Marchetti v. Desjardins Credit Union, 2009 HRTO 1677

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Claudio Marchetti

Applicant

• and-

Desjardins Credit Union

Respondent

case Resolution Conference DECISION

Adjudicator: Janice Sandomirsky

Date: October 14, 2009

Citation: 2009 HRTO 1677

Indexed as: Marchetti v. Desjardins Credit Union

AppearanceS BY

Claudio Marchette, Applicant ) Self-represented

Desjardins Credit Union, Respondent ) Marie-France Chartrand,

) Counsel )

1This is an Application filed on December 2, 2008 under section 53(3) of the Human Rights Code, R.S.O, c. H. 19 as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission and abandoned upon the filing of this Application with the Tribunal. The applicant alleges that his disability was a factor in the respondent’s decision to terminate his employment.

2The Case Resolution Conference was held on September 3, 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. The applicant adopted the narrative in his Application as his evidence and supplemented it through his oral evidence. The respondent called three witnesses: the Area Manager for Central Ontario, the Manager of Human Resources and the Branch Manager.

REQUEST FOR REMOVAL OF THE PERSONAL RESPONDENTS

3Prior to the hearing, the respondents filed a Request for an Order During Proceedings seeking the removal of the personal respondents named in the Application.

4Section 46.3 of the Code provides that acts or omissions done in the course of employment by an agent of a corporation shall be deemed to be acts or omissions done by the corporation. The Tribunal may remove a party under Rule 1.7(b) of the Rules of Procedure. Noting the factors to consider when determining whether it is appropriate to remove a personal respondent, as set out in Persaud v. Toronto District School Board, 2008 HRTO 31, and reviewing the allegations set out in the Application in this case, I determined that at all material times the personal respondents were acting in the course of their employment or as an officer, official, employee or agent of the corporate respondent and were not acting in their own capacity. As such, I ordered that the personal respondents be removed as parties to the Application.

BACKGROUND

5The applicant began his employment as a financial adviser with the respondent on April 2, 2007. He was terminated from that position on December 31, 2007. At the time, he was off work for health reasons and in the process of claiming short term disability benefits. He claims his disability was a factor in the decision to terminate his employment and the respondent was in breach of the Code.

6The applicant was a probationary employee. A term of his employment required that he complete a satisfactory six month probation period. It was expressly stated in his employment contract that, during his probationary period, the respondent could terminate employment at any time without notice or payment in lieu of notice. The terms of employment also allowed the probationary period to be extended by an additional three months.

7The applicant testified that he was hired to expand the investment base of the respondent’s existing clients and develop strategies to attract new clients. Prior to his six month probationary review on October 2, 2007, the applicant stated that he had no indication that he was doing anything other than a good job. He received no complaints or concerns from management. The applicant was shocked and surprised to find that he was given an “unsatisfactory” rating on his probationary evaluation. The review noted that he had been unable to develop new business from all the initiatives undertaken and his personal sales results were well below what was expected. As a result, the applicant’s probationary period was extended by three months to allow for additional mentoring opportunities.

8The applicant challenged the respondent’s performance appraisal noting that, when he started in the job, no work had been done on the accounts since inception and they needed to be updated. Further, there was no sales culture in the branch and that it was difficult to educate and motivate the staff to develop those skills. Another barrier to sales was the nature of the clients of the branch, many of them being elderly and not able to come to the branch for meetings. Other clients consisted of organizations that could not qualify for the respondent’s investment or credit products.

9The applicant wrote to the Area Manager setting out his concerns with the probationary evaluation. He requested clarification for what he saw as the very mixed messages contained in the review. He also requested assistance to become better at his job. He testified that he received no response to this letter and very little support or guidance. The documents filed by the respondent, however, included email memos between the Area Manager and the Manager of Human Resources regarding the response to the applicant and a meeting to discuss his concerns and the employer’s expectations. The applicant confirmed that additional mentoring was arranged for him.

