HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bernard Musoni
Applicant
-and-
Logitek Technology Limited, Mateen Zubairi, Larry Detlor and Micheal Lalande
Respondents
case Resolution Conference DECISION
Adjudicator: Dale Hewat
Indexed as: Musoni v. Logitek Technology
AppearanceS BY
Bernard Musoni, ) On his own behalf Applicant )
Logitek Technology Limited, Mateen Zubairi ) Ross Dunsmore, Larry Detlor and Micheal Lalande, ) Counsel Respondents )
Background and Procedure
1This is an Application filed July 3, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on April 9, 2008 and abandoned upon filing this Application with the Tribunal.
2The Case Resolution Conference was conducted on February 17 and 18, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. The following witnesses testified: Bernard Musoni, Irone Grant and Peter Uzobakiliho and Maria Oveido for the applicant and Larry Detlor and Catherine Ludlow for the respondents. In finalizing my decision, I refer only to testimony necessary to support my findings about the applicant’s allegations.
Nature of the Dispute
3The applicant, Bernard Musoni, claims discrimination in employment on the basis of ethnic origin pursuant to sections 5(1) and 9 of the Code with respect to his termination from employment with the respondent, Logitek Technology Limited on March 6, 2008. The applicant self-identifies as a bilingual Canadian who was born in Rwanda.
4The respondent, Logitek Technology Limited (“Logitek)”) provides supply chain business process automation solutions in a computer software format to the Canadian retail industry. Logitek has a diversified workforce with employees from 13 different countries. The applicant was hired on October 15, 2005 as a bilingual Customer Service Agent (“Agent”) in Logitek’s Global Support Centre (the “Centre”). The applicant’s employment was terminated on March 6, 2008 without cause on two week’s notice. However, the respondent asserts that the termination was related to the applicant’s poor performance and improper attitude.
5The applicant alleges that starting in November 2007, he was subjected to unfair and discriminatory actions at work following the hiring of a new supervisor Larry Detlor. The applicant asserts that the fact that Detlor knew he was from Rwanda, and the frequency of the workplace incidents in a short space of time gives rise to an inference that his ethnic origin played a role in the respondents’ actions. Specifically, the incidents the applicant relies on are:
a) the applicant’s November 2007 Vacation request
b) the revision of the IVR message recording system
c) the December 2007 Order Activity Report
d) the “Know Your Customer Project”
e) refusal to respond to a French call
f) the request to communicate with a co-worker in French
g) the “HBC” complaint.
6The respondents assert that the applicant has failed to establish a connection between the applicant’s ethnic origin and the respondents’ action. Further, the respondents assert a non-discriminatory explanation for each incident.
Scope of the Application
7The Application made reference to a separate criminal legal proceeding and contained many documents pertaining to that proceeding. The legal proceeding dealt with criminal allegations of harassment by the applicant’s former girlfriend and the issuance of a Peace Bond order for the applicant. In the applicant’s submissions, he alleged that there was a connection between the criminal legal proceeding, his subsequent criminal appeal, his complaint to the Law Society and the human rights complaint.
8At the beginning of the Case Resolution Conference, I ruled that the criminal legal proceeding and subsequent events related to the applicant’s appeal and complaint to the Law Society of Canada are completely unrelated to his application under the Code. I advised the applicant that the case before me pertained only to his complaint of discrimination in employment on the basis of ethnic origin.
9After the applicant had finished his case, he requested that he be given time to try to contact his former girlfriend to see if she would provide testimony. I advised the applicant that he had completed his case and that it was too late to seek additional testimony. Even if I were to have delayed the case to allow the applicant to seek her testimony, I reminded the applicant that testimony relating to the criminal legal proceedings and the applicant’s state of mind at the time is not relevant to the case before me.
Decision
10The Application is dismissed. What follows are my reasons.
