Garcia v. Tri-Krete, 2009 HRTO 2181

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Garcia

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Tri-Krete Limited

Respondent

dECISION

Adjudicator: Kathleen Martin

Date: December 15, 2009

Citation: 2009 HRTO 2181

Indexed as: Garcia v. Tri-Krete

Appearances

Jason Garcia, Complainant ) Self-represented

Ontario Human Rights Commission ) Jean C.H. Iu, Counsel

Tri-Krete Limited, Respondent ) Paul Sebunya, Counsel

)

INTRODUCTION

1This is a Commission-referred complaint brought under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Commission and complainant, Jason Garcia, allege that the complainant was discriminated against on the basis of disability when the respondent terminated his employment after he reported that he had injured his hand.

2The respondent disputes that the complainant had a disability and that his job was terminated because of it. The respondent submits that the complainant was let go because he was in his probationary period and they had concerns about his performance and attendance.

3The issues before the Tribunal are:

• Did the complainant have a disability within the meaning of the Code?
• Was the complainant discriminated against on the basis of his disability?
• If he was, what is the appropriate remedy?

THE PROCEEDING

4The hearing took place over two days and I heard evidence from the complainant; Matthew Boah, the complainant’s supervisor; and Anthony Bombini, the president of the respondent. The parties elected to file written final submissions in lieu of oral argument.

BACKGROUND

5In general, much of the background and general chronology of relevant events was not in dispute or contested. As a result, I accept the following facts summarized below or set out my findings of fact where there were minor differences. The main areas of contested evidence, the complainant’s work performance and the reasons for the complainant’s termination, are addressed below in the section on Analysis and Decision.

6The complainant commenced employment as a labourer with Tri-Krete on December 4, 2006. He was regularly scheduled to work 7:00 a.m. to 3:30 p.m., five days a week, although from the time cards submitted it is apparent that the complainant often worked additional hours. His rate of pay was $12.00 per hour.

7Tri-Krete is a manufacturer of pre-cast concrete products. The company employs approximately 50 employees engaged in the various aspects of concrete manufacturing including building forms, pouring concrete, finishing concrete and shipping and receiving. The facility is unionized although there is a 60 day probationary period for new hires before they are entitled to all rights under the collective agreement. At the time of the complainant’s termination he was still in his probationary period.

8During his employment, the complainant worked in a number of the areas of the plant. As a labourer his duties were physical in nature and included cleaning the concrete forms, sweeping, acid washing, wheel-barrowing and material handling. He also re-roofed a small shed for the respondent.

9On Saturday January 13, 2007 while off work, the complainant lacerated his right hand from the thumb to the wrist while using an ice scraper to remove ice off of the windshield of his car. He went to emergency and was treated by a physician. The complainant received 6 or 7 sutures. He also testified that the treating physician asked him about the type of work he performed and, when he described it, the physician told him to stay away from dust and wrote him a note specifying that he should be off for 7 to 10 days or be assigned light duties. The hospital records were filed as an exhibit in the proceeding and reflect the complainant’s attendance at the hospital and the treatment received. While the “note” was not produced in the hearing (reportedly because it had been given to the Commission earlier in the complaint process and misplaced and the complainant was unable to obtain another copy from the hospital), I accept that it existed at the time.

10On Monday January 15, 2007, the complainant called Tri-Krete at his start time, 7:00 a.m. and left a message for his supervisor, Matthew Boah, that it was urgent that he call him back. When Mr. Boah returned the call, the complainant told him about his injury and asked if the company had any light duties. According to the complainant, Mr. Boah stated that he would see what he could do. While there were some minor differences in Mr. Boah’s account of the conversation, I do not find the differences to be significant. Mr. Boah agreed that he knew of the injury, how it occurred and acknowledged that he may have discussed the possibility of accommodation. As a result, I find it is more probable than not that the respondent knew the complainant had injured his hand and was seeking accommodation.

