Istvan Kovacs v. Stone Straw Ltd., 2009 HRTO 1606

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Istvan Kovacs Applicant

-and-

Stone Straw Ltd. Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Jennifer Scott Date: October 6, 2009 Citation: 2009 HRTO 1606 Indexed As: Kovacs v. Stone Straw

APPEARANCES BY

Istvan Kovacs, Applicant ) On his own behalf Stone Straw Ltd., Respondent ) Brian Wasyliw, Counsel

Procedure

1This is an Application filed November 27, 2008, under section 53(3) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on August 24, 2005, and abandoned upon filing this Application with the Tribunal.

2The Case Resolution Conference (CRC) was conducted on July 7, 8, and August 6, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are nearly four years old by the time they reach the Tribunal. Istvan Kovacs gave evidence in support of his Application. The following witnesses testified on behalf of the respondent: Todd McQuay, customer service logistics manager; Albert Marshall, former president; Jaswinder Singh Rai, former plant and automation manager; Joyce Kricak, packer; and Lynda Tanner, director of human resources.

3During the second day of hearing, the applicant advised that he wanted his co-worker, Frank Resendes, to give evidence at the hearing. Mr. Resendes, a former employee of Stone Straw Ltd. (“Stone Straw”), was originally on the respondent’s witness list. Counsel for Stone Straw advised the applicant that he did not intend to call Mr. Resendes as a witness. The Tribunal advised the applicant that it would not require Stone Straw to call Mr. Resendes as a witness; however, the applicant could call Mr. Resendes in reply when the hearing reconvened on August 6, 2009. When the hearing reconvened on August 6, 2009, the applicant advised the Tribunal that he had spoken to Mr. Resendes and was not calling him as a witness.

Nature of the Dispute

4The applicant, Istvan Kovacs, claims discrimination in employment on the basis of disability pursuant to sections 5 and 9 of the Code against Stone Straw. The applicant alleges that his disability was a factor Stone Straw’s decision to terminate his employment on May 3, 2005.

Decision

5The Application is dismissed. What follows are my reasons.

Background

6Stone Straw manufactures plastic drinking straws for the food industry. The process for making the straws is fairly simple. Plastic pellets are melted into liquid form, pressed into a tube shape by an extruder machine and then cut into different lengths with a cutter machine. The straws can be wrapped with paper by a wrapping machine or left unwrapped. If the straws are wrapped, a small printer stamps the customer’s name on the wrapper and the edges of the paper are crimped.

7Stone Straw operates 24 hours a day, five to seven days a week. It is a highly competitive industry with a low profit margin on the product.

8The applicant commenced employment with Stone Straw on June 22, 2004, as a maintenance mechanic. He spent the first two to three weeks of his employment training for this position. The applicant’s main responsibility was to maintain the machinery used to produce the straws.

9On July 20, 2004, the applicant, while standing on a stool, fell and injured his back. He was off work for several days and returned to full-time hours on August 3, 2004, with the following restrictions from his family doctor: walking a short distance only; standing less than 15 minutes; sitting less than 30 minutes; no lifting floor to waist; no lifting waist to shoulder; no stair climbing and no ladder climbing. On August 9, 2004, his doctor modified the applicant’s hours to four hours per day with the same physical restrictions.

10On August 16, 2004, Stone Straw wrote to the applicant to set out his light duties based on the restrictions provided by his doctor. These duties consisted of labelling boxes, repackaging spoon straws and putting flex straws into bags. The applicant was told not to do anything that would contravene his physical limitations.

11The applicant continued to have problems with his back and some time in late August, he left work and remained off work for the next four months.

12In early January 2005, Stone Straw asked the applicant to be assessed by the company doctor. On January 28, 2005, the company doctor gave the opinion that the applicant could return to full-time work with the following restrictions: avoid heavy lifting; avoid repetitive bending and no prolonged standing and sitting. The applicant’s doctor supported this opinion on February 11, 2005, when he stated the applicant could return to full-time hours with restrictions.

13On January 31, 2005, the applicant returned to the workplace with the same restrictions as identified in August 2004, with the addition of no lifting over 10 pounds. He was given light duties, which included painting the lunchroom. The applicant was permitted to stand and sit at his own pace and other employees would move objects that had to be moved.

14Upon returning to work, the applicant was assigned small tasks. His first job was putting different sizes and colours of straws into two or three pouches. The applicant mixed up the colours of the straws and he corrected the error. He was then asked to staple together three sheets of paper and he made an error when completing this task. He was asked to correct this error.

15On February 3, 2005, the applicant received a warning letter from his supervisor, Mr. Rai, regarding the errors that had been committed when performing the light duty work. Mr. Rai believed the applicant was not listening to instructions. The letter contained the following paragraph:

It is important that you follow the instructions of the supervisors, plant manager or members of the team you are working with while we get you back to regular duties. Your actions will not be tolerated. This letter is a written warning that will form part of your employment file. Should you continue to act in this way further disciplinary action will be taken.

