Cyril Byfield v. Fresh Start Foods Canada Inc. and Mitchell Brown, 2009 HRTO 817

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cyril Byfield

Applicant

-and-

Fresh Start Foods Canada Inc. and Mitchell Brown

Respondents

case Resolution Conference DECISION

Adjudicator: Jennifer Scott

Date: June 10, 2009

Citation: 2009 HRTO 817

Indexed As: Byfield v. Fresh Start Foods Canada

AppearanceS BY

Cyril Byfield, Applicant ) Cecil Norman, ) Representative

Fresh Start Foods Canada Inc. ) Paula Rusak, and Mitchell Brown, Respondents ) Counsel

Procedure

1This is an Application filed September 5, 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 May 6, 2008 and abandoned upon filing this Application with the Tribunal.

2The Case Resolution Conference (CRC) was conducted on May 11, 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 given they are often based on complaints, like this one, which are nearly a year old by the time they reach the Tribunal. The applicant and personal respondent both gave evidence.

Nature of the Dispute

3The applicant, Cyril Byfield, claims discrimination in employment on the basis of family status pursuant to sections 5 and 9 of the Code against Fresh Start Foods Canada Inc. (“Fresh Start”) and the personal respondent, Mitchell Brown. The applicant alleges that Fresh Start, through the actions of the personal respondent, refused to accommodate his childcare responsibilities and forced the applicant to resign his employment when he was required to choose between his childcare responsibilities and his job.

Decision

4The Application is dismissed. What follows are my reasons.

Background

5The applicant lives in Toronto with his spouse and their two children, and has an eight year old son living in Niagara Falls with a former spouse. By way of a written agreement between the applicant and his former spouse, the applicant has access to his son every other weekend. The applicant picks his son up every other Friday, takes him to Toronto to spend the weekend and returns him to Niagara Falls on Sunday.

6On June 4, 2007, the applicant applied to be driver for Fresh Start, a company that delivers produce to commercial enterprises in Ontario. In his application, he stated he was available to work any shift.

7The applicant was hired by Fresh Start on August 1, 2007. On that date, he completed a checklist for new employees where he answered “no” to the question: “Is there anytime of the day you cannot work”. The checklist advised the applicant that personal appointments had to be in writing to his supervisor at least 72 hours in advance and that all requests would be accommodated based on customer needs.

8From August to December 2007, the applicant worked Monday to Saturday from 6:00 a.m. to approximately 2:00 p.m. or later depending on the time his delivery finished. He had every Wednesday off. The applicant had no difficulty meeting his childcare responsibilities in Niagara Falls with this schedule.

9In early January 2008, the applicant was given the opportunity to work extra hours. He agreed to work the “market run” which involved going to the Food Terminal in Toronto at 3:00 a.m. The “market run” was an additional shift from 3:00 a.m. to 6:00 a.m. on top of his regular shift from 6:00 a.m. to 2:00 p.m. The applicant did the “market run” two or three times during the week. The “market run” did not take place on Saturday mornings because the Food Terminal was closed during the weekend.

10Later on in January 2008, the applicant was asked if he wanted to take on another shift called the “key drop run”. This shift started at 1:00 a.m. Saturday mornings and required the driver to make deliveries to downtown Toronto in the middle of the night which allowed customers to have fresh product early in the morning. The applicant agreed to take on this extra shift.

11The applicant was trained on the key drop run by another driver on the following Saturdays: January 26, February 2 and February 9, 2008. He requested an additional training session on February 16, 2008.

12The applicant had difficulty meeting his childcare responsibilities in Niagara Falls with the key drop run. For example, if his regular Friday run went late, it was difficult for him to get to Niagara Falls and back in time for the 1:00 a.m. shift on Saturday mornings.

13The applicant testified that he asked his supervisor, the personal respondent, if he could have Fridays off so he could pick up his son and be fresh for work on Saturday mornings. The personal respondent denies that this conversation occurred.

14On Friday, March 7, 2008, the applicant’s spouse called the personal respondent. The parties disagree about what was said. The personal respondent testified the applicant’s spouse told him she did not want the applicant to do the downtown run (key drop run) any longer because it was too dangerous. The applicant testified that his spouse called to ask the personal respondent to remind the applicant that he had to pick up his son in Niagara Falls. Although present during the hearing, the applicant did not call his spouse to testify.

15After completing his shift at around 3:00 p.m. on March 7, 2008, the applicant returned to the work site and spoke to the personal respondent. The parties disagree about much of what was said during this conversation.

16The applicant testified the personal respondent asked if he was coming back to work at 1:00 a.m. the next morning. The applicant explained he was not sure because of the weather and needing to get his son. He also said that if his spouse did not want him to come back this late, he was not going to fight with her. The personal respondent told him the 1:00 a.m. shift was an important shift, with an important client and that if the applicant was not going to show up, he wanted to know. The applicant felt he was being given an ultimatum: either go and pick up his son or leave the job. He was asked for the truck keys, the building key and his fuel card which he interpreted as a termination.