The Global Support Centre – Background
11The Centre, consisting of four Agents, provides direct customer support via telephone and email. The office area is small and configured so that the four Agents are divided into two groups sitting side by side with a cubicle divider between the groups. There is no privacy in the room and everyone can hear each other. Each Agent has a phone and computer screen on his/her desk. All calls coming into the Centre are logged and each Agent has a constant visual notification of the calls on his/her computer screen. Calls and emails come into the Centre in English and French. Although the applicant disagreed that he was hired solely due to his French speaking ability, it is clear that the applicant was the only Agent who could answer phone calls and emails in French and that all French calls and emails were routed to him.
12It was not disputed that the Centre plays a very important role within Logitek as the first point of contact for clients who need instruction with software installation or who are experiencing technical difficulties. It was also undisputed that providing “awesome customer service” was a crucial goal for Logitek’s customer retention that was frequently reinforced with all employees, including the Agents. In terms of the provision of customer service, it was also agreed that answering and following-up with phone-calls was a very important priority for Agent, even over email requests.
13Larry Detlor was hired in June 2007 to improve the Centre by creating better policies and team based strategies and to develop improved infrastructure with other departments. His core focus was to reinforce upon the Agents the high importance of customer support service and care. There was no dispute that Logitek has an “open door” policy with management and an escalation policy to deal with urgent customer issues. Mr. Detlor also characterized his management style as coaching based. Starting in January 2008, he implemented an Agent Performance Coaching Log (the “Coaching Log”) that was used to document incidents, provide feedback and set actions or resolutions in consultation with individual agents. The applicant had full access to the Coaching Log.
14The applicant placed great reliance on the fact that he had received a 13% salary increase in October 2007. Mr. Detlor testified that all of the staff at Logitek received a large increase because of company profits that year. He explained that for the two previous years there were no salary increases for budgetary reasons. The salary increase, therefore, was a way to bring all employees’ wages to a competitive level and to make up for the lack of increases in the prior two years. It was agreed that the applicant’s performance review for 2007 indicated that the applicant’s performance was at an acceptable level 3 out of 5 in Performance Level criteria. The Performance Management document used to assess the applicant notes some good areas of performance but also shows a number of areas where applicant’s performance had moved from a “good” to “acceptable”.
Workplace Incidents
15Much of the evidence in the hearing focused on a number of workplace incidents that occurred between January 11, 2008 until the applicant’s termination on March 6, 2008 that were documented in the applicant’s Coaching Log. The applicant argued that each of the incidents were simply ordinary matters that would not normally be problematic. He also alleged that some of the information with respect to the HBC incident was fabricated. In addition, evidence was provided about the applicant’s vacation request and the applicant’s assertion that Mr. Detlor criticized his French accent.
16Below is my summary of each of the incidents. Wherever there is a conflict in testimony, I have noted it and indicated the version of events that I accept based on the candor of the witness and what makes the most reasonable sense given the totality of evidence.
The Vacation Request
17In November 2007, the applicant submitted a vacation request for the first week of January 2008. The applicant had bought an airline ticket but did not have enough days accrued for vacation. The applicant testified that he did not understand why Mr. Detlor would not sign his vacation request and why the request was delayed by the accounting department. He also had to speak to higher level management regarding his request. The applicant also questioned why Cathy Ludlow, Assistant Corporate Manager, suggested that he need a letter form Logitek for his travel oversees.
18Mr. Detlor explained that the vacation request was forwarded to accounting because he was not clear on Logitek’s policy for non accrued vacation days and that he believed he did not have the authority to approve the request. He also explained that the letter referred to by the applicant was a standard travel document that Logitek would provide to staff travelling oversees in case confirmation of employment is required. In the end, the accounting department adjusted the applicant’s vacation accrual and his vacation request was approved. The applicant did not request the travel document letter.
The IVR Message Recording Revision
19In October 2007, the applicant was asked to attend a meeting with Mr. Detlor and Ms. Ludlow regarding Logitek’s message recording system or IVR. Prior to this time, Logitek’s message greetings and prompts were recorded by seven different staff members, including the applicant. Logitek had hired a phone specialist and decided that it needed to streamline the IVR, both in its content and voice recordings. It was determined that the IVR would be best using only two similar sounding female voice recordings, one in English and the other in French. The applicant’s voice had been on the IVR since September 2007 for all of the French greetings and prompts. The applicant had been part of the meetings to re-organize the IVR and had been asked to write the scripts for the French greetings and prompts. In this particular meeting, the applicant was advised that his voice would no longer be on the IVR and the recordings would be done by Ms. Ludlow and the applicant’s co-worker Catherine Karasnoghir.
