Panic v. Joseph Brant Hospital, 2016 HRTO 1591

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Snezana Panic

Applicant

-and-

Joseph Brant Hospital

and Canadian Union of Public Employees, Local 1065

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: December 9, 2016

Citation: 2016 HRTO 1591

Indexed as: Panic v. Joseph Brant Hospital

WRITTEN SUBMISSIONS

Snezana Panic, Applicant

Wade Poziomka, Counsel

Joseph Brant Hospital, Respondent

Dolores Barbini, Counsel

1This is an Application filed on October 28, 2014, alleging 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”).

2The purpose of this Interim Decision is to address the requests filed by the respondent Joseph Brant Hospital (the “Hospital”) for dismissal of the Application as against it, dismissal of some of the allegations raised for delay, and for a summary hearing.

Background

3The applicant has been employed by the respondent Hospital since 2001, originally in the position of medical radiation technologist. The applicant experienced a work-related injury in 2003, and thereafter variously worked in a variety of positions on modified or accommodated duties. In 2010, the applicant was placed in a position in the fluoroscopy department as a result of a further workplace injury. The applicant continued in this position until August 30, 2014.

4The applicant alleges that on August 30, 2014, she was informed by the respondent Hospital that she would be moved out of the fluoroscopy department due to budget cuts and because there was not enough work available in the afternoons to keep her in her position.

5Prior to moving her out of her position in the fluoroscopy department, the respondent Hospital had engaged in communications with the respondent Canadian Union of Public Employees, Local 1065 (“CUPE”) about accommodating the applicant in a switchboard position. Up to August 30, 2014, the applicant’s positions at the respondent Hospital had fallen within the Ontario Public Service Employees Union (“OPSEU”) bargaining unit.

6CUPE agreed to the accommodation of the applicant in the switchboard position, but did not agree to allow the applicant to carry over her seniority in the OPSEU bargaining unit. A concern about the applicant’s ability to carry over her OPSEU seniority was raised with the respondent Hospital by OPSEU, to which the respondent Hospital replied that the objection to the applicant carrying over her seniority was coming from CUPE and not the employer, and that the employer would recognize her service. On September 16, 2014, the applicant received a letter from the respondent Hospital confirming her permanent accommodation in a regular full-time switchboard position commencing September 22, 2014, and stating that the applicant would begin to accrue seniority in the CUPE bargaining unit as of that date. No specific mention is made by the respondent Hospital in this letter to the applicant’s OPSEU seniority. The applicant signed the letter, but added that she did not agree that her OPSEU seniority should not be transferred to the CUPE bargaining unit as she believes this to be a violation of her rights under the Code.

7The Application form as originally filed identified only the Hospital as a respondent, although the schedule attached to the Application clearly raises allegations that both the Hospital and CUPE violated the applicant’s rights under the Code. The applicant subsequently sought to amend her Application to name CUPE as an additional respondent, which was granted by Case Assessment Direction dated March 5, 2015. CUPE was granted an opportunity to file a formal Response to the Application, and the applicant filed a Reply to CUPE’s Response.

8This matter proceeded to mediation on May 11, 2016, but was not resolved. Consistent with Tribunal practice, the respondent Hospital’s preliminary requests were deferred pending the result of mediation. I apologize for the delay in getting to this matter, which is entirely my responsibility.

Nature of issues raised in the Application

9Before proceeding to address the respondent Hospital’s requests, it is important to clarify the nature of the issues raised in this Application.

10There is no doubt that the Application alleges that both respondents discriminated against the applicant because of disability by refusing to allow her to carry over her OPSEU seniority to the CUPE bargaining unit. This is clearly articulated at paras. 30 and 31 of the schedule attached to the Application.

11However, in addition to that allegation, the issue arises as to whether there is another allegation raised in the Application regarding the applicant’s removal from her position in the fluoroscopy department as of August 30, 2014, namely whether the applicant could have been accommodated either in her home position or in another position within the OPSEU bargaining unit. This was clarified in the applicant’s Reply, where it is specifically alleged (at para. 9) that the respondent Hospital could have placed the applicant in her pre-injury position as a medical radiation technologist with limited accommodation, and that the Hospital’s alleged desire not to have the applicant on the payroll for that department does not rise to the level of undue hardship. The applicant also raises in her Reply (at para. 8) an allegation that the respondent Hospital failed to explore the possibility of training the applicant for a position within the OPSEU bargaining unit as was offered by the Workplace Safety and Insurance Board (“WSIB”) workplace transition specialist.

12While this allegation in my view could have been more clearly articulated and identified in the Application, it nonetheless has been raised by the applicant in the material filed in this matter and will be considered by the Tribunal.