11Mr. Boah went to see Anthony Bombini, the president of the company and told him about the telephone call. After the discussion with Mr. Bombini, Mr. Boah telephoned Mr. Garcia back and advised him that his employment was being terminated because it was not “working out”.

12At no time during the two telephone calls did Mr. Boah ask the complainant for any documentation supporting his “injury” or his request for “accommodation”.

13The respondent accommodates employees for both work and non-work related injuries. In this respect, Mr. Bombini testified that if Mr. Garcia had been a “good employee” and if they had wanted to keep him beyond his probationary period, the respondent would have been able to accommodate his injury.

14As a result of the complainant’s injury, he had difficulty with some of his daily activities such as eating, showering and shaving because he could not move his right hand except for the tips of his fingers. Further, the complainant stated that he would have had difficulty performing many of his duties at work such as cleaning and scraping because he only had the full use of one hand.

15In the period from his termination up until May 2007, the complainant was only able to find temporary work on a sporadic basis. In May 2007, the complainant returned to roofing, which he had worked at previously. According to the respondent’s witnesses, the complainant’s return to roofing was inevitable whether he was terminated or not given that roofing is a skilled trade and compensated at a significantly higher rate of pay than the labourer position at Tri-Krete.

Analysis and Decision

16The relevant provisions of the Code provide:

Section 5: Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

Section 9: No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part

disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

Section 17(1): A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

Section 17(2): No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Section 17(3): In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.

Did the complainant have a disability within the meaning of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

17The respondent argued that it was “unclear” whether the complainant’s right hand injury fell within the definition of disability in the Code and that in any event, the Commission and complainant had failed to establish that the complainant had a disability since they had failed to lead any evidence or make submissions on how he was disabled from the performance of his job duties as a general labourer. In this respect, the respondent suggested that it was incumbent upon the Commission to provide objective medical evidence providing proof of an impaired function from work.

18I am satisfied based on the evidence given that the complainant had a disability within the meaning of the Code. The definition in section 10 of the Code encompasses “any degree of physical disability….caused by bodily injury”. I find that the right hand injury falls within this statutory definition. While the evidence given in the hearing on how the complainant was restricted from performing his job duties was not extensive and did not include medical documentation, I am satisfied that sufficient evidence was elicited during the cross-examination of the complainant that he had limited use of his right hand which would restrict him in performing the usual tasks of his labourer position. I also accept that it would be consistent with an injury of this nature and the duties of a general labourer as described in the evidence, to require a period of time for recovery. In any event, I do not accept that an impaired function from work is necessarily a requirement to establish a disability within the meaning of human rights legislation. As noted by the Supreme Court of Canada in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665, a disability may exist even without proof of physical limitation or functional disability.

19I do not find the absence of the provision of the medical note significant in this case. This is not a case about the absence of sufficient documentary evidence since the respondent in this case never challenged the applicant’s claim of an injury at the time; rather, the respondent elected to terminate the complainant without making any inquiries. Further, it is notable that the respondent’s witnesses appeared to accept that someone with the complainant’s type of injury and these types of restrictions would normally be accommodated by the respondent. The evidence indicated that the actions of the respondent were not based on a belief that his “injury” was not a disability within the meaning of the Code, but rather, that the respondent witnesses simply did not believe his claim.

Was the complainant discriminated against because of his disability?

20It is well established that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for termination. It is not necessary that discrimination be the sole or even the primary reason for the employment termination.

21In the circumstances of this case, I find it is more probable than not that the reported injury and request for time off or light duties was at least one of the reasons for the termination of the complainant’s employment. It is undisputed that the complainant’s telephone call in which he advised of his injury and need for time off or light duties was the proximate cause of the decision. While the respondent argued that the timing was only coincidental and the decision to end his employment was made prior to the telephone call, I do not find that I can reasonably infer this from the evidence. Even accepting that the complainant’s work history was not entirely unblemished, as submitted by the respondent, I do not find that his employment was in any serious jeopardy until he made the telephone call in question.