20The applicant agreed that the use of two female voices for the IVR would be a good thing. However, he also claimed that, during this meeting, Mr. Detlor told him that he had a horrible accent. In support of this allegation, the applicant asserted that he previously told Mr. Detlor that he was from Rwanda. However, Mr. Detlor could only recall that the applicant was from Africa.
21Both Mr. Detlor and Ms. Ludlow testified in response to this allegation and categorically denied that Mr. Detlor ever said that the applicant had a horrible accent. Ms. Ludow remarked further that she would have clearly recalled this type of criticism and that it is inconsistent with Logitek’s work environment. Mr. Detlor also stated that he cannot speak French and that he would not be able to discern whether a particular French accent was good or bad.
22Based on my review of the testimony related to the allegation of “horrible accent”, I believe the evidence of Ms. Ludlow and Mr. Detlor. The applicant had been hired and relied upon as a bilingual Agent who had constant verbal interaction with Logitek clients. There is no evidence to refute Mr. Detlor’s statement he was not capable of analyzing the quality of a French accent. There was no other evidence about any concerns about the applicant’s accent in his interaction with clients. As well, Mr. Detlor had asked the applicant to talk in French with a co-worker to assist her with conversational French. Therefore, it does not make sense that Mr. Detlor would have criticized the applicant’s accent. As well, from a business stance, the overhaul of the IVR is reasonable. All of the testimony pointed to the fact that one of Logitek’s most important goals was to provide the highest quality of customer service, which would begin with its telephone greetings and prompts.
23The applicant had been included in the process to streamline the IVR and had been asked to script the French recordings. He also agreed that it made sense to have only female voices for the recordings.
The Order Activity Report
24One of the applicant’s assigned duties was to complete the Centre’s monthly Order Activity Report and to forward the Report to the accounting department for reconciliation. The applicant’s last day of work before his vacation was December 27, 2007 and the respondents allege he left without completing the Report. His failure to complete the Report was documented in his Coaching Log on January 11, 2008 and the applicant was spoken to by Mr. Detlor about missing the December deadline.
25The applicant denied that he was asked by Mr. Detlor to complete the Report before leaving on vacation. In addition, the applicant claimed that the Report was often not completed by the end of each month because of information required from the accounting department.
26Irone Grant, a co-worker and one of the applicant’s witnesses, testified that it was the applicant’s responsibility to complete the monthly Order Activity Report by the end of each month. Ms. Grant also confirmed that everyone in the office knew about the deadline because the Report had to be sent to the accounting department for reconciliation.
27On the whole, I believe Mr. Detlor’s testimony that he advised the applicant that he was required to finish the Report before leaving on vacation. Mr. Detlor was clear about his communication with his staff and was also trying to tie up loose ends before he left on his vacation.
The Know Your Customer Project
28The Know Your Customer Project (“the Project”) was assigned to the Agents by Mr. Detlor and his manager, Micheal Lalande, in early January 2008. The Project, which was a high priority for Logitek, involved reviewing and completing any missing customer information for Logitek’s database. Mr. Detlor and Mr. Lalande initially met with the Agents and advised that the Project needed to be completed and that in order to accomplish this goal each Agent would be assigned a day to work on it. During the meeting, it was determined that the Agents would decide amongst themselves about the scheduling of days and would report back to Mr. Detlor, which they did. The applicant, however, was not at the Agents’ Project scheduling meeting.
29There was conflicting evidence about whether the applicant refused to attend the meeting or whether he was aware of the meeting. Ms. Grant’s undisputed testimony indicated that an email was sent to the team about the Project scheduling meeting. At a minimum, it is clear that the applicant was provided notice of the meeting and did not attend.
