Mayta v. Canada Lands Company, CLC Limited, 2009 HRTO 1613

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isidoro Mayta

Applicant

-and-

Canada Lands Company, CLC Limited and Doris Bradley

Respondents

AND B E T W E E N:

Isidoro Mayta

Applicant

-and-

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW Canada), Local 4271

Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Kaye Joachim

Date: October 7, 2009

Citation: 2009 HRTO 1613

Indexed as: Mayta v. Canada Lands

AppearanceS BY

Isidoro Mayta, Applicant ) Ernest Guiste, Counsel

Canada Lands Company, CLC Limited ) Michael Kennedy, Counsel

and Doris Bradley, Respondents )

National Automobile, Aerospace, Transportation )

and General Workers Union of Canada ) Lewis Gottheil, Counsel (CAW Canada), Local 4271,Respondent ) )

Introduction

1These Applications were filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”).

2The applicant was employed in the 360 Restaurant located at the CN Tower, owned by Canada Lands Company, CLC Limited (the “employer”) and is a member of the Canadian Auto Workers (Canada), Local 4271 (the “union”). He self-identifies as a visible minority whose second language is English and as a person with a disability.

3The applicant began employment with the employer in 1995. In 2002, he was diagnosed with a medical condition affecting the kidneys. Since 2003, he has been dependent on dialysis treatments three to four times per week.

4The applicant alleges that after he advised the employer of his illness, he experienced harassment and discrimination. In particular, he alleges that the General Manager, Doris Bradley, unfairly scrutinized and criticized his work, disciplined him, and generally harassed him because of his disability. In addition, the respondents failed to accommodate his disability-related needs by providing appropriate shifts. He alleges that his employment was terminated on September 14, 2006 because of disability.

5The employer denies that the applicant was treated differently because of disability and asserts that criticisms and discipline were justified by the applicant’s conduct. The employer also asserts that the applicant’s disability-related needs were accommodated.

6The applicant filed a grievance with the union challenging his termination. He asserts that the union supported White members of the union in similar circumstances, but did not properly investigate and refer his grievance to arbitration. The applicant also asserts that the union contributed to the employer’s failure to accommodate his needs in May 2006 and thereby became a party to the employer’s employment discrimination.

7The union denies that the applicant’s race, ethnic origin and/or disability were factors in the manner it investigated the applicant’s termination grievance or in its decision not to refer the grievance to arbitration. The union denies that they participated or contributed to any failure to accommodate the applicant’s disability.

Withdrawal of the Union Application

8In an earlier Interim Decision 2009 HRTO 827, I restricted the applicant’s ability to challenge certain findings of fact made by the Ontario Labour Relations Board. This effectively restricted the Union Application to the applicant’s allegations that he was aware that the union had provided better treatment to White employees who had been terminated by the employer. The applicant sought reconsideration of my decision to restrict the allegations against the union which I denied at the start of the hearing on September 10, 2009. The applicant called two witnesses, Lisa Mayta and Ron Smith before abruptly deciding to withdraw his Application against the union. The withdrawal was confirmed and the union did not participate any further in this proceeding.

The Employer Application

Procedural Rulings

9I heard from the following witnesses over the course of three days of hearing: Isidoro Mayta, Lisa Mayta, the applicant’s wife, Doris Bradley, General Manager and personal respondent, Neil Jones, Director of Operations and Christine Walterhouse, VP of Human Resources.

10On September 18, 2009, the applicant made a motion that I recuse myself based on a reasonable apprehension of bias because of comments I made during the cross-examination of the applicant and because of my Interim Decision. During the cross-examination of the applicant, counsel for the employer put to the witness that he was well aware that the employer had serious concerns about the applicant’s performance shortly before his dismissal. I directed the counsel to move along, as it was unlikely that he would get the applicant’s agreement to that assertion. In my view, the applicant’s agreement to that question was irrelevant as the applicant’s recent discipline record was in evidence and I felt the question was argumentative. Applicant’s counsel also referred to a comment I made to the effect that the applicant had portrayed himself as discipline-free and noted that this was not the applicant’s evidence.

11The applicant asserted that the above two comments, combined with my Interim Decision restricting the applicant’s ability to challenge certain findings of fact made by the Ontario Labour Relations Board, called into the question my impartiality.

