Pileggi v. Champion Products, 2009 HRTO 2097

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Antonio Pileggi

Applicant

-and-

Champion Products Corp.

Respondent

Case resolution conference DECISION

Adjudicator: Mark Hart

Date: December 3, 2009

Citation: 2009 HRTO 2097

Indexed as: Pileggi v. Champion Products

1This is an Application dated August 11, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on April 17, 2006.

2The applicant alleges that he experienced discrimination because of his disability in relation to the termination of his employment by the respondent company, contrary to ss. 5 and 9 of the Code.

3The Case Resolution Conference (hearing) in this matter was held on June 29 and October 5 and 6, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and two witnesses who testified in his support as well as from four witnesses who testified on behalf of the respondent company. The parties were given the opportunity to cross-examine opposing witnesses after I had completed my questioning.

Review of Evidence

4The applicant commenced employment with the respondent company on August 1, 2005 as Warehouse Manager at its Toronto location. At the time he was hired, the applicant knew that he would require heart surgery in the near future. This was disclosed to Ashok Sood, the CEO of the respondent company, prior to the applicant being hired. While there was some dispute between the parties as to whether the surgery was described as “major”, according to the applicant’s evidence, or as “routine”, according to Mr. Sood’s evidence, Mr. Sood does not dispute that he was told that the applicant may need to be off work for three to four months as a result of the surgery.

5The applicant had his surgery on December 15, 2005. There is a dispute between the parties as to whether the applicant was to be paid during his time off work. The applicant’s evidence is that prior to being hired, a verbal agreement had been reached between himself and Mr. Sood that he would be paid his full salary for the entire period of his absence. Mr. Sood’s evidence is that no such agreement was reached, and that the respondent company does not have any policy or practice of paying employees who are off on sick leave.

6The applicant did receive three cheques from the respondent company during the period following his surgery: the first cheque is dated January 6, 2006 in the amount of $1,600; the second is dated January 26, 2006 in the amount of $3,200.00; and the third is dated February 21, 2006 in the amount of $2,400.00. There is no dispute between the parties that the amounts of these cheques were calculated to replace the net income that the applicant would have received had he continued working for the respondent company.

7All three cheques are marked on their face as being a “loan” and were recorded in the company’s financial records as being a loan receivable. The applicant’s spouse, who gave evidence before me, testified that after receiving the first cheque, she followed up with Mr. Sood about why the cheque was indicated as being a “loan”, and was told not to worry about this and this was done for the respondent company’s benefit. The applicant also testified that he questioned Mr. Sood about the use of the term “loan” on the cheques when he saw Mr. Sood on January 26, 2006, and was told that this was just something that Mr. Sood needed to put on the cheques for tax purposes.

8Mr. Sood denies telling the applicant or his spouse that he only put the term “loan” on the cheques for financial reasons or that there was no expectation that the monies would be repaid. Mr. Sood does acknowledge speaking with the applicant’s spouse and telling her that they would deal with this issue afterwards, as he did not want to put any more stress on her or the applicant at that time.

9The applicant met with Mr. Sood on February 16, 2006, at which time the applicant was given the third cheque dated February 21, 2006. There is no dispute in the evidence that Mr. Sood informed the applicant that this was the last cheque that he would receive from the respondent company. The applicant advised Mr. Sood that he would be seeing his doctor and expected to be able to return to work. Mr. Sood’s evidence is that he told the applicant to be sure to provide a medical note authorizing his return. This is disputed by the applicant.

10The applicant called Mr. Sood on February 28, 2006 and advised him that he would be seeing his doctor on March 20, 2006 and that his doctor would be giving him a clean bill of health. In fact, at this time, the applicant did not know that he would be given a clean bill of health when he saw his doctor, but states that he said this because he needed to come back to work as he was no longer receiving any monies from the respondent company. The applicant’s evidence is that he was told not to come back to work until he had seen Mr. Sood, and a meeting was scheduled for March 23, 2006.

