the employer and the Union regarding the position. The Agreement was executed on that day.
9The employer specifies that the Agreement was necessary given that, among other things, the position had not been posted to members of the Union bargaining unit, the applicant was entering into the Union from a non-bargaining position and the applicant would not retain any seniority from her previous time as a Union bargaining unit member and union steward.
10The Union argues that the Agreement includes a full and final release of the issues in dispute between the parties.
11The applicant maintains that the purpose of the Agreement was to accommodate her within the workplace to a position that meets her permanent medical limitations and education. She submits that she did not enter into the Agreement to settle her legal matters and the literal and ordinary meaning of the Agreement does not demonstrate such an intention. The applicant argues that there is no language in the Agreement that releases the respondents from any legal claims or liability, including claims under the Code.
ANALYSIS AND DECISION
12The Agreement in question was executed for the following stated purpose: "to accommodate the employee within the workplace to a position that meets her permanent medical limitations and education". It was required in part because the applicant was accommodated by being reintegrated into a bargaining unit position from a non-unionized position without a competition. The agreement addresses the applicant's reclassification, effective March 9, 2016, confirms the applicant into the position without a requirement to post and confirms her compensation package, seniority and the service date with the hospital.
13The following clause is the most relevant to the request for dismissal:
Any and all payments are subject to the required statutory deductions. The employee agrees to indemnify and save the hospital harmless with respect to any claims which may be made upon the hospital in respect of the Employee's obligations in connection with the Agreement pursuant to the Employment Insurance Act, Income Tax Act and any other legislation. (emphasis added)
14In my view, the clause is clearly not a release of all claims related to the employer's duty to accommodate the applicant. It provides that the applicant will indemnify and save the employer harmless with respect to claims related to the applicant's obligations. The Agreement does not preclude the applicant from proceeding with her Application.
15I note that the Application does not appear to make allegations of discrimination with respect to employment because of disability against the Union. The applicant is directed to provide written submissions on what she is alleging the Union did (or failed to do) that amounted to a violation of the Code. The Union is directed to file response submissions.
Order
16For the above reasons, the Tribunal orders as follows:
a. The Union's Request to dismiss the Application as an abuse of process is denied;
b. The applicant is directed to file written submissions by October 21, 2016 on what she is alleging the Union did (or failed to do) that amounted to a violation of the Code; and
c. The Union is directed to file a written response to the Applicant's submissions within 14 days of the receipt of the submissions.
Dated at Toronto, this 14th day of October, 2016.
"Signed By"
Josée Bouchard
Vice-chair