Ajayi v. Roxboro Business Services, 2009 HRTO 244

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Oluremi Ajayi

Applicant

-and-

Roxboro Business Services, Raj Hemraj and Delroy James

Respondents

Case resolution Conference Decision

Adjudicator: David Muir

Date: March 5, 2009

Citation: 2009 HRTO 244

Indexed as: Ajayi v. Roxboro Business Services

APPEARANCES BY

Oluremi Ajayi, Applicant ) Cecil Norman, Representative

Roxboro Business Services and Raj Hemraj, Respondents ) Orie H. Neidzviecki, Representative

No one appearing for Delroy James )

1This is an Application filed August 28, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On October 2, 2008, the corporate respondent and the personal respondent Raj Hemraj filed their Response to the Application.

Background

2A Case Resolution Conference was held on February 17, 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. I heard from the applicant, the respondent Raj Hemraj, and employees Al Falacio and Sharon Cashen.

3I am not satisfied the applicant delivered the application to the personal respondent Delroy James or that he received notice of the proceedings. Accordingly, the Application as against Mr. James is dismissed.

4The applicant self identifies as a Black African woman. The claim in the human rights complaint (the “complaint”) upon which the Application is based is two fold:

• First, the applicant alleged that she experienced a poisoned work environment as a result of incessant name calling and harassment by co-workers and supervisors which was known or ought to have been known to the respondent employer; and
• Secondly, the applicant alleged that she was terminated by the respondent employer while on a sick leave necessitated by workplace stress brought on by the poisoned work environment created by the harassment and discrimination experienced in the workplace.

Analysis

Poisoned Work Environment

5The applicant began her relationship with the corporate respondent, Roxboro Business Services (“Roxboro”) in 1998 through an employment agency. In January 2000, Roxboro became her employer. Roxboro is itself an in-house employment agency providing temporary employees to other enterprises, including Portable Packaging where the applicant worked most of her time while employed by Roxboro. This work included packaging of various products for suppliers, such as six-packs of beer and razor blades.

6Although an employee of Roxboro, the applicant was also often under the supervision of employees of the firms to whom she was assigned. Al Falacio was employed by Portable Packaging but at various times was in a supervisory relationship over the applicant. He had authority to direct Roxboro workers and would become involved the investigation of complaints.

7Her supervisors considered the applicant to be a good employee. In 2001, she was promoted to machine operator and then made a team leader. Her employment with Roxboro ended in August 2005.

8The applicant asserts that she was the only person identifiable as Black African employed by Roxboro. In her complaint, she stated as well that that co-workers made comments such as: “go back where you came from, this is not Africa”; “You guys have to work hard, we don’t, foolish African”; “HIV carriers”; “babo cloth”; “hungry old woman”; “go back to Africa for christ’s sake do not die here”.

9The applicant also alleged her supervisors were often participants in the harassment and discrimination. In particular two individuals, Al Falacio, the General Manager at Portable Packaging and the personal respondent Raj Hemraj, the on site supervisor at Promo Pak, where the applicant worked in the last several months before her employment ended were identified as persons in a supervisory capacity who participated in the discriminatory comments.

10At the Case Resolution Conference, the applicant endorsed the allegations set out in the complaint form and other written material filed for this hearing. Those allegations were quite general and, when asked for particulars of the specific incidents identified, the applicant often had to refer back to the human rights complaint form for details. As a result, I find that the applicant’s evidence so lacking in detail as to be unconvincing.

11At times, the applicant’s testimony contradicted the particulars contained in the complaint and statement of additional facts. For example, one of the allegations in the complaint is that the applicant’s workplace injury was treated less seriously because she was African. In her complaint, she claims a person identified as “Alfonzo”, subsequently identified as Al Falacio, was aware of the incident but did nothing to assist her. Yet, at the Case Resolution Conference, the applicant acknowledged Mr. Falacio was unaware of this incident. Similarly, the complaint and additional statements of fact identify Mr. Falacio as an active participant in the harassment of the applicant. However, when asked for particulars of his involvement in such conduct, she was only able to identify a single incident which was not contained in the complaint. The applicant testified that at a Christmas party (date unspecified), a co-worker referred to her, and all Africans, as HIV carriers. She became upset at this insult and challenged the co-worker. The applicant stated that Mr. Falacio overheard the conversation and interjected asking where she was from.

12Mr. Falacio denied ever being involved in such a conversation. He testified that he would not have condoned such a remark had he heard it and would not have interjected by asking where the victim of such conduct was from. He stated that he understood his obligations as a supervisor and had occasion to investigate other employee complaints of harassment. He also stated that it he would not have asked the applicant where she was from because he had known for some time that she was born in Nigeria. Mr. Falacio testified the applicant never approached him, although they talked frequently, with any concerns about her treatment by co-workers or others. I accept Mr. Falacio’s evidence that he was not a witness to the exchange described by the applicant and did not ask her where she was from in response to the disputed exchange.

