Human Rights Tribunal of Ontario
Between:
Elizabeth Pilcicki Applicant
-and-
Sodexo Canada Limited Respondent
Interim Decision
Adjudicator: Maureen Doyle Date: November 15, 2017 Citation: 2017 HRTO 1497 Indexed as: Pilcicki v. Sodexo Canada Ltd
Written Submissions
Elizabeth Pilcicki, Applicant Self-represented
Sodexo Canada Limited, Respondent Reg Smart, Representative
1The applicant filed this Application on April 13, 2017, alleging discrimination in employment because of disability and alleging reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically, the applicant alleged that the respondent has not accommodated her disability at work.
2The respondent requests the early dismissal of the Application on the basis that another proceeding has appropriately dealt with the substance of the Application. The applicant filed a grievance on June 25, 2014 that alleged that the respondent employer had not accommodated her need for a change of shift hours in order to enable her to use public transit or get a ride home with a co-worker, as her husband was no longer well enough to drive her at night.
3The respondent submitted that the September 23, 2014 Minutes of Settlement wherein the parties agreed to certain hours of work for the applicant, indicates that "many of the issues…..were agreed to by the parties on September 23, 2014 regarding the issue of accommodation".
4The respondent also submitted that the Application should be dismissed because certain of the issues outlined in the Application are untimely and because the applicant failed to file grievances regarding the allegations she makes in the Application.
Decision
5Section 45.1 of the Code states:
45.1 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.
6The substance of the Application is that the respondent failed to accommodate the applicant's disability at work. The issue in the grievance was whether the respondent should change the applicant's shift hours in order to permit her to use public transit for her ride home, or obtain a ride with a co-worker, as her husband was no longer well enough to drive her in the evening. The Minutes of Settlement dealt with the issue of the applicant's shift, in light of transportation challenges she faced due to her husband's health.
7I do note that in her Application, the applicant has made mention of her request to change her shift hours in 2014, and indicates that it was "not resolved", requiring her to remain at work for an additional period after the end of her shift, for transportation reasons. The remainder of her Application contains allegations regarding the respondent's actions in the face of her stated need for accommodation commencing in June 2015, and include an allegation that the respondent employer advised her of its position in February 2017 that she was not working up to the Functional Capacity Evaluation done in June 2016, when she returned to work on January 3, 2017. In the circumstances, it seems that the reference to the 2014 request for a change of shift hours appears by way of background, and is not an allegation of discrimination on the basis of the applicant's disability.
8In my view, the Minutes of Settlement have not dealt with the substance of the Application because they did not address the question of whether the respondent employer has discriminated against the applicant on the basis of disability, by not accommodating her medical needs up to the point of undue hardship.
9For these reasons, the respondent's request to dismiss the Application under s. 45.1 is denied and the Tribunal will continue to process the Application.
Delay
10The Code identifies timely applications as those which are filed within one year of the last (or only) incident of discrimination by a person who believes that his or her rights have been infringed. All applications filed beyond that limitation period are subject to the requirements of section 34(2). Sections 34(1) and (2) of the Code read as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
11As to the respondent's assertion that there are allegations which are untimely, the last incident is an allegation of discrimination and is timely. The respondent has not indicated how or why it takes the position that allegations are untimely according to section 34, nor has it provided any specificity with respect to what allegations it submits are untimely. A review of the Application indicates that there may be some details provided by way of background, and there may be allegations which constitute a series of events. In the circumstances, the relationship between the last incident and each incident in the series and whether or not the applicant will be successful in advancing these allegations is a matter to be determined at the hearing on the basis of evidence and argument provided at the hearing. I do not dismiss any of the allegations at this stage on the basis of timeliness.
Other
12The Code places no obligation on applicants to have their union file a grievance on their behalf. The Application is not dismissed on the basis that the applicant did not file grievances regarding the allegations contained in the Application.
Direction
The Tribunal directs as follows:
(i) The Application is not dismissed on the basis that another proceeding has appropriately dealt with this matter;
(ii) At this stage, none of the allegations are dismissed as untimely;
(iii) The Respondent is directed to provide a substantive response to the Application within 30 days of this Interim Decision;
(iv) Since both parties agree to mediation, the Tribunal will schedule a mediation and advise the parties of the time, date and location of the mediation by Notice of Mediation.
13I am not seized of this matter.
Dated at Toronto, this 15th day of November, 2017
"Signed by"
__________________________________
Maureen Doyle Vice-chair