Tulloch v. Cara Operations, 2009 HRTO 464

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl Tulloch

Applicant

-and-

Cara Operations Limited, Ed Jamieson, Martin LeBlanc, Ronald Jagroop,

Lisa Bruce, Joe Almeida and Roy Murray

Respondents

AND BETWEEN:

Cheryl Tulloch

Applicant

-and-

Cara Operations Limited and Lisa Bruce

Respondents

case resolution conference DECISION

Adjudicator: Keith Brennenstuhl

Date: April 20, 2009

Citation: 2009 HRTO 464

Indexed as: Tulloch v. Cara Operations

APPEARANCES BY

Cheryl Tulloch, Applicant ) U-Sheak Koroma, Counsel

Cara Operations Limited, Ed Jamieson, ) Brian O’Byrne, Counsel

Martin LeBlanc, Ronald Jagroop, )

Lisa Bruce, Joe Almeida )

and Roy Murray, Respondents )

1This Case Resolution Conference Decision is with respect to two Applications filed September 8, 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 complaints were filed with the Ontario Human Rights Commission on November 22, 2006 and April 26, 2007 and were abandoned upon the filing of these Applications with the Tribunal.

PROCEDURE

2This hearing was conducted 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 given they are often based on complaints, like these, which are more than a year old by the time they reach the Tribunal. To that end witnesses filed written statements and the hearing proceeded with minimal examination and cross-examination. Evidence and submissions on remedy were reserved until my decision on the merits was issued.

NATURE OF THE DISPUTE

3The applicant, who self-identifies as a Black woman from Jamaica with severe asthma, believes that her right to equal treatment and freedom from harassment in employment without discrimination has been infringed by the respondents on the basis of disability, race, colour, place of origin, ethnic origin and ancestry. She also believes that her termination from employment, following the filing of her human rights complaint with the Commission, was an act of reprisal.

4The respondents deny that they acted in any way contrary to the Code. They indicate that the applicant was terminated from her employment because of her misconduct in the workplace. They maintain that at the time the applicant was terminated they were not aware of the human rights complaint made against them by the applicant.

DETERMINATION

5The Applications are dismissed. In my view there is insufficient credible or trustworthy evidence to support the applicant’s allegations of discrimination or reprisal.

BACKGROUND

6The corporate respondent, Cara Operations Limited (“Cara”), owns and operates and also franchises various restaurant operations across Canada. It also operates an airline catering business. Prepared meals and beverages intended for passengers and crew are stored in carts designed to fit the aisle of an airplane and the carts, on a just in time basis, are delivered to the aircraft for use by the flight attendants.

7In 2001 the applicant began working in the airline catering business at Cara’s flight kitchen facility located on the grounds of Pearson International Airport. The workforce at the flight kitchen facility consisted of 1300 employees. Throughout her employment with Cara, the applicant was a member of a bargaining unit represented by Teamsters Local 647.

8The personal respondents worked in the airline catering business as well and held various management positions.

ANALYSIS

Harassment in the workplace

9The applicant alleges that in February 2006 she had a severe asthma attack at work and a co-worker, Donald Dallas, rushed her to the hospital. She claims that a few days later and in order to discredit her, management spread a rumour to the effect that her asthma attack was due to excessive drinking and the use of drugs. According to the applicant there was a “groupthink” amongst management that everybody from Jamaica was on drugs.

10In my view, the evidence does not entirely support this version of events. I am satisfied that the applicant suffered an asthma attack as alleged and was rushed to hospital by a co-worker; however, the alleged rumour by management and the “groupthink” amongst management are not supported by the evidence.

11No reliable evidence was elicited confirming the existence of a rumour or a so-called “groupthink”. Mr. Dallas, a co-worker and the applicant’s sole witness, was unable to provide any independent evidence of a rumour or a “groupthink”. He testified that he was told by the applicant that a rumour had been started by management and that there was a “groupthink” amongst management but he was confused as to when he held this conversation with the applicant and uncertain as to the nature of the rumour.

12The evidence as to who started the rumour was inconsistent. Mr. Dallas testified that the applicant identified the personal respondent, Joe Almeida, who was a member of management as the person who started the rumour. The applicant testified that the rumour was initiated by Terrence Jagroop (not to be confused with the personal respondent Ronald Jagroop). She conceded, however, that Terrence Jagroop was a union employee and not a manager.

13In my view, the applicant has failed to establish the existence of a management initiated rumour or a management “groupthink”.

14Following a workplace accident in July 2006, the applicant claims that management subjected her to “inordinate discrimination and harassment”. As evidence she alleges the respondents suspended her from work for no reason. The respondents explained the applicant was suspended because she had failed to ensure that crew meals and ice were delivered on time and this caused a flight delay. The letter of suspension indicates this incident occurred July 16, 2006. The applicant testified she was not at work on July 16 but on the 15th.

15The personal respondent Roy Murray was the author of the suspension letter. He testified the incident occurred on July 15 and the reference to July 16 was a typographical error. The letter should have read “On Saturday July 15, 2006” rather than “On Saturday July 16, 2006”. I note July 15, 2006 was a Saturday. In my view, this is a plausible explanation. I find that the applicant was suspended for her failure to perform her job duties on July 15 and that this is not evidence of discrimination or harassment contrary to the Code.

16The applicant also alleges the personal respondent Joe Almeida bragged in a meeting concerning the applicant’s work performance that he knew what broke the applicant’s concentration. The applicant took this statement as a reference to use of drugs and alcohol. Mr. Almeida explained that, in his view, the applicant’s performance issues were caused by lapses in concentration and that he intended no reference to drugs and alcohol.