13Mr. Falacio testified he had lived in Africa and that, because of this connection, became acquainted with other Roxboro employees from various parts of Africa. He testified his relationship with the applicant was quite friendly and that, after one trip to Nigeria, she brought him back a suit of traditional clothing which he gratefully accepted. The applicant did not deny this evidence.

14The applicant stated that, in 2004, she approached Mr. Falacio with her concerns and asked to be transferred away from the co-workers who were harassing her. She could provide no details of when or where these conversations took place. Mr. Falacio denied these conversations took place and stated the applicant was moved to the Promo Pak location (Walker’s Road) as part of a redeployment of the workforce because the work at the location where she had been was about to end and, in order to keep her working, he found work her a work location closer to her home. It appears that this move probably occurred in March 2005.

15I do not accept the applicant’s evidence of racial name calling, harassment and discrimination leading up to her move to the Promo Pak location. I accept the respondents’ evidence that her move to Promo Pak was not instigated by complaints of harassment but by a desire to keep the applicant working as much as was possible as she was a good worker.

16With the applicant’s move to the Promo Pak location, she came in contact with the personal respondent Mr. Hemraj for the first time. She stated in the complaint that she believes that she was sent to this new location in the hopes that she would quit because the work there was extremely heavy and she was the only woman expected to do that work. The applicant also stated that her supervisor assigned her heavy duties because she was the only woman. Asked what made the duties particularly heavy, she described having to move 6-packs of beer cans onto a conveyor.

17The evidence of the respondents was that the work at this site was not particularly heavy and that the heaviest item that employees would be required to move were single six packs of beer which weigh fewer than ten pounds. Some other items for packing would be quite light. The respondents also deny the applicant was the only female at this site. I accept the respondents’ evidence on these points.

18When she complained about the heavy work, the applicant alleged Mr. Hemraj derided her, suggested she leave her job and go back where she came from. She informed Mr. Hemraj’s supervisor about this harassment and name calling but nothing was done. Asked to provide details about the nature of Mr. Hemraj’s “derisive” comments, the applicant’s only detailed recollection was that Mr. Hemraj complained about her accented English. He denied making any derogatory comments.

19I do not accept the applicant’s evidence of name calling, verbal abuse, age related stereotyping or any other differential treatment at the Walker Road location While Mr. Hemraj may have commented on the applicant’s English, the circumstances in which the comments were made did not rise to the level of creating a poisoned work environment.

Termination of Employment

20I also find that there are serious inaccuracies alleged in the complaint and additional statement of facts filed with the Tribunal that affect the weight to be given to the applicant’s allegations in general and, particularly with respect to the allegation the applicant’s employment was terminated because she had taken a sick leave. For example, in the complaint and subsequent statements the applicant stated that the following events occurred over a number of months.

• in April 2005, Delroy James, allegedly a close friend of Mr. Hemraj, said to her that he was going to get her.
• on August 20, 2005, Mr. Hemraj said in front of co-workers that she had no sense and did not know what she was doing as team leader. Mr. Hemraj also stated he wanted her out of the workplace.
• on August 25, 2005, the applicant allegedly realized that the environment at work was affecting her health and immediately after work that day she went to see a doctor.

21However, at the Case Resolution Conference, the applicant testified that these events all occurred on August 25, 2005 - her last day of work and that she faxed the note she received from the doctor on August 25 to the respondents on August 26. The note advises the applicant was unfit for work for two weeks due to fibromyalgia. The only copy of the doctor’s note in evidence indicates it was received by mail on August 31. There is no record of it being faxed to the employer on August 26.

22August 20, 2005 was a Saturday. The respondents’ evidence is that no one worked that Saturday. I accept the respondents’ evidence on this point.

23The evidence suggests the applicant’s last day of work was August 22, 2005. Ms. Cashen, Human Resources Manager of Roxboro, testified that she received a phone call from the applicant on August 23 demanding to work day shifts as opposed to evening shifts. Told there were no day shifts available at the time, she demanded her record of employment. Ms. Cashen testified that she did not question the request and understood that she was required by law to issue the record of employment. On August 29, 2005, Ms. Cashen issued a record of employment indicating that the reason for termination was “shortage of work, day shift not available – cannot work afternoons”. Ms. Cashen testified she did this so as not to prejudice the applicant’s ability to obtain employment insurance benefits. I accept the respondents’ evidence that the only work available between August 22 and 29, 2005 was evening work and that the applicant was offered those shifts and chose not to work them.

24I reject the applicant’s assertion that her employment was terminated because she required a leave of absence due to disability and find that the evidence is more consistent with the conclusion that the applicant did not want to work the available evening shifts and quit.

25The Application is dismissed.