Boncori v. TRW Canada Limited, 2009 HRTO 2266

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosario Boncori

Applicant

-and-

TRW Canada Limited

Respondent

case Resolution Conference DECISION

Adjudicator: Mark Hart

Date: December 29, 2009

Citation: 2009 HRTO 2266

Indexed As: Boncori v. TRW Canada

APPEARANCES BY

Rosario Boncori, Applicant ) Self-represented

TRW Canada Limited, Respondent ) Michael Failes, ) Counsel )

1The Application in this matter was filed on July 20, 2008 and pertains to a complaint that had been filed with the Ontario Human Rights Commission on January 9, 2007 alleging that the applicant had experienced discrimination in employment because of his disability and reprisal.

2In a Case Resolution Conference Decision, dated October 22, 2008 (2008 HRTO 178), the Application was dismissed in part pursuant to s. 45.1 of the Code, on the basis that part of the subject-matter of the Application had been appropriately dealt with by an arbitration proceeding. However, the remaining part of the Application, namely paragraphs 3 and 7 of the original complaint, were found not to arise from the same facts and to involve different issues than were addressed in the arbitration proceeding.

3The allegations as set out in paragraphs 3 and 7 of the complaint are that the applicant experienced harassment because of his disability by his supervisor when working in the RS Socket Operator position and that this harassment was not appropriately dealt with by management.

4The Case Resolution Conference (“hearing”) in this matter was held on November 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. I heard from the applicant and two witnesses who testified on his behalf, as well as from three witnesses who were called on behalf of the respondent. All parties were afforded the opportunity to cross-examine opposing witnesses after I had completed my questioning.

Background

5The applicant is a unionized employee with a seniority date of May 10, 1993 who has worked for the respondent in a variety of jobs. The applicant experienced a workplace accident on July 15, 1994 that resulted in a back injury. The applicant returned to work following his accident. He was off work in November 2003 on account of symptoms related to his injury but was able to return to the position of RS Socket Operator. He remained in that position until October 2004 when he again went off on disability leave.

Harassment allegations

6The harassment is alleged to have occurred in relation to events leading up to June 7, 2004, when the applicant was given a verbal warning related to starting and stopping times, and culminated in the applicant’s three day suspension in September 2004 when he refused to attend a meeting to address his absenteeism.

June 7, 2004 verbal warning

7The evidence before me indicates that there was a longstanding issue at the respondent’s plant about starting and stopping times for employees. Apparently, at one point, there was an “honour system” whereby employees were allowed to leave their work station once a requisite quota of material had been produced. Management determined that this was not a desirable way to conduct business, as it was felt that this led to employees rushing their work and potentially creating greater amounts of scrap.

8As a result, a decision was taken by management to more strictly enforce the collective agreement provision requiring employees to remain at their work station until five minutes before the end of their shift. This was communicated to the applicant and other employees at the start of his shift on June 3, 2004 by the applicant’s supervisor, Bernie Desjardins, who was acting on instructions from his manager.

9There is no dispute that at 2:40 p.m. on June 3, 2004, Mr. Desjardins conducted his rounds and noted that the applicant was not at his work station. The applicant’s shift that day ended at 3:00 p.m. Mr. Desjardins addressed this with the applicant the next day, and the applicant apologized for not being at his work station and told Mr. Desjardins that it wouldn’t happen again.

10On Monday, June 7, 2004, the applicant was called into a meeting and was given discipline in the form of a verbal warning, which is the lowest level of discipline meted out by the respondent.

11The applicant alleges that the imposition of this discipline was harassment because of his disability. This is not supported by the evidence. The evidence of the respondent’s witnesses, which I accept, is that the issue of starting and stopping times was a longstanding issue and steps were being taken at that time to more rigorously enforce the collective agreement. The fact that starting and stopping times were a plant-wide issue was supported by one of the union representatives who was called to testify on the applicant’s behalf, and is also supported by documentary evidence of other employees who were disciplined around this same period of time for the same infraction.

