Novo v. Olymel Brampton, 2009 HRTO 213

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jimmy Novo

Applicant

-and-

Olymel Brampton Inc., Elizabeth O’Keefe, Mark Cerbu and Dan Sandor

Respondents

Case resolution Conference DECISION

Adjudicator: Mark Hart

Date: March 2, 2009

Citation: 2009 HRTO 213

Indexed as: Novo v. Olymel Brampton

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, dated August 12, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on May 27, 2008.

2The Case Resolution Conference (hearing) in this matter was held on February 3, 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 of the personal respondents.

3The applicant was dismissed from his employment as a sanitation supervisor with the respondent company on April 30, 2008. The applicant alleges that his termination was reprisal due to the respondents’ belief that he had participated as a witness against the company in a Commission investigation into a complaint filed by another employee. In fact, while he initially told this employee in November 2007 that he was willing to be a witness, the applicant declined to provide a witness statement when contacted by a Commission investigator in February 2008.

4Nonetheless, the applicant states that the respondents believed him to have participated as a witness. When asked for the basis of his belief, the applicant stated that he had been told by co-workers that they had overheard some of the personal respondents say that they knew the applicant had been a witness in the Commission investigation. However, the applicant could not identify any of these co-workers, and none of them were called to provide direct evidence as to what they are alleged to have heard. The respondents deny any awareness that the applicant was a potential witness to the Commission investigation until they received a copy of the applicant’s complaint, well after he had been terminated.

5The applicant alleges that following the Commission investigation, he was singled out by management for differential treatment and was subjected to a hostile workplace. Prior to the hearing and despite the issue of lack of particulars having been raised repeatedly by the respondents, the applicant provided no factual details as to the manner in which he is alleged to have been treated differently or in a hostile manner.

6While I understand that the Commission imposed a limit of two pages on complaints that were filed with it under the old process, the Tribunal’s process allows for an applicant to file a statement of additional facts in order to provide a more fulsome statement of the factual details or particulars of his or her allegations. In this case, the statement of additional facts filed on the applicant’s behalf was simply a recitation of the vague allegations already set out in the complaint. As a matter of procedural fairness, this is not acceptable. A party is entitled to know the specifics of the allegations being made against it, so that they can properly prepare their evidence in response.

7I declined to dismiss the Application on the basis of the failure to provide particulars, and allowed the applicant to provide the specific details of his allegations while giving his evidence. I then provided the respondents with a brief adjournment to allow them time to consider their evidence in response. Luckily, in this case, the respondents were able to provide their response on extremely short notice. But this will not always be the case. Had the respondents been unable to provide a response on such short notice, I certainly would have considered invoking Rule 3.4 which entitles the Tribunal to refuse to allow a party to present evidence about a fact that was not disclosed in material filed.

8When asked to provide specifics of the alleged differential treatment, the applicant said that one of the personal respondents, who at the time was a production manager, started making complaints to the applicant every day in March 2008, whereas he previously had not raised complaints. When asked for further specifics, the applicant referenced that he was blamed for breaking a belt on a machine, that he was blamed for water getting into the electrical panel on the batter machine, and that the manager complained about the thigh de-boning drain being clogged up. The applicant also raised an issue about being under-staffed and employees not being transferred into his department, and stated that after his termination, these employees were transferred. The applicant alleges that he complained to the human resources manager about how he was being treated, and that she said she would look into it, but she never got back to him.

9The production manager, who later became the sanitation manager, states that issues with the belts breaking on the machines occurred prior to March 2008 and are still occurring to this day. He has no recollection of any specific incident in March 2008 and denies that he treated the applicant any differently at that time. He does recall having a conversation with the applicant about needing to snake the thigh de-boning drain, but can’t be specific as to when this happened. He does not recall any issue with water getting into the electrical panel on the batter machine, although he does recall this issue with another machine. Overall, the production manager denies that he treated the applicant any differently in March 2008 than he had before that time.

10With regard to the issue of understaffing on the applicant’s crew, the respondents were able to provide details regarding the three specific employees identified by the applicant. Of the three employees identified by the applicant, only two actually moved into the sanitation department. One of these employees was about to be laid off in September 2008 and there was an open position in sanitation, so he bumped into the position. The third employee had previously worked in sanitation but then had moved to production. In November 2008, this employee moved back into the sanitation department. There is no evidence to support the applicant’s allegation that the timing of these transfers had anything to do with him or his termination in April 2008.

11The human resources manager denied that the applicant had ever come to her to allege that he was being mistreated. This witness had a specific recollection of the occasions on which she had met the applicant while employed at the respondent company, and was able to provide details of each occasion. She also stated that it was her practice to make notations in a detailed log notebook if an employee came to her to raise an issue, and that she had reviewed her notebook after the complaint had been received to see if there were any notes about the applicant, and there were none.

