Labour arbitrators have jurisdiction to interpret, apply Ontario human rights rules: tribunal
The Ontario Human Rights Tribunal of Ontario has dismissed a worker’s application alleging discrimination on the basis of disability because the matter was already dealt with by a labour arbitrator.
The application, initially filed by the worker on June 3, 2022, claimed that Hydro One Networks, the operator of the high voltage electricity transmission grid in Ontario, failed to accommodate his disability following a workplace injury in 2015. Strom's employment was terminated in September 2022, and he alleged that his disability and the subsequent actions of Hydro One violated the Ontario Human Rights Code.
The worker was initially hired in 2008 and held different positions with Hydro One. After multiple layoffs, Hydro One eventually hired the worker for a full-time position.
On Sept. 21, 2015, the worker suffered a workplace injury for which they received workers’ compensation benefits. The worker eventually returned to work, although they filed additional claims which were denied.
According to the worker, they applied for various positions after being laid off as a form of accommodation, but Hydro One consistently overlooked them “in favour of people who were less qualified and had less seniority.” This prevented the worker from returning to work when they were able, the worker said.
Remote work
The worker was appointed to the position of field support clerk in August 2019. The position was based in Barrie, Ont., and the worker went to the office on a regular basis, despite living in Fort Frances, Ont., which was about a 15-hour drive from Barrie. After the pandemic hit in March 2020, the worker started working from home full-time under Hydro One’s health and safety measures.
In April 2022, Hydro One announced a hybrid work policy and the worker advised that they were unable to return to in-office work, providing medical documents to support it. Hydro One allowed the worker to continue working from home while it reviewed the medical information.
On May 31, the employer told the worker that the return-to-office plan would be available shortly and it had properly accommodated them. In addition, if they failed to attend at the workplace, Hydro One would deem the worker to have abandoned their position and terminate their employment.
The worker responded that it was unfair due to the distance and the worker and shown they were capable of performing their duties remotely. They stated that they would file a human rights complaint alleging Hydro One failed to accommodate their injuries.
The worker didn’t report for their designated in-office days, so Hydro One terminated their employment. In September, the union filed a grievance claiming that the employer terminated the worker’s employment without cause and in violation of their human rights.
No discrimination: arbitrator
The grievance went to arbitration and the arbitrator reached a decision in February 2023, finding that the worker’s disability and family status weren’t factors in their termination, as the worker was terminated for failing to report for work “and for no other reason.” The arbitrator also determined that Hydro One met its duty to accommodate and it wasn’t required to accommodate the worker’s “wants or desires,” just their “needs and restrictions.”
The arbitrator also reviewed the worker’s human rights application and said that the allegations “are essentially the same as the complaints raised” in the grievance.
The tribunal was tasked with determining whether to dismiss the application based on s. 45.1 of the code, which allows dismissal if another proceeding has "appropriately dealt with the substance of the application." It referred to four elements to be considered – were the issues in the application decided in the other proceeding, did the adjudicator in the other proceeding have jurisdiction, did the applicant have the opportunity to meet the case, and would it be unfair to dismiss the application in the circumstances.
The tribunal found that the arbitrator's decision substantially covered the human rights issues presented in the worker’s human rights application. The arbitrator had concluded that the worker’s disability wasn’t a factor in their termination, which instead was due to their failure to report to work at the assigned location. The arbitrator also found that Hydro One had fulfilled its duty to accommodate the worker’s needs as required by the code.
Re-litigation potentially unfair
The tribunal noted that the arbitrator had jurisdiction to interpret and apply the code and that the arbitration process was conducted fairly, with the worker being given opportunities to present their case. The decision by the arbitrator to dismiss the grievance was found to have been appropriately handled and in line with the procedural fairness expected in such cases.
As a result, the tribunal concluded that re-litigating the issues would be unnecessary and potentially unfair to the parties involved. Consequently, the worker's application was dismissed under s. 45.1 of the code.
This decision underscores the tribunal's application of issue estoppel, a legal doctrine preventing the re-litigation of issues that have been already adjudicated in another forum. The tribunal emphasized that its role is not to serve as a venue to appeal arbitration decisions but to ensure that matters of human rights are fairly and appropriately resolved within the scope of the code.