12The applicant takes issue with the fact that Mr. Desjardins did not advise him of the pending discipline when he spoke to the applicant on June 4, 2004 or on the following day (a Saturday) when the applicant was also at work. Mr. Desjardins’ evidence is that the decision to impose discipline on the applicant was made by his manager later on Friday, June 4, 2004, and Mr. Desjardins quite candidly stated that he didn’t advise the applicant of the pending discipline prior to the June 7, 2004 meeting because he didn’t have to. There is nothing in the evidence to support that failing to notify the applicant of the pending discipline prior to the June 7, 2004 was related to his disability or is capable of amounting to harassment.

13The applicant also alleged that since he had come under Mr. Desjardins’ supervision, he had been subjected to a series of incidents that are alleged to have been part of a pattern of harassment because of his disability. While the applicant raised general concerns about Mr. Desjardins over-scrutinizing and over-monitoring his work, attempting to assign him to work beyond his restrictions, not being aware of his restrictions, and making comments that suggested that the applicant was not pulling his weight, the applicant’s evidence and the material filed with the Tribunal was devoid of the kind of specific factual details required to support these allegations, such as specifics as to when these alleged incidents occurred, who was involved, what happened, etc.

14It also appears from the evidence of the applicant’s own witness that Mr. Desjardins was a supervisor whose management style rubbed a number of employees the wrong way. Mr. Desjardins was described by one witness as being a “hoverer”, meaning that he would hover over an employee’s work station to scrutinize the work being performed. In my view, to the extent that the applicant may have experienced problems with Mr. Desjardins, it is more symptomatic of this supervisor’s general management style, and does not support that the applicant was being harassed or treated differently because of his disability.

15The applicant also raised a specific incident that is alleged to have occurred on June 5, 2004, when the applicant had agreed to work on a Saturday. While working that day, Mr. Desjardins came up to the applicant and reminded him that he needed to remain at his work station until five minutes before the end of his shift. Mr. Desjardins’ evidence is that he did this because things tend to be more relaxed when employees are working on a weekend, and he wanted to be sure to give the applicant a “heads up” that he needed to remain at his work station. The applicant took offence to Mr. Desjardins’ comment and asked to be allowed to leave early. This was refused by Mr. Desjardins because the applicant had no good reason for leaving and Mr. Desjardins was concerned that he may not be able to reach the production target if the applicant left. I see nothing in this incident that provides any support for the applicant’s claim of harassment because of his disability.

16The applicant raised another specific incident that occurred on Monday, June 7, 2004, when there was no work in the applicant’s normal area. Mr. Desjardins assigned two employees to work on sorting a box in the Econoline and asked the applicant to work on the hand clamps. The applicant objected to this, as he had greater seniority than the employees assigned to the Econoline. Mr. Desjardins advised the applicant that he was being assigned to work on the hand clamps because the work was easier. Mr. Desjardins’ evidence at the hearing, which was not disputed by the applicant, was that working on the Econoline would involve lifting 60 lb. boxes, which was beyond the applicant’s restrictions. The applicant agreed to go work on the hand clamps. Once again, in my view, there is nothing in this incident that provides any support for the applicant’s claim of harassment because of his disability.

17Before leaving this aspect of the case, I need to address a comment attributed to Mr. Desjardins in a report prepared by Jim Whitehead dated July 26, 2005 (the “Whitehead Report”). This report will be addressed in more detail below. However, in the course of the Whitehead Report, the statement is attributed to Mr. Desjardins that he found the applicant “difficult to deal with due to his uncooperative nature using his medical conditions as an excuse to pick and choose jobs and associated tasks”. When asked what he meant by this comment, Mr. Desjardins did not specifically recall, but indicated that it may have been related to the issue around the assignment of the applicant to the hand clamps. It also was submitted by respondent counsel in final argument that this comment needs to be taken in the context in which it was made, which was sometime after Mr. Whitehead was assigned to conduct an investigation in October 2004 and when further issues had arisen relating to the applicant’s accommodation issues which were the subject of a grievance arbitration proceeding.