22Both Mr. Boah and Mr. Bombini gave evidence as to why the complainant’s employment was terminated following his phone call. According to Mr. Boah, following the complainant’s telephone call, he and Mr. Bombini discussed the following facts: the complainant was calling in on a Monday (thus implying that he did not want to come into work after a weekend); the complainant was in his probationary period; the complainant had missed other work time; and there had been some earlier incidents involving the complainant and certain lead hands which suggested that the complainant was uncooperative. Mr. Bombini gave similar evidence but also suggested that there was a pre-existing management consensus to terminate the complainant’s employment - at one point suggesting that it had only been delayed because he was re-roofing a shed.

23In reviewing this evidence, I have difficulty finding these explanations credible, at least to the extent that they are being put forth as the only reasons for the complainant’s termination.

24Beginning with the assumption that this was a “Monday morning call”, there was no suggestion that the complainant had any pattern of calling in on Mondays which would provide some credibility to the suggestion that the respondent reasonably held this view. As a result, I have difficulty accepting this evidence as credible.

25Further, while I accept that there were transgressions in the complainant’s work history, when considering the evidence as a whole, I cannot reasonably infer that the complainant’s termination was imminent because of his “record” or that there was any pre-existing management consensus that he would be terminated.

26With respect to his record, reference was made to the complainant’s difficulties with a few lead hands. Even accepting this evidence, the reported incidents (December 5, 12 and 22, 2006) occurred well before the termination. Moreover, it is significant that as of the date the complainant was terminated, he was working in the finishing area of the plant and even Mr. Boah acknowledged that things were going well.

27The evidence regarding absences is similarly ambiguous. For example, while the complainant had some absences, there did not appear to be sufficient credible evidence that they were viewed problematically or least consistently so. For example, on January 3, 2007 the complainant left work when he was not allowed to sign in early and as a result failed to work a scheduled shift. Instead of being disciplined, Mr. Boah telephoned the complainant and encouraged him not to quit. In rationalizing this, Mr. Boah stated that it was difficult to find “young people” willing to work in concrete manufacturing so he encouraged the complainant to give the job another chance. The impression left by this evidence is that the respondent was motivated to retain the complainant, not terminate his employment.

28Finally, while Mr. Bombini testified that there was a pre-existing management consensus to terminate the complainant’s employment and suggested that this had not been done earlier because he was re-roofing the shed, I did not find either claim to be supported by the evidence. The claim of a pre-existing consensus was just that; no particulars were provided of when it was reached, why it was reached or any other details so as to substantiate the claim. Similarly, the suggestion that the complainant was being retained because of the roofing job does not seem probable given that the only evidence before me was that the roofing job was commenced in early December. In the final week of his employment, as noted above, the complainant had been working in the finishing area and there was no evidence that any roofing work was still in progress.

29Having regard to the above, even if I accept that each of the situations occurred as described in the evidence, I do not find that this work history was the sole reason why the complainant’s employment was terminated and that there had been some prior management consensus to do so. The timing of the incidents relied on and the manner in which they were handled does not support a conclusion that they were the proximate cause of his termination.

30Instead, the reasonable inference to be drawn from the evidence is that the timing of the termination was caused at least in part by his telephone call and the report that he was injured and required accommodation. While the respondent argued that they simply did not believe the complainant, even if I accept this evidence, it does not preclude a finding of discrimination. It is not necessary to prove intention to discriminate, but rather it is the effect on the complainant that matters in determining whether or not discrimination has occurred.

31I find that when the complainant called to advise the respondent of his injury and his need for light duties, the respondent’s duty to accommodate was engaged. It is well established that the duty to accommodate has both a procedural and substantive component. See: Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, (upheld 2008 CanLII 39605, ON. S.C. D.C., leave to appeal ref’d.) The procedural duty to accommodate involves obtaining relevant information about the employee’s disability and considering and exploring options that may be available to accommodate the disability up to the point of undue hardship. A failure to give any thought or consideration to the issues of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate. Insufficient time and effort spent on this procedural obligation followed by a “rush to judgment” that results in employment termination has been recognized as a failure to accommodate, and thus is a form of disability discrimination (Lane, supra).

