Applicants Termination From Employment - Paper Example

BACKGROUND

[1] A hearing in respect of this Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, was held on September 6, 2016, in Windsor. The respondents failed to attend, and the hearing proceeded in their absence. The respondents subsequently asked that the hearing be rescheduled, a request that more properly was a request to re-open the hearing. The respondents request was denied for the reasons set out in Tribunal Decision 2016 HRTO 1410 (CanLII).

[2] The applicant began working for the respondent, Windsor Management (Windsor Management), on June 23, 2014. He was injured on the job on November 4, 2014. On February 6, 2015, while the applicant was on light duties, Windsor Management terminated his employment. The applicant alleges this was because of ethnic origin and disability. He advised he was not proceeding with his other allegations.

LEGAL PRINCIPLES

[3] The relevant provisions of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

10. disability means,

(1)(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device []

(3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.

[4] In order to be successful, the applicant in this case must show that it is more likely than not (i.e. on a balance of probabilities) that one or both of disability or ethnic origin were factors in his termination. See: Iqbal v. Inscape Corporation, 2009 HRTO 1189 (CanLII); Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (CanLII); and Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII). The applicant can establish that one or both of these Code grounds were factors in his termination either through direct evidence or circumstantial evidence (i.e. it can be inferred from the facts before the Tribunal). See Arias v. Centre for Spanish Speaking Peoples, 2010 HRTO 1818 (CanLII).

CONCLUSION

[5] I find the applicant has established on a balance of probabilities that the respondent discriminated against him on the basis of disability when it terminated his employment, but has failed to establish that ethnic origin was a factor in his termination from employment. My reasons for this conclusion follow along with my findings on an appropriate remedy.

EVIDENCE

[6] The applicant relied on oral testimony and various documents to establish his case. The respondents did not appear, and never confirmed before the hearing upon which documents they intended to rely at the hearing. This was despite the Tribunal delivering to the parties an August 24, 2016 Case Assessment Direction, in which it directed the respondents to file with the Tribunal hearing documents and witness statements by no later than August 31, 2016. I reviewed in advance of the hearing all of the documents filed with the Tribunal, including those attached to the Response. I admitted into evidence a number of documents, all of which were included in the applicants materials. Some of these appear to have been disclosed to the applicant as arguably relevant documents, although the respondents never provided the Tribunal with confirmation that they had disclosed any arguably relevant documents. I admitted some of the documents as exhibits on the basis that I found them to be contemporaneously-created records made in the normal course of business, and reliable for that reason.

Was Disability a Factor in the Applicants Termination from Employment?

[7] The applicant testified he signed an employment contract with Windsor Management in Tunisia on March 21, 2014. He, along with three Tunisian friends, M.E., M.M. and N.S., came to Canada on work permits on June 19, 2014, to work for Windsor Management.

[8] The applicant testified he had no issues at work until he was injured on November 4, 2014, when a closing rolling steel door struck him in the head as it descended.

[9] The applicant relied on a number of medical notes, all of which I entered into evidence. The first, dated November 6, 2014, stated he was to get neck and back x-rays prior to returning to work with restrictions. While he testified he was off work for one week, a second doctors note dated November 10, 2014, stated that, as of that point, he was unfit for work for one week, and then would return to modified duties. The note dated November 10 stated the applicant was seen for trauma to the head sustained at work, and subsequently developed back pain and was found to have a compressed fracture of the lumbar spine.

[10] The applicant testified he forgets a lot. He was not sure of dates, but he introduced a letter, dated November 18, 2014, that he wrote to Windsor Managements Human Resources Manager, Lynne Annis, with the help of a legal clinic he consulted, and which I marked as an exhibit. In that letter, the applicant set out the chronology of events that had occurred after his injury. I relied on this document for the truth of its contents, because it was drafted close in time to the events in question, and despite the applicants difficulty remembering dates, his testimony was generally reliable. In this letter, the applicant stated he returned to work on Monday but had problems with his back when turning, bending and reaching. The letter further stated he would return to work again on November 18, 2014, at Ms. Annis request, on the understanding that modified work in accordance with his functional abilities would be available for him.

[11] The letter stated further that the day after he returned to work, he went to the doctor who gave him a note to be off work for one month. The letter further stated that a colleague gave this note to Ms. Annis. However, the applicants testimony was that because of the pressure put on him to return to work he ripped up the doctors note that recommended he be off work for one month and got a note that said he should be off for one week. He later testified he was not certain he did tear up the medical note that recommended one month off.

[12] The applicant also testified Ms. Annis put pressure on him not to take a month off. He testified she and someone named Kathleen decided the applicant would be off for one week and that Ms. Annis would give him light duties when he returned to work.

[13] The applicant testified that on his return to work he was given light work in the assembly department, but his supervisor, Mr. Wiebe, pressured him to return to normal duties right up until the applicant was terminated. The applicant testified he got to the point where he ceased answering Mr. Wiebes inquiries about when he would return to regular duties, and told Mr. Wiebe he was giving medical notes to the administration. He testified Ms. Annis told him to rest whenever he needed to do so.

[14] The applicant produced two other medical notes, both dated December 23, 2014. One stated the applicant was unfit for work for two days. The other stated the applicant was to continue doing modified duties for two months until cleared by the neurosurgeon.

[15] The respondent terminated the applicants employment on February 6, 2015, along with the employment of N.S., a relative of the applicant. The applicant testified that when he asked why he was terminated, Ms. Annis told him they did not need him or N.S. to work for them anymore. The applicant testified that prior to his termination he received no criticism of his work, and his productivity was higher than anyone elses. The applicant further testified that another welder was terminated the day after he and N.S. were terminated, but that welder had lots of problems.

[16] The applicant relied on a seniority list with nine employees names on it, including two Canadians and seven Tunisians, which was marked as an exhibit. It is not clear how the applicant came to have this document in his productions. However, there was no dispute between the applicant and the respondents that the applicant and N.S. had the lowest seniority of the Tunisian workers on the list. This was confirmed in the Response. The applicant testified that the employee who was terminated the day after he and N.S. were terminated was not on this list, and was one year higher on the seniority list. The list also shows M.E. and M.M. just above the applicant and N.S.

Was the Applicants Legal Status as a Foreign Worker a Factor in His Termination from Employment?

[17] In the Response, the respondents took the position that they terminated the applicant and N.S. because of a slowdown in work and because they understood, at the time, that changes to the regulatory environment relating to foreign workers obliged them to reduce the proportion of foreign workers under their employment. In their view, under the Temporary Foreign Workers Program (TFWP), a maximum cap of 30% of foreign workers was put in place in September, 2014, which was further reduced to 20% in July, 2015.

[18] The applicant took the position that the 2015 reduced cap under the TFWP applied only to new workers, and that in any event the respondents position was not consistent with immigration policy and could not be used to justify the applicants termination.

[19] Documents from the applicants Workplace Safety and Insurance Board (WSIB) file also referred to the Francophone Special Benefit (FSB) program, through which the applicant was recruited by the respondent. This was a separate program to recruit Francophone workers, and was abolished on Septem...