The Hospital’s request for dismissal

13The Hospital’s request for dismissal of the Application as against it is premised on the only allegation raised by the applicant being the alleged refusal to allow her to carry over her OPSEU seniority to the CUPE bargaining unit. The Hospital is clear in its Response that at no time has it failed or refused to carry over the applicant’s OPSEU seniority, and that the Hospital has been and remains prepared to recognize the applicant’s OPSEU seniority as a member of the CUPE bargaining unit. The Hospital states that as of the time the Response was filed in January 2015, no issue had yet arisen regarding the application of the applicant’s seniority.

14That last statement is challenged in the reply filed by the applicant, in which she states that she was interviewed for a position in February 2015 and was informed by a member of the Hospital’s management that he did not know what the applicant’s seniority was as he had not heard from CUPE.

15In my view, this indicates that there appears to be conflicting evidence as to the extent to which the respondent Hospital in fact recognizes the applicant’s OPSEU seniority in her position within the CUPE bargaining unit. In my view, this conflicting evidence needs to be resolved on the basis of oral and documentary evidence at a hearing on the merits.

16In addition, as stated above, in my view the Application also raises an issue as to whether the applicant’s disability could have been accommodated either in her home position or, with training, in another position within the OPSEU bargaining unit. This is clearly an allegation raised against the respondent Hospital, which is not appropriately dismissed at this early stage of the proceeding.

17For these reasons, the respondent Hospital’s request for dismissal of the Application is denied.

Request for dismissal for delay

18The respondent Hospital also seeks dismissal of the allegations raised in the Application which pre-date the one year period prior to the filing of the Application.

19In the applicant’s Reply and Response to Request for Order, the applicant makes clear that the matters raised in the Application regarding events pre-dating the one-year period prior to the filing of the Application are included as history in order to provide context to the allegations of discrimination which are alleged to have occurred within the one-year period.

20As a result, I understand and confirm that the applicant is not seeking a finding from this Tribunal in relation to events that occurred more than one year prior to the filing of the Application, that these events give rise to a violation of the applicant’s rights under the Code. The issues that have been identified above in relation to the applicant’s ability to carry over her OPSEU seniority and the issue of whether she could have been accommodated either in her home position or, with training, in another position within the OPSEU bargaining unit rather than being transferred to a CUPE position are both within the one-year period, such that no issue of delay arises.

21As a result, it is not necessary for me to address the respondent Hospital’s request for dismissal due to delay.

Request for summary hearing

22The respondent Hospital also has filed a request for summary hearing. This request is denied. While the Tribunal is not required to give reasons for denying a request for summary hearing, I will briefly state, as I have indicated above, that the issue of the extent to which the respondent Hospital is prepared to recognize the applicant’s OPSEU seniority in her CUPE position is contested by the applicant and properly needs to be the subject of oral and other evidence at a hearing on the merits, and the accommodation issue is not appropriately addressed in the summary hearing context, as it too will require consideration of evidence.

Next steps

23This matter will now be placed in the Tribunal’s hearing queue for scheduling of a hearing date on the merits.

24I am aware that, at the time the respondent Hospital filed its Response, the Response was filed on the basis that the only issue raised by the applicant related to her ability to carry over her OPSEU seniority. As a result, the Hospital has not filed a Response on the accommodation issue. Accordingly, I am granting the Hospital a period of 35 days to serve and file its Response on the accommodation issue as set out above, which it shall do in the form of a Schedule B to its Response as originally filed. The applicant shall have a further 7 days to file her Reply, which she shall do by filing a Schedule B to her Reply as originally filed.

25I also note that the accommodation issue potentially engages the interests of OPSEU and its members. As a result, OPSEU shall be put on notice of this Application and shall be afforded an opportunity to intervene as a bargaining agent.

ORDER

26For the foregoing reasons, I hereby make the following order:

a. The respondent Hospital’s requests for dismissal of the Application as against it and for a summary hearing are denied;

b. It is not necessary to deal with the Hospital’s request for dismissal of some allegations raised in the Application for delay;

c. Within 35 calendar days of the date of this Interim Decision, the respondent Hospital shall serve and file its Response on the accommodation issue as described in para. 11 above, which it shall do in the form of a Schedule B to its Response as originally filed;

d. Within a further 7 calendar days, the applicant shall serve and file any Reply to the respondent Hospital’s Response on the accommodation issue, which she shall do by filing a Schedule B to her Reply as originally filed; and

e. OPSEU shall be put on notice of this Application and shall be afforded an opportunity to intervene as a bargaining agent.