32I find that the respondent’s conduct in this case violated the procedural content of the duty to accommodate. Based on the evidence presented, there appeared to be no good reason why the respondent questioned the veracity of the complainant’s assertion that he had been injured. While it may have been reasonable to seek additional information regarding the complainant’s needs and/or any restrictions, this was not done. Instead, even on their evidence, the respondent elected to disbelieve the complainant and terminate his job without engaging in any dialogue at all. In doing so, I find that the respondent violated the complainant’s right to equal treatment on the basis of disability contrary to the Code.

REMEDY

33The Commission seeks monetary compensation for injury to the complainant’s dignity, feelings, and self-respect, compensation for lost wages, pre and post judgment interest and various remedies for future compliance. I grant the remedies requested in part.

Compensation for Injury to Dignity, Feelings and Self-Respect

34The Commission seeks $10,000.00 in compensation for the loss of the complainant’s inherent right to be free from discrimination. No specific submissions were made in support of this claim.

35Section 45.2(1) of the Code provides that the Tribunal may make an order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement including compensation for injury to dignity, feelings and self-respect. In awarding damages under this section, the Tribunal has had regard to a number of factors including the complainant’s loss of self respect, dignity and the seriousness, frequency and duration of the discriminatory treatment.

36Further, the Tribunal has referred to the fact that there is an element of objectivity in awarding damages although it must be kept in mind that this provision is compensatory in nature and hence, the actual impact on the complainant is an important consideration. See: Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

37Finally, the Divisional Court has recognized that the Tribunal must ensure that the quantum of damages for this loss is not set too low, because doing so would trivialize the social importance of the Code by effectively creating a “license fee” to discriminate. See ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425 (Ont. Sup. Ct.).

38In the present case, there was a single incident of discriminatory behaviour but an incident which resulted in the termination of the complainant’s employment and the complainant being out of full time work for several months. While there was no specific evidence led about the impact of the termination of his employment on the complainant, beyond his difficulty in finding work, his rights under the Code have been violated and he is entitled to an award which recognizes the significance of those rights. Considering all of the facts of this case, including the absence of any evidence being led on the impact on the complainant and the probability that he would have left the respondent to return to roofing in the spring, I find that an award of $5000.00 is appropriate.

Compensation for Lost Wages

39Where it has been found that a complainant was dismissed contrary to the Code, the complainant is generally entitled to compensation for lost wages.

40The evidence established that the complainant was unable to find regular full- time work from the time his employment was terminated until the beginning of May when he was able to get a position as a roofer. However, in the interim, the complainant found temporary work – in his words “twice a week or not even that” for which he was compensated at “$8.75 per hour if that”. No other evidence was led about the number of actual hours worked per day. While the respondent suggested in its submissions that the complainant failed to take any reasonable steps to mitigate his damages or provide proof of his efforts or the quantum claimed, the respondent did not challenge the evidence on the complainant’s efforts in the hearing before me.

41Based on this evidence, the Commission seeks $6720.00 representing 14 weeks of lost wages from the time the complainant was terminated to the beginning of May 2007 when he commenced regular employment as a roofer. It would appear that the Commission has not made any deduction for the temporary work, but has reduced the period claimed by the time period specified for the complainant’s injury.

42I find it appropriate to award lost wages for a period of 14 weeks, but subject to a deduction reflecting an estimate of the income earned from the complainant’s temporary work based on the evidence in the hearing. As a result, I award compensation in the amount of $4760.00. This represents a payment for the period requested ($6720.00 or 14 weeks pay at the hourly rate of $12.00 per hour for a forty hour week), subject to an estimate of the deduction for the temporary work performed of $1960.00. I have based the latter on an estimate of working twice per week for 8 hours per day at the rate of $8.75 per hour.