18In my view, at its highest, this comment may indicate an unfortunate and inappropriate discriminatory attitude by Mr. Desjardins towards the accommodation of an employee with a disability. However, in order to support a finding of a violation of the Code, I must be able to discern some link or connection between such an expressed attitude and some specific action that was taken against the applicant. I find no basis in the evidence to support any such link in relation to the specific events that form the subject matter of this Application. The applicant was given a verbal warning because he was not at his work station when he was supposed to be, at a time when the respondent was more rigorously enforcing the collective agreement. The applicant was later reminded of his need to remain at his work station. The applicant, although the senior employee, was assigned work that was within his restrictions rather than work that was beyond his restrictions. Nowhere in these specific events do I see a discriminatory attitude on the part of Mr. Desjardins at work.

19Finally, I note that the applicant filed a grievance against the verbal warning issued to him on June 7, 2004, and this grievance was resolved with the applicant’s agreement as of September 27, 2004 on the basis that this discipline would be removed from the applicant’s file.

The 3 day suspension

20On August 27, 2004, the applicant was sent a summary of his absenteeism record and was required to attend a meeting on September 9, 2004 to discuss his absences and to bring any documentation he may have to substantiate his absences. The evidence indicates that whenever an employee’s absenteeism record exceeds the plant average, this triggers a review by Human Resources that may result in the issuance of such a notice, depending upon the number and duration of the absences and whether there is any medical documentation on file to support the absences. While there was some suggestion in the evidence of the applicant’s witnesses that there may be some flexibility at the plant level as to whether an absence is reported, the evidence indicates that once the matter gets to the level of a review by Human Resources, there is consistency in approach as to when these notices get sent out.

21The applicant alleges that the timing of the issuance of this notice is suspicious, as he had been in Health Services on August 19, 2004 to request an ergonomic chair as part of the accommodation required for his disability, and on August 26, 2004 a note was presented to Health Services about this which resulted in the preparation of a health status update. The respondent’s evidence, which I accept, is that this information may have been shared with the Health and Safety person, but was not known to Human Resources at the time the absenteeism notice was prepared and was not a factor in why the notice was issued at this time.

22The applicant refused to attend the September 9, 2004 meeting, primarily on the basis that the prior issues he had raised regarding how he was being treated by Mr. Desjardins had not yet been addressed. In advance of the meeting, the applicant had prepared a letter to this effect, which was transmitted to management via the applicant’s union representative. Management made several efforts to convey to the applicant that his refusal to attend the meeting would be regarded as insubordination, to no avail. The applicant ultimately was required to leave the premises that day as a result of his refusal to attend the meeting.

23The respondent’s evidence is that management considered terminating the applicant’s employment due to the premeditated nature of his insubordination, but had regard to his length of service and work record as mitigating factors. Representatives of the respondent’s Human Resources department also met with the applicant and after much discussion, eventually got him to agree that he could have conducted himself differently on the day of the meeting. As a result, a three day suspension was imposed. In the circumstances, I find that this level of discipline was lenient and I find no basis to support that the imposition of this discipline was for any discriminatory reason.

24The meeting to discuss the applicant’s absenteeism record was later held on September 29, 2004, this time with the applicant in attendance. The applicant did not bring documentation to the meeting to support his absences, and as a result, 8 of his 20 absences were deemed to be culpable and the applicant was given a recorded verbal warning. However, the applicant was advised that if he provided documentation to support any of the culpable absences, the decision to impose discipline would be re-considered. On October 29, 2004, the discipline was removed as the applicant had provided documentation to substantiate 5 of the 8 absences at issue as being non-culpable.