17The personal respondent testified he told the applicant about the call from his wife. The applicant replied that if his wife did not want him to work downtown, he was not going to argue with her. The personal respondent asked whether this meant he was not going to work the downtown shift (key drop run) or whether he was not going to work at all. The applicant simply replied that he was not going to argue with his wife. When the personal respondent tried again to clarify the applicant’s position, the applicant then stated he was resigning his position and that he had to go pick up his son. The personal respondent did not ask any questions about the applicant’s statement regarding his son and asked for the applicant’s fuel card and key.

Alleged Discrimination

18The applicant alleges that Fresh Start discriminated against him by (a) failing to accommodate his request for Fridays off; and (b) requiring him to choose between his responsibilities to his son and his job which resulted in his forced resignation.

Failure to Accommodate

19The applicant asserts that at some point between January and March 2008, he asked the personal respondent if he could have Fridays off so he could pick up his son and be fresh for Saturday. The applicant alleges he was told to put his request in writing. The evidence is unclear as to whether the applicant ever put his request in writing.

20The personal respondent denies receiving a request from the applicant, in writing or otherwise, to have Fridays off. He states the first time he heard about the applicant’s son was on March 7, 2008.

21An employee is obligated to state clearly his/her need for Code-related accommodation. A clear request for accommodation initiates a dialogue between an employer and an employee about the accommodation that is required and how it can be provided by an employer. In this case, the applicant’s testimony was vague and confusing about the detail regarding his request for accommodation, including when he asked for Fridays off and what exactly he said. There was no indication from the applicant that he clearly told the personal respondent that he had childcare obligations to his son in Niagara Falls every other weekend.

22I find that the applicant failed to state clearly his request for accommodation. Asking for “Fridays off to pick up his son and be fresh for Saturday” does not communicate the childcare responsibilities the applicant had under the access agreement. While it was not necessary for the applicant to provide a copy of this agreement, it was necessary to communicate the extent of his childcare responsibilities to his son in Niagara Falls. In the absence of a clear request for accommodation, there was no duty on the part of Fresh Start to accommodate the applicant.

23Even if a clear request had been made, it would not have created a duty to accommodate on the part of Fresh Start. The duty to accommodate does not require an employer to meet all scheduling requests by an employee: it requires an employer to meet Code-related requests that are related to the performance of the employee’s job.

24The applicant did not require accommodation from Fresh Start to meet his childcare responsibilities. The applicant was able to get to Niagara Falls to pick up his son every other weekend when he worked his regular shift on Fridays and Saturdays from 6:00 a.m. to approximately 2:00 p.m. The applicant conceded that he had no difficulties picking up his son with this schedule. The difficulties began in January 2008 when the applicant took on the key drop run that started at 1:00 a.m. on Saturdays. The simple solution to the problem the applicant faced was to decline this extra shift.

25I find that the applicant did not require accommodation in order to meet his childcare responsibilities. His job did not interfere with these responsibilities. The extra key run shift made it difficult for the applicant to pick up his son his Niagara Falls. However, there was no requirement that the applicant do this shift. There was also no requirement that Fresh Start accommodate his regular shift to enable the applicant to take on additional work. Accordingly, the complaint that Fresh Start refused to accommodate the applicant’s childcare responsibilities is dismissed.

Forced Resignation

26The applicant alleges that he was forced to resign on March 7, 2008 because the personal respondent required him to choose between the key drop run and picking up his child in Niagara Falls. The evidence does not support the applicant’s assertion that such an ultimatum was made.

27Although the parties disagree about the contents of the applicant’s spouse’s call, whether it was to remind the applicant to go to Niagara Falls or whether it was to tell the personal respondent that the applicant could no longer do the key drop run, the call raised the issue as to whether the applicant would be coming to work at 1:00 a.m. the next morning to do the key drop run.

28The personal respondent needed to know whether the applicant was going to work the key drop run. When asked, the applicant said he was not going to argue with his wife and that he was going to pick up his son in Niagara Falls. Although the parties disagree about when in the conversation the applicant said he had to pick up his son, the evidence is clear that the applicant disclosed this information at some point in the conversation.

29There is no question that the applicant was feeling a great deal of pressure from his spouse, from the personal respondent and from his childcare responsibilities in Niagara Falls. This pressure did not relieve the applicant of his obligation to be clear about his childcare responsibilities. Again, stating that he had to pick up his son does not clearly communicate the extent of these obligations. I find that the applicant resigned his job because of the pressure he was under and not because of an ultimatum given by the personal respondent. Accordingly, the applicant’s complaint that he was forced to quit because the personal respondent forced him to choose between his child and his job is dismissed.

Order

30In light of the above conclusions, I do not find a violation of sections 5 and 9 and of the Code by the respondents. This Application is dismissed.