The Ontario Human Rights Tribunal issued a decision last week that caused my eyebrows to raise ever so slightly. The decision involved an application for reconsideration of an earlier decision in which the Tribunal dismissed a complaint under Section 45.1 of the Code. That is the section that allows the Tribunal to dismiss a human rights complaint when another tribunal has already dealt with the substance of the human rights complaint.
It’s not last week’s reconsideration decision that provoked a brow movement, but the original Tribunal decision. It ruled that a decision by the OLRB finding the employer violated various sections of the ESA has dealt with the substance of the human rights complaint, and therefore it dismissed the human rights complaint.
What’s somewhat peculiar about this case is that no human rights issue was raised before the OLRB (as far as I can tell), nor was any human rights remedy ordered.
Should it matter when relying on Section 45.1 to dismiss a human rights complaint whether human rights issues were actually considered by the other tribunal?
Basic Facts in Shi v. Holcim (Canada)
The employer announced that the employees in the tax group would be required to work as much OT as necessary to meet certain end of year deadlines, including working weekends and for 12 straight days. Shi said she had family responsibilities, and couldn’t work all of the hours required, including the weekend work, although she did offer to work from home. The ESA allows a maximum of 48 hours work in a week (Section 17) and 8 hours in a day, Section 18 requires that employees be given 24 hours off work each work week, so 12 straight days of work is illegal too.
After Shi complained about the hours, she was dismissed with notice for “not being a good fit”. Shi filed two complaints, one alleging a violation of the ESA provisions prohibiting reprisals for insisting that the employer comply with the ESA, and the other under the HRC alleging that the imposition of long overtime hours and unusual weekend work constituted constructive discrimination on the basis of family status, marital status, and an illegal reprisal for complaining about the human rights violation.
The ESA Complaint Succeeds
The Ontario Labour Relations Board found a violation of Section 74 (the no ‘reprisals’ section’), deciding that the employer had failed to establish that its reasons for dismissing Shi were unrelated to concerns she raised about the unlawful requests to work hours beyond the ESA limits. It also found that the employer had failed to pay overtime for some 15 hours of OT worked by the employee in violation of Section 22. There is no consideration in the OLRB decision about whether the requirements to work weekends and long overtime periods amounted to constructive discrimination under the Human Rights Code.
Human Rights Complaint Dismissed
Under Section 45.1 of the Code, the Tribunal can dismiss a complaint if: “another proceeding has appropriately dealt with the substance of the complaint.” The Tribunal, citing a case called Gomez v. Sobey’s, noted that this section permitted the Tribunal to dismiss a complaint when the “reasons in the other decision dispose of the human rights issues before the Tribunal”. In Gomez, an arbitrator had considered in detail whether the Code had been violated, and the Tribunal therefore found that a Section 45.1 dismissal was warranted.
In the case of Shi, on the other hand, the OLRB did not consider at all whether the Code had been violated. The discrimination issue did not come up. The OLRB focused on whether the ESA’s reprisal section had been violated. Nevertheless, the Human Rights Tribunal dismisses Shi’s complaint under Section 45.1, finding that the OLRB had dealt with the substance of the human rights complaint:
I find that the Application should be dismissed pursuant to section 45.1. In both the OLRB proceedings and the Application, the applicant raised concerns about the amount of overtime, where she would work that overtime and alleged that she was terminated for raising these concerns. It is clear from both the August 2011 OLRB decision and the November 2011 OLRB decision that the same facts and same issues were at play in those proceedings as raised in the Application. The OLRB heard evidence and rendered decisions which, in my view, appropriately dealt with the substance of the issues in this Application.
Issues for Discussion
What do you think of that reasoning?
Did the OLRB deal fully with the “issue” of whether a demand by the employer to work excessive amounts of overtime and weekends constitutes a violation of Section 5 and/or Section 11 of the Human Rights Code because it adversely effects workers with family responsibilities?
Even if it did not consider whether the employer had violated the Code, is it enough that the factual basis of both complaints overlap?
Is it enough to dismiss a complaint under Section 45.1 of the Code that most of the remedies sought under the human rights complaint have, or could have been, ordered by the OLRB, even though the OLRB never considered the Code?
On this last point, note that Section 104 of the ESA grants an employment standards officer and the OLRB authority to reinstate an employee dismissed in violation of Section 74 (Reprisal). Therefore, since the OLRB had authority to order damages for violations of the ESA, including reinstatement, does that mean that there is nothing left that the Human Rights Tribunal could order, beyond what the OLRB could grant Shi? [Consider the remedial powers of the Human Rights Tribunal (in Section 45.2)]