11Mr. Sood does not dispute that a meeting may have been scheduled for March 23, 2006, as that was a day on which he normally would be at the Toronto location. Mr. Sood’s records do not indicate one way or another whether he was actually at the Toronto location on that day, but Mr. Sood’s evidence is that he was not advised that the applicant showed up to see him. The applicant’s evidence is that he did show up at the Toronto location on that day, but that Mr. Sood was not there.

12The applicant did not in fact see his doctor until March 24, 2006. In the context of this proceeding, the applicant provided a letter from his doctor dated May 27, 2009, in which the doctor states that he has no recollection of this follow-up visit but that his notes indicated that the applicant had no ongoing surgical complications at that time. In this letter, the doctor also stated that he was not in a position to make an assessment of the applicant’s functional ability, and that this was a matter between the applicant and his employer. The applicant subsequently obtained a further letter from this doctor dated July 2, 2009, in which the doctor confirms that he saw the applicant on March 24, 2006 and cleared him to start driving and to be able to go back to work at the earliest opportunity. No letter was obtained from this doctor at the relevant time confirming the applicant’s ability to return to work.

13The applicant states that he subsequently made numerous attempts to contact Mr. Sood by telephone. The applicant attempted to contact Mr. Sood at his office number in Windsor, but apparently Mr. Sood was traveling extensively during this period of time. There was some dispute at the hearing as to why the applicant did not attempt to contact Mr. Sood on his cellphone.

14In any event, during this period of time, the applicant did speak with the Office Manager at the Toronto location, Sudha Konnur. Ms. Konnur’s evidence is that during this call, she advised the applicant that he needed to provide a medical certificate authorizing his return to work. This is denied by the applicant.

15On April 8, 2006, which was a Saturday, the applicant’s father-in-law, John Colarieti, contacted Mr. Sood directly on his cellphone. Mr. Colarieti previously had been introduced to Mr. Sood through a fellow acquaintance in the same area of business. Mr. Colarieti’s evidence is that he made this call because Mr. Sood had not been returning the applicant’s calls. This day was Mr. Sood’s anniversary and he was in Atlanta at the time. Mr. Colarieti states that he asked what was going on and told Mr. Sood to live up to his promises. Mr. Sood promised to call the applicant back, but no further call was made by Mr. Sood to the applicant.

16On Monday, April 10, 2006, a Record of Employment was prepared for the applicant showing him to have been laid off due to shortage of work. The precise circumstances by which this Record of Employment came to be prepared are somewhat of a mystery. Both Mr. Sood and Ms. Konnur testified that they had been told by the company’s Financial Controller, Vincent Sasso, that the applicant had called Mr. Sasso and requested that a Record of Employment be issued. Mr. Sasso testified by telephone and stated that he had no recollection of any such call with the applicant or of telling Mr. Sood or Mr. Konnur that the applicant had made such a request. Rather, Mr. Sasso’s evidence is that he was instructed to issue the Record of Employment by the General Manager for the Toronto location, Karl Gotting. Mr. Gotting was not called by the respondent to testify at the hearing.

17The applicant’s evidence is that he did not request the issuance of the Record of Employment. The applicant received his Record of Employment on April 11, 2006, and his evidence is that he called Mr. Sasso on April 11, 2006 to find out why but was not given any information as to why his employment had been terminated. These calls are confirmed by the applicant’s phone records, which were introduced into evidence at the hearing.

18No direct evidence was provided by the respondent as to why the applicant’s employment had been terminated. In fact, Mr. Sood’s evidence is that it was not his intention to terminate the applicant’s employment. Rather, during the period that the applicant was off work, Mr. Sood had been informed about some issues regarding the applicant’s conduct and behaviour in the workplace, and Mr. Sood wanted to meet with the applicant to discuss these issues, to hear the applicant’s side of the story, and to confirm his expectations regarding the applicant’s workplace behaviour prior to the applicant’s return to work. Mr. Sood’s evidence is that he did not get the opportunity to have this meeting prior to the termination of the applicant’s employment.

