HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Saeed Iqbal

Applicant

-and-

Inscape Corporation

Respondent

DECISION

Adjudicator: David A. Wright

Date: July 31, 2009

Citation: 2009 HRTO 1189

Indexed as: Iqbal v. Inscape Corporation

APPEARANCES

Saeed Iqbal, Applicant ) On His Own Behalf

Inscape Corporation ) Brian P. Smeenk and ) Sara Parchello ) Counsel

1At the hearing of July 31, 2009, I gave the following oral ruling:

I do not need to hear from the respondent and am able to give my decision now.

This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant worked for the respondent INSCAPE. He was dismissed for poor performance. The applicant alleges that his dismissal, and a failure to grant him annual leave shortly before the dismissal constitute discrimination on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin and creed. The applicant is represented by the United Steelworkers of America (the “union”).

The issue before me is whether the applicant has proven that one of the prohibited grounds was a factor in his termination. The applicant believes that he was targeted by his supervisor, Mike Philp, and criticized for poor work performance when his performance was no different from that of his colleagues. The respondent states that the applicant was dismissed for poor performance after a process of progressive discipline. The alleged poor performance was the failure to carefully and accurately measure the parts that he was producing using various machines on various occasions over a period of time.

The Tribunal held an oral hearing on July 31, 2009. During the hearing, I heard evidence from the applicant, Mr. Philp, and Karen Brown, Director of Human Resources. The applicant called no witnesses other than himself, although he stated that he had been told by other employees that they agreed he had been targeted, although that they did not want to come forward in the Tribunal process.

Mr. Philp and Ms. Brown provided detailed written statements of intended evidence that they adopted during their oral testimony. I asked questions of all of the witnesses, and the applicant and the respondent’s representative cross-examined the witnesses called by the other side.

The applicant relies upon various factors upon which he asks me to draw the inference that race was a factor in his discipline, termination, and refusal of leave. The principal factors are:

(1) He worked for the respondent for some time and the criticism of his performance only began after Mr. Philp began supervising him.

(2) He received a raise that was recommended, he says, by his former supervisor.

(3) The respondent had intended to dismiss him in September of 2008, and had a letter of termination prepared and signed, but did not in fact terminate him after a meeting with him and the Union at which the respondent concluded that its employees required more training on the use of callipers.

(4) The Union grieved and the respondent denied the grievance.

(5) The letter of termination incorrectly states that on the date of the incident that led to his termination (the culminating incident), he was working on the forming machine rather than the blanking machine.

My task in resolving this Application is not to decide whether the respondent had just cause to terminate the employment of the applicant, or whether he in fact made errors in producing the parts in question. The issue is whether the applicant has met his burden of proof to show, on a balance of probabilities, that one of the prohibited grounds was a factor in the respondent’s actions.

I must make my decision based upon the evidence placed before me by the parties. I cannot rely upon the alleged statements of employees to Mr. Iqbal who did not give evidence before me.

Considering this evidence, I do not believe that the factors relied upon by the applicant give rise to an inference, on a balance of probabilities, that the prohibited grounds were a factor in the respondent’s actions. With regard to the lack of prior discipline, the applicant has not challenged Mr. Philp’s evidence that there were performance problems that did not lead to discipline in the period before he became a supervisor. As for the raise, the evidence is that his hourly rate was changed as a result of him demonstrating his ability to effectively work on the machines to which he was regularly assigned. With regard to the intended dismissal in September of 2008, I find that this supports the respondent’s case, in that it suggests that the respondent based its decisions on the objective evidence and not on one of the prohibited grounds. Finally, I accept the evidence of Mr. Philp that the dismissal letter contains an error in describing whether the applicant was forming or blanking, but that the culminating incident was that the applicant made defective vertical pedestal tops on the Amada machine.

The evidence does not establish on a balance of probabilities that any of the prohibited grounds were a factor in the respondent’s actions or in the applicant’s dismissal. Accordingly, the Application is dismissed.

Dated at Toronto, this 31^st^ day of July, 2009.