10When questioned further about this meeting, the applicant testified that he may not recall it because things became confused due to the state of his mental health. He stated that he started to go to the doctor several times during the summer and fall of 2007 because of increased blood pressure and inability to sleep.

11On December 14, 2007, he presented a letter from his family physician to the branch manager stating that he was totally disabled and unable to return to work for an indefinite time. The employer provided the applicant with forms to fill out and be submitted to the medical insurer. The applicant claimed benefits for depression, work place stress and hypertension.

12On December 31, 2007, the respondent sent the applicant a letter of termination effective the end of his probation on January 2, 2008. The applicant received the letter of termination before the insurer had fully reviewed his claim for disability benefits and allowed payment for one month.

13All the respondent’s witnesses testified that the applicant was provided with many opportunities to promote sales and given feedback on how to follow up with initiatives undertaken to expand the business but there was no improvement in the applicant’s sales results.

14The applicant confirmed that, prior to submitting the doctor’s report on December 14, 2007, he did not inform anyone at work that he was having medical difficulties. He stated that he did not tell the respondent about his problems because he was concerned that it would reflect negatively on him. He believed that someone at work might have noticed a change in demeanour, but he acknowledged that no one knew about his medical condition.

15The respondent’s witnesses testified that a decision was made in early December, a few weeks before the end of the applicant’s second probationary period, to terminate his employment. On December 7, 2007, the Branch Manager sent an email to the Area Manager requesting information about the salary range and bonus structure for the financial adviser position. She stated in the email: “Obviously, based on the situation, I am starting to think about building a pipeline of possible candidates and trying to pinpoint what that ideal candidate would look like.” In response, the Area Manager attached the job description, the salary band and provided other information about the financial adviser position. While there is no direct statement regarding the applicant’s employment in this email, it is evident that the branch manager was in the process of finding a replacement.

ANALYSIS

16The applicant did not provide any direct evidence that he was terminated because of his disability. Discriminatory actions, however, are generally not overt and, by their very nature, not capable of direct proof. Thus, it often becomes necessary to infer discrimination from the actions of the individual or individuals whose conduct is in issue.

17For the reasons set out below, I am not satisfied that such an inference can be made based on the evidence before me. In my view, the evidence persuasively supports a finding that the respondent terminated the applicant as a result of his failure to meet its performance expectations. That there were a number of challenges the applicant faced in his position was acknowledged and recognized by all the respondent’s employees who testified at the hearing. Indeed there may have been institutional barriers to meeting the employer’s expectations that resulted in the applicant not being able to do his job to the employer’s satisfaction. However, the issue before me is not whether the employer made the correct decision in terminating the employment relationship. The only issue before me is whether the termination was in violation of the Code.

18The applicant asked me to consider two cases that he claimed supported his position: Mellon v. Human Resources Development Canada, 2006 CHRT 3 and Pridham v. En-Plas Inc, 2007 HRTO 8. Both of these cases deal with the question of whether an employee’s disability was a factor in their termination. Both cases can be distinguished, however, on the basis that the employer was aware of a health problem prior to the termination and those problems affected the job performance. In Mellon, for example, it was found that the complainant had alerted her manager and supervisor that the fact her work was not getting done was not because she was not interested in doing it, but because she had a health issue. In that circumstance, the Tribunal was able to conclude that the decision not to renew the complainant’s contract was influenced by her disability. In Pridham, the employee had been off work and getting treatment for a psychological disability for four months prior to her termination.

19In this case, I am satisfied, having reviewed all the evidence presented, that the employer was completely unaware of the applicant’s medical difficulties before December 14 when he went on leave. I am also satisfied that the evidence supports a finding that the decision to replace the applicant was made in the early part of December before the respondent was aware of any medical problems. Furthermore, the applicant did not provide evidence that his medical problems were the reason he could not meet the employer’s performance expectations. Rather, the applicant highlighted the many institutional barriers he faced to succeeding in the job. Therefore, I conclude that the termination was based on the applicant’s failure to meet the performance expectation and that the applicant’s disability or perceived disability was not a factor in that decision.

20For these reasons the Application is dismissed.