Analysis and Decision

19The primary issue in this case is whether the applicant’s employment was terminated because of disability. No issue was taken regarding the applicant’s heart condition qualifying as a “disability” within the meaning of the Code.

20In this case, as in many cases alleging discrimination, there is no direct evidence that the applicant’s disability was a factor in the termination of his employment. As a result, the issue of whether the respondents’ actions amount to discrimination in violation of the Code falls to be determined in accordance with the well-established principles applicable to circumstantial evidence cases. In the instant case, as in many circumstantial evidence cases, the determination comes down to whether an inference of discrimination because of disability is more probable than the respondent’s explanation for the termination of employment: see Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd.Inq.).

21The evidence is clear that the applicant’s employment was terminated while he was off on medical leave due to his disability. Against this, I have no actual evidence to explain why the applicant’s employment was terminated. Two of the respondent’s witnesses say that the applicant made a request to the Financial Controller for the issuance of his Record of Employment, but this evidence was contradicted by Mr. Sasso. Mr. Sasso’s evidence is that he was instructed by the General Manager to issue the Record of Employment, but I have no evidence from Mr. Gotting as to why such an instruction was given. Mr. Sood’s evidence is that he didn’t intend to terminate the applicant’s employment, but merely wanted to speak with him about his workplace behaviour.

22The respondent submitted in argument that the applicant wanted his Record of Employment to be issued so that he could move seamlessly from the Employment Insurance disability benefits he had been receiving to the receipt of regular Employment Insurance benefits. While the applicant’s evidence is that he did not have any interruption of his Employment Insurance benefits as a result of the issuance of the Record of Employment, his evidence is that he did not request the issuance of the Record of Employment and no direct evidence was led by the respondent to contradict this. In these circumstances, I am not prepared to find that the applicant himself requested issuance of the Record of Employment.

23The respondent also takes the position that the applicant failed to provide a medical certificate confirming his ability to return to work. There can be no dispute that, particularly after such a lengthy absence for such a serious condition, an employer is entitled to request a medical certificate prior to the employee’s return to work. In the instant case, there is a dispute in the evidence as to whether a request for such a certificate was made. However, at the end of the day, there is no evidence before me to support that the applicant’s employment was terminated because of any failure to provide a medical certificate.

24The respondent submitted that this is not a case where a disabled employee was terminated and another employee hired to take his place. Rather, the evidence indicates that the employee who had been managing the respondent’s Toronto warehouse prior to the applicant being hired resumed these duties while the applicant was on medical leave and continued as Warehouse Manager following the applicant’s termination. No additional employee was hired by the respondent to work in the warehouse. However, once again, I have no actual evidence to support that this was the reason for the termination of the applicant’s employment. While the Record of Employment does indicate “shortage of work” as the reason for termination, I was not provided with any direct evidence from the General Manager Mr. Gotting, the individual who appears to have instructed that the Record of Employment be issued in this manner.

25The respondent further took the position that the applicant would not have been able to perform the duties of his employment had he provided it with a medical authorization to return to work. The only piece of medical evidence from the relevant time confirming the applicant’s ability to return to work is a brief letter from his cardiologist dated April 24, 2006, which states that the applicant “is able to look for employment with light duties as of April 11, 2006”. In the context of this proceeding, the cardiologist was asked to clarify what he meant by “light duties”, and in a letter dated May 11, 2009 he stated that he indicated to the applicant at the time that he should not be lifting items heavier than 30 lbs.

26The applicant’s evidence is that there was only one product in the warehouse that weighed more than 50 lbs, which were the packages of lawn and leaf bags that weigh up to 50 lbs. The applicant’s evidence was that he would not normally be required to lift this product, as he was the Warehouse Manager and would delegate this work. The applicant also testified that there were some cases of detergent that might have hit 30 lbs. The respondent’s evidence was that there also were 20 litre chemical pails that weigh over 50 lbs, and that these heavy items needed to be lifted on a regular basis even by a manager. The respondent’s evidence is that there were only three or four people who worked in the warehouse and that there may be times when the manager was there by himself and would have to service a customer.

