Dave Mani v. Mirolin Industries Corporation and Denise Ducey, 2009 HRTO 608

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dave Mani Applicant

-and-

Mirolin Industries Corporation and Denise Ducey Respondents

Case Resolution Conference Decision

Adjudicator: David Muir Date: May 11, 2009 Citation: 2009 HRTO 608 Indexed as: Mani v. Mirolin Industries

APPEARANCES BY

Dave Mani, Applicant ) Cecil Norman, Representative Mirolin Industries Corporation and Denise Ducey, Respondents ) Paula Rusak, Counsel

1This is an Application filed September 19, 2008 under section 53(3) of the Part IV of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code").

Background

2A Case Resolution Conference (CRC) was held in Toronto on April 30, 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 personal respondent and Ms. West, a former employee of the corporate respondent.

3In the complaint filed with the Ontario Human Rights Commission (the complaint), the applicant who self identifies as a South East Indian man from Figi alleges that he was terminated on February 3, 2006 due to subtle discrimination based on race and ethnic origin on the part of the corporate respondent and the personal respondent who was his direct supervisor at the time. The applicant believes that an incident involving a lost packing slip was relied upon by the respondents to justify the termination of his employment the following day.

4The applicant alleges that he was overworked but always got his work done in a timely manner. He states he passed his three month probation and that his employer never raised any performance issues with him. Despite his overall good work performance he did not receive a promised salary review. The applicant alleges that these situations are evidence of discrimination on the basis of race.

5At the outset the corporate respondent requested that the Application be dismissed on the basis it was brought in bad faith, or was frivolous, vexatious and an abuse of process. Alternatively, the respondents sought dismissal on the basis that the alleged facts disclosed no prima facie case

6The Requests to dismiss were rejected at the CRC hearing with brief oral reasons. I agreed with the respondents that the issues before me were those set out in the original Commission complaint and new allegations raised during the Tribunal proceeding were not properly part of this Application. However, I allowed the applicant to lead evidence with respect to some of those issues to the extent it was relevant to the subject matter of the Commission complaint.

Evidence and Analysis

7The applicant was employed by the corporate respondent as an inventory clerk from May 5, 2005 to February 3, 2006 when his employment was terminated. The personal respondent is the corporate respondent's controller. She interviewed and hired the applicant and he reported directly to her. It is not disputed the applicant was the only South East Indian male employed in his department.

8At my suggestion the respondents proceeded first. Briefly put, the respondents state that, despite extensive training in what is essentially a data entry job, the applicant was never able to perform to expectations.

9In late August 2005, the applicant was given a letter, dated August 11, 2005, advising that, if he failed to improve his performance, he could be subject to discipline up to termination. In that letter the applicant was asked to identify anything the employer could do to assist him in meeting his performance goals. In response, the applicant allegedly asked to have the inputting of packing slips removed from his job. The respondents considered this a core element of the job. So, although they agreed to do this proposal for a period of time it was always intended as a temporary solution. Accordingly, responsibility for the packing slips was returned to the applicant a few weeks later. His performance did not improve.

10The personal respondent testified that in late November or early December 2005 she decided, together with the Vice-President Finance, to terminate the applicant's employment after the holiday season. Implementing the decision was further delayed by vacations. The personal respondent stated the decision had nothing to do with the loss of a packing slip on February 2, 2006. Rather, the employer concluded the applicant was incapable of performing the job. This conclusion was influenced to a significant degree by information from Ms. West that the applicant was still seeking her assistance on a daily basis, seemed unable to master the entire job and other employees had concerns the applicant seemed unable to respond to routine requests for information related to his job functions.

11The applicant's testimony presented a number of credibility issues set out below:

• the applicant's testimony was riddled with inconsistencies. In his "will say" filed just prior to the CRC hearing he appears to resile from the position taken in his reply to the employer's response filed at the Human Rights Commission where he adamantly denied he had been advised of concerns about his performance and claimed the August 11, 2005 letter was a fabrication and agreeing he was advised of the performance concerns and provided with the August letter. However, at the CRC hearing the applicant reverted to his original position that he did not see the letter until after he filed his complaint. When his representative asked him to explain these contradictions, he suggested his will say only acknowledges that the employer created the letter at some point in time. I do not find this explanation reasonable or rational. I find the applicant's performance was an issue and that the applicant knew this because it was raised it with him in August 2005.
• The applicant alleged he was told his position was a high turnover position, the implication being that it was a tough job. The respondents' evidence is that Ms. West, the prior incumbent, had been in the job for five months until promoted. Her predecessor had held the position for 20 years. On these facts I am satisfied this characterisation of the position was never made.
• In his Application the applicant alleges the personal respondent over-supervised him and on occasion screamed at him and belittled him in the presence of co-workers. There were no particulars provided. At the CRC the applicant testified he had very limited contact with the personal respondent and provided no support for his allegations. I am not satisfied there is any factual support for these allegations.

12Compounding the confusion and the contradictory nature of the applicant's allegations is the fact that, despite the claim his performance was exemplary and denying any performance issues, the applicant and his representatives asserted the respondents failed to provide adequate training to the applicant and his performance issues were caused by that failure rather than any inherent inability to perform. This submission is inherently contradictory. Moreover, on the facts before me, the applicant has failed to show a connection between a failure to provide adequate training constituted differential treatment and the alleged grounds of discrimination.

13In submissions the applicant relied upon the respondents' evidence, in particular the evidence of Ms. West, that the applicant was unapproachable and "difficult". He notes such characterisations are often indicators of subtle racial biases arising out of language difficulties or cultural differences and, when considered together with the evidence of differential treatment, are sufficient to support a conclusion that race was a factor in the decision to terminate his employment.

14There are two problems with this submission. First, I do not agree that Ms. West's testimony was vague and therefore suspect. Her complaints and the concerns of other staff members were quite specific. The applicant was considered unapproachable and difficult because when approached with questions related to his job responsibilities the applicant would tell them that he was too busy to deal with their requests and they should go elsewhere for what they needed. The applicant did not deny this and, and given his view that he was overworked, it is reasonable to conclude this was how he responded to workplace queries.

15The second problem with this submission is that there is no evidence whatsoever of any differential treatment toward the applicant. Other than receiving a great deal more training than previous incumbents in the position and the temporary removal of a key job function, which in my view was intended to assist him to achieve adequate performance, I am not satisfied the applicant has shown he was subjected to differential treatment by the respondents.

16In submissions the applicant stated repeatedly his belief that he had been subject to subtle racial discrimination. Sincere belief is not sufficient; there must be some credible evidence, be it circumstantial or direct. Here there was no evidence of differential treatment offered by the applicant or any other credible evidence that would support a finding of racial discrimination. On the other hand, the decisions of the respondents appear to have been rational, based on appropriate factors and untainted by discrimination.

17For all of these reasons, the Application is dismissed.