16For the rest of February and March 2005, the applicant continued to perform light duties and some mechanical work. He painted a new office in the warehouse area. When he had difficulty reaching high areas, he was given an extension stick. After that, he painted the lunchroom walls. The applicant built new safety guards made out of plexi-glass for the machinery. The plexi-glass sheets weighed 20 to 30 pounds and he was given assistance lifting them. The applicant also assisted Mr. Resendes in building an automatic straw machine. There were no complaints about his performance during this time.

17Sometime in April 2005, the applicant started to work nights. The respondent gave evidence that the applicant was assigned the night shift at his request. The applicant denied that he asked to work nights. The shift change is significant because it meant the applicant returned to his regular duties as a maintenance mechanic because there was no light duty work on the night shift. While on nights, the applicant was the sole maintenance person: when there were problems with the machines, he had to fix them. There was a general supervisor on the night shift.

18On April 20, 2005, the applicant received a further physical assessment that showed an improvement in his physical abilities.

19In late April 2005, problems developed with respect to the applicant’s approach to fixing the machinery. The applicant would shut the machinery down in order to make a more permanent repair. Stone Straw disagreed with the applicant’s approach because shutting down the machinery also shut down production. Mr. McQuay and Mr. Rai, the maintenance supervisor, testified that only Mr. Rai had the authority to make the decision to shut down a machine to make a significant repair.

20On Friday, April 29, 2005, Mr. Rai and Mr. McQuay met with the applicant. Mr. Rai advised the applicant that his performance was poor on the night shift and that people on the various shifts were recommending that more training was required. Mr. Rai reviewed the performance issues with the applicant and gave him a letter, signed by him and dated April 28, 2005, summarizing the problems as follows:

(a) On Sunday, April 24, 2005, during your shift, you took apart the TDL wrapper and left at the end of your shift without advising the on-coming maintenance person of the situation. This resulted in the day shift maintenance person applying 3-4 hours, under my supervision, to get his machine operational. The machine simply needed the gear box adjusted and should not have been disassembled. Your actions in this situation resulted in lost production which ultimately has an adverse effect on Stone Straw and its employees.

(b) On Tuesday, April 26, 2005 there was a situation with the DQ wrapper where you were trying to adjust the print so you put in a new stamp, which was not necessary. Merely adjusting the print pressure, which took me one minute to do, is all that was required. The impact of your actions caused poor quality product which was shipped to the customer as well as loss of production.

(c) Again, on Wednesday, April 27, 2005 you shut down the Subway wrapper at 1:45 a.m. and proceeded to work on the ink tray. When you left your shift at 8:00 a.m. this wrapper was not working and it took another maintenance person less than one half hour to fix it.

(d) During the week of April 28, 2005, in the presence of Butch Thompson, it was made very clear to you that if you take a machine apart you must make sure you can fix it. You were further told that if you don’t know how to fix a machine you are not to take it apart. The exception to this, as you were also told, is the A & W Tetra machine which you are not to touch at all because of its complexity.

21After reviewing his performance, the applicant was advised that he would be returning to the day shift the following Monday (May 2) to receive more training. On the day shift, the applicant would work 9:00 a.m. to 5:00 p.m.

22The applicant conceded that none of the performance issues raised in the April 28, 2005 letter related to his disability or a failure to accommodate his back injury. He testified that the repairs involved small parts with no heavy lifting. He said he was able to handle these tasks.

23The applicant felt harassed by being written up for the performance problems. He stated that Mr. Rai told him he didn’t know what he was doing. Mr. Rai agreed that he told the applicant that he did not know what he was doing. This comment was made in relation to the applicant’s ability to fix the machines.

24Prior to meeting with the applicant the morning of April 29, 2005, Mr. Rai received a further complaint about the applicant’s work performance by a fellow employee, Joyce Kricak. Ms. Kricak had called the applicant over to the spoon straw machine because it was not cutting the ends of the straws properly. While Ms. Kricak could not remember the exact words used by the applicant, he said something to the effect of “I don’t know” and “who cares”. He then put his hand up in the air and walked away without making any effort to fix the machine or find someone else that could. The applicant denied that he said “who cares”.

25On April 29, 2005, Mr. McQuay contacted Lynda Tanner, the director of Human Resources, to inform her about the issue with the spoon straw machine. Ms. Tanner met with Ms. Kricak later on that day. Mr. Marshall was not in the office when Ms. Tanner met with Ms. Kricak.

26The applicant did not return to work at 9:00 a.m. on May 2, 2005. Mr. Rai called the applicant at his home at 9:10 a.m. Someone answered the phone, but hung up when Mr. Rai identified himself. Mr. Rai called back and left a message with the applicant to meet with him the following day at 8:00 a.m.