12On April 22, 2008, the human resources manager became aware that an employee in the sanitation department had suffered a minor workplace injury on the previous night shift. When preparing material in response to the workplace injury, the injured employee’s records were checked to see if she had worked a full shift, and it was discovered that she had been overpaid. In fact, it was discovered that this employee was being paid as if she had reported for work at 8 pm the previous evening, whereas she had punched in at 9:57 pm. The overpayment was in the amount of two overtime hours.

13This kind of payment was referred to at the hearing as payment “outside the punches”, as the employee was being paid for time that she was not physically at the plant. Because this was an unusual occurrence, the human resources manager went to consult with one of the personal respondents, who was newly appointed as the sanitation manager. They ran records for a period of about two to three weeks to determine if there had been other payments outside the punches, and discovered that there had been. The human resources manager then did a trace to determine who was responsible for inputting the time records for these payments, and discovered that it was the applicant.

14Accordingly, on April 22, 2008, the human resources manager and the sanitation manager met with the applicant to ask why he had input time records to pay employees when they were not physically in the building. The applicant responded that when he was short-staffed, he compensated employees on shift for doing “extra work”, which was described as cleaning machines that were not part of their regular duties. These employees were compensated by being paid one or two hours of overtime beyond their regular pay for the shift, even though these employees did not actually work any overtime. The applicant said that this was a regular practice in the sanitation department, and provided the names of other supervisors who did this. The applicant was put on a paid suspension pending an investigation.

15The respondents then conducted a review of the period during which the applicant had been acting as sanitation supervisor from November 2007 to April 2008. During this period, the respondents discovered that 231.25 overtime hours had been paid “outside the punch” as a result of time entries made by the applicant. The human resources manager and the plant manager spoke to the three other supervisors who had been identified by the applicant as also engaging in this practice, and they denied doing so. The human resources manager also took the extra step of examining two months of time records for the sanitation supervisor whom the applicant replaced, and who was one of the supervisors identified by the applicant as having engaged in this practice, and did not find any instances of payments outside the punches.

16The matter was reviewed by the management team, and the applicant was called in for a further meeting on April 30, 2008 and was terminated. The respondents state that the applicant was terminated because he had not followed company practice and rules of conduct regarding the recording of time and that, even though there was no indication that the applicant had personally benefited from what he did, it was equivalent to stealing and raised trust issues.

17The applicant states that he was trained on this practice when he first started working as a sanitation supervisor 7 or 8 years ago, and says that he has personally witnessed other sanitation supervisors recording time in this manner. The applicant states that a previous sanitation manager was aware of this practice, but says that no-one else in management knew about this.

18In argument, counsel for the respondents urged me to dismiss the application on the basis that the applicant had not made out a prima facie case. I am not prepared to do this. The requirement for an applicant to make out a prima facie case only serves the purpose of shifting an evidentiary burden to the respondents to provide a non-discriminatory explanation for their actions. As a result, the question that I need ask myself is whether, in the absence of any explanation coming forward from the respondents in response to the applicant’s allegations, I would be prepared to dismiss the Application.

19On the applicant’s evidence, his name was given to the Commission as a potential witness, he was contacted by a Commission investigator and he believes that the respondents were aware of this. While the applicant declined to provide a witness statement to the Commission investigator, I find that his involvement was sufficient to constitute “participation” in a proceeding under the Code within the meaning of section 8 of the Code. The applicant’s evidence also, in the absence of any response, is that he was treated differently in the period following the Commission investigation and was terminated shortly afterwards for what, on his evidence, was common practice among sanitation supervisors. This evidence, in my view, is sufficient to establish a prima facie case requiring the respondents to bring forward evidence to explain their actions.

20In the end, I find that the respondents have provided a credible, non-discriminatory explanation for the termination of the applicant’s employment, which had nothing to do with the applicant’s involvement in the Commission investigation. There is no indication that the respondents’ reasons for terminating the applicant were a pretext for discrimination. The payment of overtime to employees for time when they were not physically at the plant is a serious matter, and imposed a financial cost on the company.

21It may indeed be that the applicant was trained by another sanitation supervisor to engage in this practice, but there is no evidence that the respondents were aware of this. It may be that the other sanitation supervisors all lied when asked if they engaged in this practice, but this is what the respondents were told when these supervisors were specifically asked and the respondents had no evidence to contradict this. If the applicant could prove that he was trained to engage in this practice and that other supervisors also engaged in this practice, he might be able to assert the principle of condonation in response to a defence of just cause for dismissal in a wrongful termination suit. But that is far from sufficient to prove that the respondents were aware of or believed in the applicant’s involvement in a Commission investigation and that this was a factor in his termination.

22With regard to the allegation of a poisoned work environment, I do not find that this has been established by the evidence. The applicant could provide scant examples to support his allegation of constant and daily complaints in the March 2008 period, and the examples he provided all appeared to be fairly common workplace issues. Further, the respondents established that the transfer of two employees to the sanitation department several months after the applicant’s termination had nothing to do with the applicant.

23For all of these reasons, I find that the respondents have provided credible, non-discriminatory explanations for their actions. The Application is dismissed.