30On January 15, 2008, the applicant received his first verbal warning documented in the Coaching Log for his refusal to work on the Project. The evidence was clear that Mr. Detlor held a conference call meeting with the Agents on January 14, 2008 to review work and to discuss the Project. During the call, Daniel Middis a co-worker reminded Mr. Detlor that the applicant’s Project day had been scheduled for January 15, 2008. The applicant stated that he had things to catch up on following his return from vacation and that he wanted to start his Project assignment the following week. Mr. Detlor declined the applicant’s request and then an argument ensued between them in which the applicant told Mr. Detlor that he did not like to be told what to do. Mr. Detlor ended the conference call and followed-up immediately on the phone individually with the applicant.
31According to the applicant, Ms. Grant agreed to take-over his Project responsibility for January 15, 2008. Mr. Detlor then spoke with Ms. Grant and told her that she was not permitted to take the applicant’s day and also clearly told the applicant that he was expected to work on the Project January 15, 2008.
32The applicant did not work on the Project on January 15, 2008 despite a further email from Mr. Detlor in which the applicant responded that he thought Ms. Grant was dealing with the assignment. The applicant ended up working on the Project on his assigned day the next week.
Applicant’s Refusal to Answer a French Call
33On February 13, 2008, the applicant received another notation in his Coaching Log and a second verbal warning for not answering a French call. The evidence was undisputed that the applicant was asked by his co-worker Daniel Middis to answer a French call and refused to take it. The applicant stated that he told Mr. Middis that he was working on the Project and that calls could go to his voicemail. In fact, the applicant had re-routed all of his calls to voicemail.
34The applicant denied that he and Mr. Middis were yelling at each other but both Mr. Detlor and Ms. Grant clearly recalled a loud argument between the two. Ms. Grant testified that this was not the first time she had heard the applicant yelling. She also indicated that the applicant was stubborn and often wanted to do things his own way. Mr. Detlor testified that he was outside the Centre office area and could hear loud voices and that he entered the area to deal with the dispute.
35The applicant claimed that Mr. Detlor and Mr. Lalande were conspiring against him and their reaction was out of proportion. However, in his cross-examination, the applicant agreed about the priority of answering calls and that he was the only Agent who could take French calls. He also agreed in general that yelling would have been wrong and that if requested by a supervisor, he must answer a phone call.
36Based on the evidence, I prefer Mr. Detlor’s and Ms. Grant’s versions that that there was an argument between the applicant and Mr. Middis and that the applicant had let one French call go to voicemail and refused to answer a second French call when ordered by Mr. Detlor. The applicant also got up from his desk and left the office area despite his supervisor’s request. Mr. Detlor testified that he advised Mr. Lalande about the incident and that both the applicant and Mr. Middis were disciplined for the incident.
Refusal to Converse in French with Co-Worker
37On February 29, 2008 the applicant received another notation in his Coaching Log concerning his refusal to speak in French with his co-worker Katherine Karasnoghir. Ms. Karasnoghir began working in the Centre in the fall of 2007. She was able to speak French but needed some practice before she could be in a position to deal with customer calls or emails in French. The applicant and Ms. Karasnoghir sat next to each other. When she started in the Centre, Mr. Detlor asked the applicant if he could try to talk to Ms. Karasnoghir in French and assist her with French as needed. The applicant did comply with this request generally.
38Toward the end of February 2008, Ms. Karasnoghir had requested additional assistance with her conversational French. Mr. Detlor asked the applicant if he could speak with her only in French to her in order to help build her conversational French skills. The applicant denied that he refused this request and instead asserted his right in Canada to speak either English or French, questioned Logitek’s language policy, and stated that it was not his responsibility to teach his co-worker French. Mr. Detlor testified that he ended up organizing outside assistance in French for Ms. Karasnoghir. From Mr. Detlor’s viewpoint, this incident displayed the lack of the applicant’s dedication to teamwork.
The HBC Incident
39The last incident that led to the termination of the applicant’s employment happened on March 5, 2008. On that day, an email was received by Logitek’s technology department from Susan Manella, a senior representative at Hudson Bay Company (“HBC”) regarding dissatisfactory Centre service by the applicant.
