Friday, 7 November 2014

ESA Complaint Found to Not Preclude Human Rights Application

While the Human Rights Code does provide a mechanism to prevent the relitigation of claims that may arise under a collective agreement or another statutory regime, it will not apply in all cases to prevent a claimant from making an Application to the Human Rights Tribunal of Ontario (the "Tribunal" or the "HRTO") based on the same or related circumstances.  Section 45.1 of the Code provides:
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.
The Tribunal's focus in these cases is on determining whether the other proceeding "has appropriately dealt with the substance of the application".  Mere overlap between the factual allegations will not suffice, unless the other matter has resolved the human rights aspects of the claim.

Recently, the Tribunal found that a claim of family status discrimination was not precluded by the employee having made a prior claim under the Employment Standards Act, 2000 (the "ESA").  In Bala v. TRQSS, Inc., the employee had advised her employer in January of 2013 that she anticipated having child care issues as her mother was becoming increasingly ill.  Although there was some discussion between employee and employer about the potential for trading shifts with other employees, it does not appear that any arrangements were put in place before the employee went on medical leave from mid-March until the end of April of 2013.  When the employee was supposed to return, she claimed one day of emergency leave to deal with child care, and was then absent for two more days.  The company advised the employee that she needed to attend work the following week or she would be deemed to have abandoned her position.  When she did not come to work for the first three days of the following week she was deemed to have resigned and her employment ended.

The employee made a claim to the Ministry of Labour for termination and severance pay under the ESA, but an Employment Standards Officer ("ESO") denied the claim, finding instead that the employee was disentitled as she had engaged in wilful neglect of duty.  She did not appeal the decision of the ESO to the Ontario Labour Relations Board.  The employee then brought an Application before the HRTO, alleging that she had been discriminated against on the basis of family status.  The employer asked the Tribunal to dismiss the application on the basis that it raised the same factual matters that had been addressed in the ESO's decision.

Following a summary hearing, the Tribunal rejected the employer's request to dismiss the Application.  The Tribunal noted that the remedial provisions of the ESA were not as robust as those found in the Code (at least in relation to orders to pay termination and severance pay), and that the ESO's decision did not reference the Code, the employer's duty to accommodate, whether the attendance policy was discriminatory, or any of the human rights issues that were raised by the Application.  Accordingly, it could not be said that the ESA claim had dealt "appropriately" with the "substance" (i.e., the human rights issues) of the employee's Application, and the matter should be allowed to proceed before the Tribunal.

While the Bala decision is fairly straight-forward on its face, it highlights an issue that employers should address when faced with a "proceeding" by an employee or former employee that may involve human rights issues, but which is not brought through the HRTO process.  Employers should ensure that any human rights claims are fully addressed in the initial proceeding, and dealt with effectively.  If the matter is resolved in a mutually acceptable manner, any settlement documentation should clearly address the fact that the human rights issues have also been fully and finally resolved.  Outside of these situations, arguing that a subsequent HRTO Application should be dismissed will be all but futile, and only serve to delay and drive up the costs of the litigation.

Do you have questions about procedure before the HRTO?  Wonder about the impact of various dispute resolution schemes on a claim?  Contact Lance Ceaser for advice and guidance.


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