17Two representatives of the applicant’s union, the Business Agent and Chief Steward, were present at the meeting. They were not called to support the applicant’s interpretation of the statement.

18In my view Mr. Almeida’s explanation of what he meant by this statement is reasonable. To interpret it as the applicant suggests would require more context and comment than the applicant was able to provide.

19The applicant complained that management released her phone number to an employee and that this is further proof of harassment. I disagree. The evidence is clear. A seniority list was posted in the workplace in accordance with the requirements of the collective agreement. It indicates the phone number of each employee. All unionised employees are on the list and the information on the list is available to all employees in the workplace. The applicant was not singled out or treated differently than her fellow workers.

20The applicant also alleged the corporate respondent’s refusal to accept her medical note amounted to discrimination, harassment and singled her out for differential treatment. The note, dated August 1, 2006, indicates the applicant “was unable to work due to illness/injury” from August 1, 2006 to August 21, 2006. The applicant states the note was rejected as “not objective” and she contends no other employee had a medical note rejected for this reason.

21There is no evidence to support this contention. On the contrary, Cara’s policy for absences of greater than four consecutive days is that a specified medical absence form must be completed by the employee’s physician and sent to Cara’s independent disability management provider which reviews and adjudicates all disability claims. In my view, the note was properly rejected because it was not in compliance with corporate policy.

22On October 20, 2006 the applicant met with her manager and her Shop Steward to discuss her work performance during the preceding month. They discussed five service failures by the applicant, one of which caused a flight delay. There is no indication that the applicant disputed the service failures. The letter of October 20, 2006 is a summary of that meeting and it confirms a one day suspension without pay. The suspension was not grieved. The applicant now claims the suspension was based on unsubstantiated allegations and, in part, on fabricated documentation. I am of the view the service failures were not mere allegations but were factual incidents for which the applicant was suspended. The applicant’s claim that Cara fabricated documents in this regard is not supported by the evidence.

REPRISAL

23During the course of her employment with Cara the applicant served a number of suspensions due to improper conduct in the workplace and service failures. On September 5, 2006 she entered into a written settlement of a grievance over an earlier suspension on the following terms:

Cheryl will provide a written apology to Mr. Nava. A suspension will remain on record for insubordination and misconduct. A recurring incident of misconduct will result in termination of employment.

24The applicant’s employment was terminated on December 1, 2006 and the termination was confirmed in a letter to the applicant dated December 4, 2006. The reasons for termination were set out in that letter, namely that on November 24, 2006 the applicant’s behaviour was inappropriate and she was ordered from the workplace.

25The applicant contends that the termination was a reprisal for making a human rights complaint. I do not agree. In my view, the termination was directly related to the applicant’s conduct on November 24, 2006.

26According to the Occurrence Report completed by the applicant’s manager, the applicant arrived at work late on November 24. This put her behind in her work assignment which had the potential of leading to the delay of a scheduled flight. When her manger attempted to speak to her, the applicant became abusive and loud, threw items on the floor, used foul language and made inappropriate comments about her managers. This behaviour continued in the presence of the Shop Steward and persisted after she was told to leave the facility. In my view, the decision to terminate the applicant’s employment was prompted by this misconduct.

27The applicant disagreed with the Occurrence Report. She took exception to a number of items in the report. She did not, however, disagree with the notation that she was told to leave the facility, failing which the police would be called.

28I give a great deal of weight to the report. It was written on November 24, 2006 shortly after the applicant left the premises and, therefore was contemporaneous in nature. The applicant had a troubled work history. She testified that she “was issued with so many suspensions”. She agreed that none of the suspensions was overturned in the grievance process. The report, in my view, is consistent with the applicant’s work history and I accept its veracity.

29The applicant maintains that the respondents knew of her human rights complaint when she was terminated and that the decision to terminate her employment was informed by that knowledge. I do not agree. The evidence does not support the applicant’s assertion that the respondents knew of her complaint.

30The initial complaint is dated November 22, 2006 and not November 6, 2006 as alleged by the applicant. Each of the personal respondents testified that they first learned of the complaint at the end of February 2007. The evidence reveals that the complaint was not sent out by the Commission to any of the respondents until February 20, 2007. Given this time-line it is not unreasonable to conclude that the respondents were not aware of the applicant’s complaint at the time of her termination.

31The applicant states that the respondents must have known of her complaint or that she was going to make a complaint since she told her co-workers and several of the personal respondents that she was in the process of making a complaint. She claims that in fact she told the personal respondent, Roy Murray, every day from September 15, 2006 to November 22, 2006 that she was making a human rights complaint. I do not accept this.

32Each of the personal respondents testified that they were never told by the applicant or any of her co-workers that the applicant was making a human rights complaint. I accept that. The assertion that the applicant told Mr. Murray every day over a period of two months that she was making a human rights complaint is implausible. Co-workers were not called on by the applicant to testify that they had been told by the applicant that she was making a human rights claim. Mr. Dallas, a co-worker who was called by the applicant, had the opportunity, but failed, to testify that the applicant had told him that she was making a human rights complaint. In my view, the evidence fails to establish that anyone at the workplace had been told by the applicant prior to her termination that she was making a human rights claim.

33I find that there is no credible evidence of reprisal.

ORDER

34In light of my conclusions above, there is no need to hear from the parties on remedy. The Application is dismissed.