Pre-and Post Judgment Interest

43The Commission also seeks an order for pre-judgment and post-judgment interest based on the rate set pursuant to the Courts of Justice Act, R.S.O. 1990, c. 43. The respondent did not make any submissions challenging the request for interest.

44I find that the complainant is entitled to an order for pre-judgment interest. In the case of compensation for injury to dignity, feelings and self-respect, interest should run from date that his employment was terminated, January 15, 2007. For the wage loss award, interest should run from the mid-point between January 23, 2007 (the day the complainant would have been able to resume work) and May 1, 2007 which is the estimate of the date the complainant commenced full-time employment as a roofer. That mid point date is March 13, 2007. Interest on the wage loss award runs from that date to the date of this Decision.

45Post-judgment interest on the awards is payable pursuant to s. 129 of the Courts of Justice Act.

Orders For Future Compliance

46The Commission also requested the following:

• The respondent will establish and implement a comprehensive written anti-discrimination and anti-harassment Policy (the “Policy”) that conforms to the requirements of the Code. The Policy should address, among other things, discrimination on the basis of disability, and how accommodation requests brought by management or non-unionized employees should be handled.
• The respondent will post the above-noted Policy in a plain and obvious location at its place of business and distribute a copy of the Policy to all existing and new employees.
• The respondent will provide, at its expense, all members of its management staff with mandatory training on the Policy.
• The respondent will post Human Rights Code cards, provided by the Commission, at its workplace in a prominent location that is visible and accessible to all employees.

47There was limited evidence given in the hearing that related to this request. While there was no evidence given about a human rights policy, there was reference in the hearing to the respondent having a modified work program including light duty jobs, although it appeared to be related to workplace safety and injuries on the job. Further, the evidence suggested that at least the supervisor, Mr. Boah, had received human rights training already although he was unsure of when it occurred and no details were provided on whether it included accommodation of employees with disabilities.

48Notwithstanding the evidence, the respondent raised no specific objection to the particular remedies sought should the Tribunal find a violation.

49Section 45.2 of the Code provides that the Tribunal may make an order directing any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.

50Having regard to my specific findings in this case, I find it appropriate to order that the respondent develop a policy and provide training, but that the policy and training be specifically focussed on the accommodation of employees with disabilities. Further, having regard to the limited nature of the evidence presented, I have made the order conditional such that a policy shall be developed and training provided to the extent such policy has not been developed and such training has not been given to the designated individuals.

Costs

51The respondent specifically requested in its written argument that a conference call be scheduled so that it may make oral submissions in support of a request for costs. The request is denied as the Tribunal has no jurisdiction to award costs (See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405).

ORDER

52Accordingly, the Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondent shall pay the complainant $5,000.00 as monetary compensation for the infringement of his right to be free from discrimination;

2. Within 30 days of the date of this Decision, the respondent shall pay the complainant $ 4,760.00 minus applicable statutory deductions, as compensation for loss of employment income;

3. Pre-judgment interest shall be paid in accordance with the applicable rate pursuant to the Courts of Justice Act. Pre-judgment interest on the $5,000.00 shall run from January 15, 2007 until the date of this Decision; and on the $4,760 shall run from March 13, 2007 until the date of this Decision.

4. Post-judgment interest on all amounts shall be paid at the applicable rate pursuant to the Courts of Justice Act. for any amounts not paid within 30 days of the date of this Decision.

5. Within 90 days of the date of this Decision, Tri-Krete Limited shall, if it has not done so already:

(i) establish and implement a comprehensive written policy (the “Policy”) that addresses the accommodation of employees with disabilities. The Policy should conform to the requirements of the Human Rights Code and should address, among other things, discrimination on the basis of disability, and how accommodation requests brought by management or non-unionized employees should be handled.

(ii) post the Policy in a plain and obvious location at its place of business and distribute a copy of the Policy to all existing and new employees.

(iii) provide, at its expense, all members of its management staff with mandatory training on the Policy; and

(iv) post Human Rights Code cards, available from the Commission, at its workplace in a prominent location that is visible and accessible to all employees.