25The applicant questions why he was given discipline rather than being afforded the opportunity to provide documentation to support his absences. The evidence of the Human Resources representative is that in some circumstances, she would not impose discipline at the meeting if the employee indicates that she or he has documentation and agrees to provide it within a certain timeframe. However, this witness’ evidence is that at the time of the meeting, she had no assurance from the applicant that he had or would provide such documentation. I also note that the notice for the meeting itself states that the applicant was to bring any supporting documentation to the meeting, and he was afforded over a month to obtain this documentation by the time the meeting was actually held. I see nothing in how the applicant was treated here that would support an allegation of discrimination or harassment because of his disability.

26It is important to note that the allegation raised in this case is that the applicant was being harassed by being required to attend the meeting to review his absenteeism record, rather than a challenge to the respondent’s absenteeism policy itself. In any event, the respondent was focusing upon absences for which it had no documentation to support that the absences were related to the applicant’s disability and afforded the applicant the opportunity to provide documentation to substantiate these absences. In these circumstances, I see nothing about the application of the respondent’s absenteeism policy to the applicant that would support a violation of the Code.

Allegations re Management’s response

27The applicant pursued allegations about how he was being treated by Mr. Desjardins through correspondence to various members of management during the period from June to October 2004.

28The applicant’s first letter is dated June 14, 2004 and is addressed to his supervisor, Mr. Desjardins. The applicant copied this letter to a number of individuals, including the then Human Resources Director. This letter is seven pages long and contains a recitation by the applicant of his perspective on the events of early June 2004 as discussed above. The letter concludes with a request to Mr. Desjardins that the recorded verbal warning issued on June 7, 2004 be rescinded by June 17, 2004, failing which the applicant says that he will request that his union lodge a formal complaint with the labour board and Workplace Safety and Insurance Board for the coercion, intimidation and harassment of an injured worker.

29Mr. Desjardins states that he would have forwarded this letter to Human Resources for response. The Director of Human Resources states that he took no action at this time in response to this letter, as no action was requested of him. On June 22, 2004, five days after the letter was sent, the applicant filed a grievance challenging the discipline he had received. No further steps were taken by the applicant at this time.

30The applicant wrote a further letter to Mr. Desjardins on August 9, 2004 to state that the issues raised in his prior letter still had not been addressed. Mr. Desjardins states that this letter too would have been forwarded by him to Human Resources. By this time, the discipline given to the applicant was already in the grievance procedure. As indicated above, this grievance ultimately was settled by the union with the applicant’s concurrence on September 27, 2004, with the discipline being removed from the applicant’s file.

31In my view, there was no violation of the applicant’s rights in relation to any failure by the respondent to take any other steps in response to the June 14, 2004 letter. I agree with the evidence given by the respondent’s Human Resources Director that no specific action was requested by the applicant in this letter other than the removal of the discipline from the applicant’s file, which as of June 22, 2004 was being addressed through the grievance procedure and which was resolved as of September 27, 2004.

32As noted above, the applicant refused to attend the September 9, 2004 meeting to review his absenteeism record on the basis that the issues raised in his June 14, 2004 letter had not yet been addressed. The evidence indicates that, at the meeting with Human Resources on September 13, 2004 to discuss his failure to attend the September 9 meeting, the applicant raised the respondent’s failure to address his June 14, 2004 letter. The Human Resources Director’s evidence is that he did not allow the meeting to get into a detailed discussion of this issue, as he wanted to keep the focus on the applicant’s failure to attend the September 9 meeting and the issue of what level of discipline should be imposed as a result. In light of the severity of the issue of the applicant’s wilful failure to attend the September 9 meeting, I see nothing inappropriate in the actions of the Human Resources Director at this meeting.

33Following the September 13, 2004 meeting and the imposition of the three day suspension, the applicant wrote a further letter dated September 23, 2004. In this letter, the applicant states that he believes that he is experiencing “discrimination of some kind” and further states that he has no alternative but “to lodge a formal complaint for the coercion, intimidation and harassment of an injured worker”. The applicant in this letter also formally references the respondent’s Managing Violent Behaviour in the Work Environment policy. At this point, in my view, the respondent was in receipt of a formal complaint from the applicant alleging discrimination and harassment in the workplace, and was required to take reasonable steps to respond to this complaint.