27Under the Code, an employer is under a legal obligation to accommodate an employee with a disability up to the point where it causes undue hardship to the employer: see s. 17. At its highest, the evidence indicates that there were two and perhaps three products that the applicant would not have been able to lift. It is clear that, for most of the work day, there would have been two or three other employees in the warehouse available to lift these products. While it is conceivable that there may have been some occasion early or late in the work day when the applicant may have been alone in the workplace and may have been unable to attend to a customer who wanted one of these heavy items, this is a far cry from the kind of evidence required to establish that accommodating this lifting restriction would have caused the respondent undue hardship.

28As a result, I find that the respondent has failed to provide credible evidence of a non-discriminatory explanation for the termination of the applicant’s employment. In the absence of any credible explanation and in light of the termination of the applicant’s employment while he was off on medical leave due to his disability, I find that the applicant was terminated because of his disability in violation of ss. 5 and 9 of the Code.

Remedy

29The applicant seeks compensation for lost income from the time that his employment with the respondent was terminated on April 10, 2006 until he next obtained employment in September 2007, which is a period of about 17 months.

30Where an applicant is dismissed, the amount of compensation to be awarded for loss of wages is not restricted to the time period of “reasonable notice” as established by the common law. The purpose of compensation is to place the applicant in the position he would have been in had the discrimination not occurred: Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998), 1998 CanLII 17685 (ON CA), 35 C.H.R.R. D/477 (Ont. C.A.); Piazza v. Airport Taxi Cab (Malton) Assn. (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.).

31In the instant case, I need to consider the position that the applicant would have been in had the discrimination not occurred. As previously stated, the respondent had every right to require a medical certificate prior to the applicant’s return to work. While the evidence is in dispute as to whether this requirement was communicated to the applicant, the fact remains that the first evidence before me of any such medical certificate is the letter from the applicant’s cardiologist dated April 24, 2006. Accordingly, I will use this date as the starting point from the award of lost income.

32The next question I need to address is how long the applicant would have remained employed at the respondent company had the discrimination not occurred. In my view, there are a number of factors that indicate that his continued employment would not have been lengthy and would not have extended for a further 17 months.

33First, as stated above, during the applicant’s absence, issues had been raised regarding the applicant’s workplace conduct and behaviour. The details and severity of these issues are disputed by the applicant. Nonetheless, in my view, the evidence supports that there was a power struggle going on between Ms. Konnur as Office Manager and the applicant as Warehouse Manager over the proper procedures and protocols to be followed, which had resulted in at least one angry outburst by the applicant towards Ms. Konnur. There also was evidence of conflicts that the applicant had with other employees.

34In addition, it is clear from the evidence that in the applicant’s absence, the respondent discovered that it did not in fact need an extra warehouse employee in order to effectively manage that area of its business.

35Finally, at the time the applicant was hired, there appears to have been some expectation, at least on Mr. Sood’s part, that the hiring of the applicant would result in an increase in business by tapping into the supermarket industry, due to the applicant’s contacts through his spouse and his father-in-law. This increase in business did not in fact materialize.

36As a result, in considering all of these various factors, I find that the most likely scenario is that the applicant’s employment with the respondent company would have continued for a period of four months, following which his employment would have been terminated in any event without cause with a reasonable notice period of a further four months, given his one year period of employment by that time and the nature of his position as Warehouse Manager. Accordingly, I award the applicant a total of eight months as compensation for lost income. At his annual salary of $52,000 per year, this amounts to $34,666.67. This lost income is attributable to the period from April 24 to December 24, 2006.

37As the applicant received regular Employment Insurance benefits during this period, he will need to provide the respondent with a statement of Employment Insurance benefits received from April 24 to December 24, 2006, so that this amount can be deducted from the award and remitted by the respondent directly to repay Employment Insurance. The respondent also will need to make the appropriate deduction for withholding tax.