40The evidence about the relationship between HBC and Logitek was agreed to by the applicant. Specifically, it was acknowledged that HBC is one of Logitek’s largest and important accounts and that HBC had a long-standing relationship with Logitek. In addition, it was generally known that HBC had recently been sold causing Logitek to be particularly sensitive to providing the highest level of customer service to HBC to ensure that the HBC remained a client. The applicant agreed that if Logitek was to lose HBC’s business, it would be serious.
41The problem that occurred on March 5, 2008 was that a critical business application system was down that seriously affected HBC’s ability to schedule shipping with its clients. According to HBC’s complaint, an email had been sent to the Centre which was followed up by a phone call seeking technical support for the outage. The applicant disputed that he was contacted by one of HBC’s staff, namely Angie Symonds, and asserted that Logitek fabricated that evidence. He agreed however, that he spoke with Susan Manella and told her to re-send an email about the system breakdown. He testified that he thought the outage was being dealt with by Ms. Grant. Nevertheless, he announced to the Agents that the system was down yet he did not take any steps to escalate the issue. The applicant also noted that outages like the one on March 5, 2008 occurred all of the time so from his point of view the situation was not out of the ordinary.
42The applicant’s testimony about how he handled the outage with HBC was inconsistent because he concedes that he did have a conversation with Susan Manella and did announce the system being down but then claimed that Ms. Grant was dealing with it. He also requested a second email from HBC but did nothing. In Ms. Grant’s version of events, substantiated by Mr. Detlor, she claimed that she was dealing with a separate inquiry.
43Mr. Detlor was alerted about HBC incident the following day through an email from Logitek’s technology department. He investigated the matter and determined that the applicant had received the original email from HBC, was fully aware of the escalation process for dealing with emergency outages but did nothing to address the matter. Mr. Detlor testified that the complaint from HBC was a very serious issue. He followed up with Mr. Lalande and recommended that the applicant receive a suspension. However, the final decision was made by Logitek’s Chief Executive Officer which resulted in the applicant receiving his letter of termination on March 6, 2008.
Conclusion
44Based on my review of all of the evidence regarding the workplace incidents, I find that the applicant has not established an inference that his ethnic origin played any role in any of the workplace incidents or the termination of his employment. Further, I find that the respondents have established a non-discriminatory explanation for their actions. The evidence showed that the applicant did not follow instructions and did not cooperate as a team player. Even his own witness, Ms. Grant, conceded that the applicant was stubborn and often liked to do things his own way. The applicant may have been frustrated by the swiftness of Logitek’s decision to terminate his employment and the two week’s notice provided, but my role under the Code is to review the facts for discriminatory conduct not to review whether the termination was wrongful in terms of employment law jurisprudence.
45In addition, I do not find that there was any evidence of discriminatory treatment with respect to the applicant’s vacation request. I find that the applicant was given preferential treatment because he was granted the three days non-accrued vacation and he took the vacation. At best, there was a misunderstanding by the applicant of the reasons why Mr. Detlor would not approve the request and suspicion by the applicant of the delay in the processing of the request. The applicant had purchased an airline ticket before he made the vacation request even though he knew that he had not accrued sufficient vacation days for 2008. Due to the accrual issue, the accounting department needed to get involved since Mr. Detlor correctly assumed he did not have the authority to approve non-accrued vacation. The offer of the travel document letter was simply a standard letter that Logitek would provide to any employee travelling oversees to confirm employment in the event of any questioning by Canada Customs or any other foreign immigration office.
46Other than the allegation with respect to the applicant’s “horrible accent” which I found to be untrue, there was no evidence showing a connection between the applicant’s place of origin and how he was treated by the respondents. The applicant insisted that Mr. Detlor knew that he was from Rwanda but Mr. Detlor could only state that he thought the applicant came from Africa. In any event, all of the evidence pointed to the fact that the applicant’s issues related to his work performance that were discussed with him and documented in his Coaching Log.
Order
47Accordingly, in light of the above conclusions, I do not find a violation of sections 5(1) or 9 of the Code by any of the respondents. This Application is dismissed.
Dated at Toronto, this 4^th^ day of March, 2009.
“Signed by”
Dale Hewat
Member```