34On October 12, 2004, the applicant was advised that an investigation into his allegations would be conducted. The investigation was conducted by a Human Resources manager (Jim Whitehead) from another plant, with interviews conducted with the applicant’s supervisor, the Human Resources Director and another Human Resources supervisor. The manager worked from the basis that “in order for discrimination or harassment to exist, it is necessary to demonstrate that [the applicant] was treated differently than other employees under similar circumstances”. While not a complete working definition of discrimination, I find that in relation to the allegations raised by the applicant, it was an appropriate basis from which to conduct the investigation. In order for the applicant to establish a violation of the Code in relation to the nature of the allegations he has raised, it is necessary for him to establish that the adverse treatment of which he was complaining was “because of” his disability, which in the circumstances of this case would require some evidence that he was treated differently and that his disability was a factor.

35This investigation found that there were no factual grounds for the applicant’s allegations of discrimination and harassment, on the basis that other employees also were disciplined for use of work time at or around the same period of time and that other employees with lower absenteeism percentages were required to attend absenteeism review meetings at or around the same time as the applicant. The investigation found that the Human Resources department at the plant had a sound system for monitoring discipline and ensuring consistency, and that the actions taken in relation to the applicant were appropriate in the circumstances and consistent from employee to employee. I find that there was nothing inappropriate about the conclusions drawn from the investigation, which are consistent with my findings.

36A summary of the investigation dated July 26, 2005 (the Whitehead Report) was provided to the applicant. The evidence indicates that the applicant, through his union representatives, had to follow up several times in order to obtain a copy of this report. While I find that there was undue delay in the preparation and issuance of the investigation report, I do not find that this alone is sufficient to support a violation of the Code in the circumstances of this case.

37The applicant responded to the investigation report by letter to the respondent company dated September 26, 2005, in which the applicant took issue with the investigation findings and the investigator’s failure to interview key witnesses.

38The respondent subsequently directed that a second investigation be conducted by a Human Resources manager from the respondent’s parent company in the United States. This individual attended at the respondent’s plant on November 7 and 8, 2005 to conduct interviews with nine witnesses, including the applicant and witnesses who were supportive of the applicant’s position.

39This investigation also found that no actions on the part of management violated the legal and ethical standards set forth in the respondent company’s Code of Conduct. The investigation found that there was no rationale on the part of management to single out the applicant, and the series of events at issue was driven by established rules and protocol that were standard at the plant. While somewhat sympathetic to the frustration experienced by the applicant, the investigation specifically found that enforcing and communicating rules and discipline to the applicant was appropriate and was not harassment, which once again is consistent with my findings.

40Due to the demands of the investigator’s schedule, the investigation report was not prepared until October 30, 2006, almost one year later, perhaps in response to the applicant’s letter dated August 14, 2006 in which he expressly raises the matter of the November 2005 investigation and states that he is still awaiting a response. However, the October 30, 2006 report was never disclosed to the applicant, because the report also addressed the accommodation issues that were the subject of ongoing litigation through the grievance arbitration procedure.

41In the specific circumstances of this case, I do not find that either the delay in the preparation of the second investigation report or the respondent’s failure to disclose this report is sufficient, in and of itself, to amount to a violation of the Code. While there is no question that the second report should have been prepared at a much earlier time and should have been shared with the applicant at that time, it is notable in my view that the respondent already had conducted one investigation into the applicant’s allegations and had reached conclusions that gave proper regard to human rights principles and that are consistent with my findings. In my view, this first investigation already had satisfied the respondent’s obligation under the Code to take reasonable steps in response to the applicant’s complaint of harassment and discrimination, such that any delay or disclosure issues in relation to the second investigation cannot support a Code violation.

42For all of the foregoing reasons, the Application is dismissed.