In a recent interim decision, the Human
Rights Tribunal of Ontario declined to dismiss an application on
the grounds that the substance of the application was dealt with
via an ESA decision rendered on the same facts. The ESA
decision had previously denied the applicant termination and
severance pay under the ESA because of wilful neglect of duty.
In January 2013, the applicant advised her employer, TRQSS Inc.,
that she anticipated having childcare issues due to her mother
falling ill. On May 1, 2013, the applicant advised that she
required the day off because of these issues. The applicant also
did not attend work on the following two days. The applicant was
then informed that she would be considered to have resigned if she
did not come in to work on May 6, 2013. The applicant failed to
attend work on May 6, or the two days that followed. As per TRQSS
Inc.'s Attendance Policy, the applicant was deemed to have
voluntary resigned because of her continued absence.
On May 10, 2013 the applicant filed a complaint under the ESA
for the payment of her termination and severance pay. On February
5, 2014 an Employment Standards Officer determined that the
applicant was not entitled to termination and severance pay because
she had engaged in wilful neglect of duty.
The applicant had filed an application with the Tribunal on
January 22, 2014 alleging discrimination on the basis of family
status. TRQSS Inc. requested dismissal of that application pursuant
to section 45.1 of the Code.
The Tribunal found the substance of the application was not
"appropriately dealt with" in the ESA decision because it
did not address any human rights issues, and was concerned only
with the entitlement to termination and severance pay.
Specifically, the Tribunal mentioned:
the lack of references to the Code or any explicit principles
of accommodation in the decision;
the lack of discussion as to whether the respondent's duty
to accommodate was triggered when the applicant advised that she
anticipated childcare issues; and
the lack of discussion as to whether the Attendance Policy had
an adverse impact on the applicant.
While section 45.1 of the Code does permit dismissal where
another proceeding has appropriately dealt with the substance of
the application, this decision is another in a line of cases where
the Tribunal has deemed an ESA proceeding as insufficient to meet
the test. Other proceedings, such as civil actions or
arbitrations, may offer greater prospects for a successful
dismissal, as discrimination and harassment claims can be raised
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