12In my view, the above comments and Interim Decision do not give rise to a reasonable apprehension of bias on my part.

The Evidence

13Although the applicant asserted in his original complaint to the Ontario Human Rights Commission filed in 2006 that the harassment by Ms. Bradley began in 2003 and that his complaints to Human Resources went unheeded, at the hearing, I heard no evidence about the 2003 to 2005 period or any evidence of complaints to Human Resources. There was also an allegation in the complaint that Ms. Bradley purposely assigned him to smaller sections because of his disability, but this allegation was not pursued. There was a further assertion that the employer declined to provide him with an appropriate shift schedule to accommodate his disability in the summer of 2006 but this was also not pursued.

14At the hearing, the applicant testified about two aspects of discrimination. First, from late 2005 to 2006, the employer refused to permit him to switch shifts with co-workers on Saturdays when he experienced particularly serious after-effects from dialysis. Second, the termination of his employment was related, at least in part, to the applicant’s disability and/or need for accommodations.

Shift Changes

15The applicant testified that from 2003 to late 2005, he had no difficulty in switching shifts with co-workers when, following dialysis, he did not feel well enough to attend work. However, in late 2005, Ms. Bradley frequently refused to permit the applicant to switch shifts on Saturdays and told other employees not to switch shifts with the applicant. He did not specify any dates or times. Ms. Bradley denied ever refusing the applicant permission to switch shifts for disability related reasons, and could only recall refusing the applicant one shift change. On that one occasion, the applicant did not indicate that the need for the change was because of his disability.

16The applicant did not call any of the co-workers who allegedly were told not to switch shifts with him or who refused to switch with him out of fear. The explanation offered by the applicant was that he was either unable to find these witnesses, or they refused to testify because they continued to work for the respondent. With respect to the workers he was unable to locate, I note that the evidence establishes that the applicant’s counsel first began attempting to locate these witnesses on September 14, 2009, midway through the hearing. Further, the co-workers who could be located could have been summonsed, but they were not.

17In light of the vague testimony of the applicant on this point, the lack of corroboration, Ms. Bradley’s contradictory evidence, and the employer’s consistent efforts to accommodate other requests he made with respect to his disability, I find that the applicant has failed to establish that the respondents refused to accommodate his disability from late 2005 to 2006 by permitting last minutes Saturday shift changes.

Termination

18The applicant began his employment with the employer as a bus person in 1995. He was promoted to the position of Wait captain during the summer months. While the applicant had a lengthy discipline record, the terms of the collective agreement provided that discipline over one year would be removed from the worker’s record, unless there was a recurrence of the conduct, in which it could remain on the record for two years. Accordingly, although the applicant’s entire discipline record was before me, I have only considered events less than one year old, or two years old where there was a recurrence.

19The applicant’s employment was terminated on September 14, 2006. The termination letter referred to a series of events from June 2006 to August 2006 as the basis for the termination. Mr. Jones testified that the employer had used progressive discipline with the applicant. The discipline records indicate that the applicant was suspended in November 2005 for poor accounting practices. While the applicant did not agree with the suspension, he did not grieve it. In May 2006, there was an incident between the applicant and another worker and both employees were spoken to about their responsibility for the event.

20In June 2006, the applicant had a discipline meeting with Neil Jones relating to his recent interactions with a female manager. The respondent relied upon the female manager’s written complaints. The applicant was advised that his comments about the female manager’s appearance were not acceptable to her and should cease. He was advised that his response to correction from the same female manager was insubordinate and inappropriately aggressive in tone. The applicant received a formal written warning which he did not grieve.

21After this meeting, several more events occurred in August and early September 2006 which led the employer to terminate the applicant’s employment. The first incident was a cash shortage of $98.67 on August 14, 2006. The applicant did not deny the shortage but noted that such shortages are routine. Neil Jones accepted that small shortages are routine, but a shortage of that magnitude was unusual. It is not disputed that the practice is for the employee to pay for the shortage which the applicant did in this case.

22On August 20, 2006, the applicant allegedly shooed away a manager who approached his area to speak to an upset guest. The applicant’s version is that he was advising these guests how to get to another floor and, because he was speaking Italian with them, he made a motion to let the manager know her intervention was not warranted. The respondent relies on its investigation in which another wait captain and a manager stated that the event involved the applicant becoming upset with the guests for leaving a small tip and the guests coming to look for a manger. When the manager approached, the applicant waved her away. The guests were upset.