27At some point during the morning of May 2, 2005, Mr. Marshall found out about the incident with the spoon straw machine the previous Friday (April 29). He contacted Ms. Tanner by electronic mail at 2:46 p.m. on May 2, 2005. Mr. Marshall was extremely concerned with the applicant’s response to Ms. Kricak. He advised Ms. Tanner that Stone Straw was at risk of losing business because it was short of product and the line had to run. Mr. Marshall made the decision to terminate the applicant because he did not believe the applicant had the skills that he represented to Stone Straw, was suited to the position or had the appropriate attitude. Ms. Tanner prepared the termination letter.

28Around 4:00 p.m., Mr. Marshall received a phone call from the applicant advising him that he was going to see a specialist and would not be back to work until he did. Mr. Marshall asked whether he was seeing his doctor because of his back. The applicant told Mr. Marshall that it was because of the letter he had received from Mr. Rai the previous Friday. The applicant advised Mr. Marshall that the letter was putting pressure on him.

29The applicant went to his doctor on May 2, 2005, because he was upset at being “written up” by Mr. Rai. He obtained a note from his doctor that he was unable to work and was referred to a specialist. The applicant mailed the note to Stone Straw.

30On May 3, 2005, the applicant’s employment was terminated by letter of the same date. Stone Straw did not have the doctor’s note at the time the termination letter was sent.

Alleged Discrimination

31The applicant alleges that Stone Straw’s decision to terminate his employment was influenced, in part, by his disability.

32The applicant submits that after he returned to work in late January 2005, Stone Straw became extremely critical of his work performance and began harassing him and blaming him for problems that were not his fault.

33It appears from the evidence before me that Stone Straw was overly critical of the applicant’s performance of his light duty work when he first returned to work after his four-month absence. A disciplinary letter was sent within days of his return to work when he failed to put the correct colours of straws in the right pouches and when he failed to correctly staple sheets of paper together. The reaction of Stone Straw seems to be out of proportion to the applicant’s errors. It is understandable why the applicant connects his absence from work to the criticisms of his work performance.

34However, after the disciplinary letter of February 3, 2005, the applicant completed light-duty work for the next two and one-half months without incident. It is only when the applicant returned to his mechanic’s duties in early April that issues arose again with his work performance.

35The applicant asserts that there were no problems in completing his mechanic’s duties before his injury. However, the applicant was in training for two or three of the four weeks of employment before his accident. The first time that he performed the mechanic’s duties on his own was when he went on the night shift in April 2005.

36The applicant testified that he told Mr. Rai that he did not want to go on the night shift. Mr. Rai testified that the applicant asked to go on the night shift for personal reasons. This is reflected in Mr. Rai’s letter of April 28, 2005 to the applicant where he stated:

You requested to be placed on the night shift for some personal reasons and while I was willing to accommodate your request, I find that at this point that is not possible. Therefore, effective Monday, May 2, 2005 you will return to your regular day shift position.

37I find that the applicant asked to go on the night shift. There would be no reason for Mr. Rai to state this in his letter except to inform the applicant that he was no longer agreeing to his request to work nights. Mr. Rai had the right to change the applicant’s shifts. Had the applicant not made that request, Mr. Rai would simply have informed the applicant of the shift change.

38Various issues were raised in relation to the applicant’s performance of his mechanic’s duties on the night shift. The issue before the Tribunal is whether these issues were raised, at least in part, as a pretext to terminate the applicant’s employment because of his lengthy absence from work following his back injury. The applicant does not assert that the performance problems related to his disability or a failure to accommodate his disability.

39I find that the performance issues raised by Stone Straw were legitimate and were not raised as a pretext to terminate the applicant because of his four-month absence from the workplace. After the applicant returned on January 31, 2005, and received his first disciplinary letter on February 3, two and one-half months passed without incident. The performance issues arose in April 2005 when the applicant began to perform his regular duties as a maintenance mechanic while on the night shift. This was really the first time that the applicant performed his regular duties on his own.

40When it became clear to Stone Straw that the applicant was not able to properly maintain the equipment without affecting production, a decision was made to provide him with more training. This is reflected in its letter of April 28, 2005. However, when the applicant refused to fix the machine on Ms. Kricak’s line the morning of April 29, 2005, a decision was made the following Monday to terminate the applicant’s employment. The applicant was terminated because Stone Straw did not believe he had the skills or the attitude to do the job. I find that the applicant’s absence from work because of his injury did not play a role in this decision.

41As a result of my findings, the applicant’s complaint that he was terminated because of his disability is dismissed.

Order

42In light of the above conclusions, I do not find a violation of sections 5 and 9 and of the Code by the respondents. This Application is dismissed.