38I also find that the applicant is entitled to pre-judgment interest on the net amount calculated at a rate of 3.8% from the midpoint of the period for which lost income is payable, namely August 24, 2006, to the date of this Decision.

39I also need to assess the applicant’s claim for compensation for injury to his dignity, feelings and self-respect arising from the violation of his rights under the Code. The applicant provided a letter from his family physician and a psychiatrist confirming that he suffered from major depression following the loss of his employment and was prescribed a variety of medications, which the applicant testified did not help. While the letters show that the applicant did not commence receiving treatment for his depression until March 2007, the applicant’s evidence is that his depression started a year earlier after he had been terminated by the respondent company. He said that he had been discussing this with his family doctor at the time, who was in the process of referring him to a psychiatrist, when his doctor passed away. I also heard direct evidence from the applicant and his spouse as to the impact upon him of the loss of his employment.

40At the same time, given that I have found that the applicant likely would have lost his employment in a further four months, I need to separate out that portion of the applicant’s depression that was attributable to the discrimination from the portion attributable to the loss of his employment, as I can only compensate for the former and not for the latter. In my view, in consideration of all of the evidence and taking into account the likely impact of the loss of his employment in any event, I find that an appropriate award of monetary compensation for injury to his dignity, feelings and self-respect is $10,000.00.

41In my view, in relation to the payment of this amount, account needs to be taken of the monies paid to the applicant by the respondent company during the period of his medical absence. While I heard conflicting evidence as to whether these amounts were properly characterized as a loan, the fact remains that at the time the applicant received these monies, he also was in receipt of Employment Insurance disability benefits and did not declare these monies as income, which on the Employment Insurance forms includes paid sick leave. Given the applicant’s failure to characterize the monies paid to him as paid sick leave when reporting to Employment Insurance, in my view it is not appropriate for the applicant to claim these monies as paid sick leave in the context of this proceeding. Accordingly, I find that these monies are properly characterized as a loan, in the total amount of $7,200.00. I find that the amount of this loan should be deducted from the $10,000 in monetary compensation otherwise payable to the applicant, such that the net amount of monetary compensation payable by the respondent is $2,800.00.

42Finally, I need to consider whether any order for future compliance is appropriate pursuant to s. 45.2(1).3 of the Code, which I can do even if no such order is requested: see s. 45.2(2)(b). No human rights policy was submitted into evidence before me. It also appears to me from the evidence that the respondent company does not fully appreciate its obligations towards employees with disabilities. Accordingly, I require the respondent to retain a person with expertise in human rights matters to prepare a human rights policy or to revise any existing policy in accordance with the Ontario Human Rights Commission’s Guidelines for Accommodating Persons with Disabilities and its Guidelines on Developing Human Rights Policies and Procedures and to provide training on human rights with a focus on accommodating employees with disabilities to all management and human resources personnel at the respondent company. The policy and training are to be completed and implemented within three months of this Decision.

ORDER

43I make the following order:

1. The respondent shall pay to the applicant the sum of $34,666.67 as lost income attributable to the period from April 24 to December 24, 2006, less the required remittance for Employment Insurance benefits received during this period and other applicable statutory deductions, together with pre-judgment interest on the net amount calculated at a rate of 3.8% from August 24, 2006 to the date of this Decision;

2. The respondent shall pay to the applicant the further sum of $2,800.00 as monetary compensation for injury to his dignity, feelings and self-respect;

3. Post-judgment interest at a rate of 2.0% shall apply on all amounts owing from 30 days following the date of this Decision; and

4. The respondent shall retain a person with expertise in human rights matters to prepare a human rights policy or to revise any existing policy in accordance with the Ontario Human Rights Commission’s Guidelines for Accommodating Persons with Disabilities and its Guidelines on Developing Human Rights Policies and Procedures and to provide training on human rights with a focus on accommodating employees with disabilities to all management and human resources personnel at the respondent company. The policy and training shall be completed and implemented within three months of this Decision.