23On August 24, 2006, the applicant was asked by a manager to recount the guests in his area and was allegedly insubordinate to the manager. When approached by Ms. Bradley, the general manager, he became visibly agitated. He swore out loud with fellow workers which resulted in a guest complaint that the swearing had disrupted their evening. The respondent relied upon the statements by Ms. Bradley and the other manager.

24On August 27, 2006, the applicant had a confrontation with a co-worker in which he stated that “people here are scared of me” and when the co-worker responded that he was not afraid, the applicant deliberately bumped him. The respondent relied upon two statements taken by witnesses to the incident.

25Also on August 27, 2006, the applicant left all his credit card slips on a side table at the end of the evening, instead of submitting them, thereby exposing confidential guest information. The applicant did not dispute leaving the credit card slips on the side table.

26Finally, on September 9, 2006, the applicant disrupted the floor by arguing with another Wait captain over the split of a bill for a group they were both serving. The respondent relied upon a witness to the event.

27The applicant denied any wrongdoing in any of the above incidents, asking the Tribunal to infer that the events were simply a pretext to terminate a disabled employee. In addition to the denial of wrongdoing, the applicant relied on the fact that none of the August events were brought to his attention as matters of discipline in a timely manner, thus supporting his theory that they were a pretext for his dismissal. Finally, the applicant relied on the fact that his disability required significant and ongoing accommodations to give rise to an inference that the events were a pretext for terminating him.

28The applicant noted that the respondents did not call any direct evidence to establish the alleged misconduct; rather they called the managers and supervisors who investigated the alleged misconduct. The applicant asserted that the failure to call the persons who were involved or witnessed the alleged misconduct was fatal to the employer’s ability to establish the misconduct.

29I do not agree. I do not need to decide the merits of each and every event relied upon by the employer. It is sufficient to find, as I do, that the employer’s purported reason, misconduct, was the true reason for the dismissal and not a pretext.

30In order to do that, the respondent does not have to prove the underlying misconduct or cause for dismissal; they must only establish that their reliance on the misconduct was legitimate and bona fide and not a pretext. The evidence of the three managerial witnesses and the extensive documentation regarding the alleged misconduct more than establishes that the termination was imposed in good faith and based on the evidence before them, and not as a pretext to get rid of a disabled worker. I outlined above the statements and witnesses relied upon by the respondent.

31Further, the union witness, Ron Smith, testified that when he investigated the incidents leading to the dismissal, all the witnesses he contacted substantiated the employer’s version of events. The applicant asserted that I could not rely upon Mr. Smith’s evidence since he had withdrawn the Application against the union. I disagree. The withdrawal of the Union Application was not made conditional upon striking Mr. Smith’s evidence.

32The General Manager did speak to the applicant about most of the events as they occurred, although these were not formal discipline meetings. I accept the respondent’s assertion that the events were simply happening so frequently that they decided to deal with them together. In my view, the events are not so stale as to give rise to an inference that the respondent did not view them as disciplinable events.

33I do not find persuasive the suggestion that the dismissal of a ten year employee over allegedly trivial events leads to an inference that the cost and inconvenience of accommodating the applicant’s dialysis schedule was a factor in his termination. In so finding, I am cognizant that the applicant had become ill at work on September 7, 2006 and departed early, which was only one week before the termination.

34By the applicant’s own evidence, his condition did not prevent from doing all the duties of a bus person or Wait captain. Generally, his dialysis schedule permitted him to continue working full-time. The respondent had accommodated all the applicant’s absences from 2003 and his requests for accommodation (in the form of lighter shifts at times) without any indication of reluctance.

35Also, I do not agree that the culminating incidents were trivial. They indicate an employee whose conduct was worsening and who appeared to be impervious to counselling.

36Finally, the applicant relied upon the evidence of Ms. Walterhouse that the employer did not consider whether the applicant’s ill health played a role in his misconduct. There is no evidence that the applicant’s misconduct was related at all to his ill health.

37I conclude that the applicant has not established that his disability or his need for accommodation were factors in the decision to terminate his employment.

Conclusion

38The Employer Application File No. T-0370-08 is dismissed.

39The Union Application File No. T-0371-08 is withdrawn with leave of the Tribunal.