Gary Rockley v. Bill Cradock, 2009 HRTO 874

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Rockley Applicant

-and-

Bill Cradock Respondent

DECISION

Adjudicator: Mary Truemner Date: June 17, 2009 Citation: 2009 HRTO 874 Indexed as: Rockley v. Cradock

APPEARANCES:

Gary Rockley, Applicant ) self-represented Bill Cradock, Respondent ) S. Philip Viater, Student-at-law

1This is an Application filed on October 16, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The applicant alleges that he was discriminated against in employment by the respondent on the basis of a knee condition. In an earlier Interim Decision, 2009 HRTO 143, the Tribunal confirmed the Application raised disability as the ground of alleged discrimination.

AGREED FACTS

2A hearing was held on June 11, 2009. I heard testimony from both the applicant and the respondent. In many respects their evidence was consistent. The applicant worked for the respondent’s outdoor lighting company, Starlite Lighting Concepts, for several years. He was the only employee, but the hours were sporadic and irregular for most months given weather, customers and seasons. He was laid off each winter when the company had little or no demand from customers. The busy period for the business was in the late Fall when lighting would be installed for Christmas.

3On the morning of Saturday, May 10, 2008, the applicant awoke with knee pain that he believed was related to work the previous day, kneeling on concrete to install lighting. In the two-week period prior to May 10, 2008, the applicant had worked a total of five days, but two of them were May 8 and May 9. He told the respondent on the phone sometime that weekend that he would not be available to work on a project in Kleinberg on May 12 – May 14, 2008.

4On Sunday, May 11, 2008, the respondent collected the company van that the applicant used to drive between his home and the office, and the respondent hired a contractor to replace the applicant in helping to complete the project over the next few days.

5On May 14, 2008, the applicant told the respondent that his knee was significantly better and that he could work again, but the respondent said that there was no work at the moment. The applicant testified that he never saw a doctor about his knee, and that it was completely better soon afterwards. He did not receive any calls from the respondent offering work.

6On May 29, 2008, the applicant wrote an e-mail to the respondent confirming his belief that the respondent had no work, and stating that he would “look for employment elsewhere.” The applicant’s e-mail, though, invited the respondent to contact him if work became available.

7The respondent did not answer, but, on May 30, 2008, he issued a Record of Employment which indicated that the applicant was no longer employed because of “shortage of work.” The applicant resumed working for the respondent on July 15, 2008. The period of time from May 9, 2008 until July 15, 2008 is the focus of the Application.

8From July 15, 2008 until September 19, 2008, the applicant worked irregular hours. On September 19, 2008, the applicant and the respondent had an argument over money that the applicant used to fill the company van with gas. The respondent did not offer the applicant any work afterwards, but the applicant stated that the sole reason for the end of his employment at this time was the argument over the gas. The applicant clarified at the hearing that he does not allege that the respondent discriminated against him after July 15, 2008 for a reason related to disability or any other Code-protected ground.

AREAS OF DISPUTE

9The parties did not agree on the reason for the respondent no longer offering work to the applicant between May 14, 2008 and July 15, 2008. There were several small jobs in that period for which the applicant could have been hired. He testified that the respondent had told him that a friend helped out with the jobs as a favour, and without pay, but took the position that the respondent should have called him instead. He offered no reason as to why the respondent should have used and paid him instead of the friend who worked for free, but he implied that a “real” employee is always preferable. The applicant alleges that if he had not hurt his knee, then he would have been employed by the respondent in that time period for those small projects or jobs. The applicant offered no evidence that the respondent had more work during the time in question.

10The respondent testified that when the applicant reported a sore knee the week-end following May 9, 2008, he understood and accepted that the applicant should not assist with the work on May 12 – May 14, 2008, and that he would need to get assistance elsewhere, which he did. He said that he was “fine with all that.” The respondent testified that the knee problem had nothing to do with not offering the applicant work after May 14, 2008.

11The respondent confirmed in his testimony that he had a shortage of work after May 14, 2008. He testified that he had virtually no work between May 15, 2008 and the time he laid the applicant off at the end of the month. He testified that he had a friend assist him with several short projects between May 14, 2008 and July 15, 2008; however, the respondent also testified that he was upset by the applicant’s allegedly ongoing, rude attitude. The respondent testified that the applicant was often rude, from dealing with small matters such as accepting a coffee, to larger matters such as questioning the respondent’s directions about jobs and procedures.

12The respondent testified that he visited the Kleinberg site on May 9, 2008 with the applicant, who used profanities and yelled at the respondent for wasting time looking for a buried conduit or pipe. The respondent was particularly upset that a resident heard the applicant’s language through a window. The respondent said that he really lost patience with the applicant in an exchange the week following May 9, 2008 when the applicant demanded to pick up his pay cheque despite the cheque having been previously mailed. The respondent resented having to arrange an emergency cutting of a new cheque. The respondent was visibly still upset by the applicant’s angry treatment of him. The respondent was reluctant to resume a working relationship with the applicant afterwards, but when the applicant telephoned on July 14, 2008 to say that he was still unemployed, and to inquire if there was any work, the respondent felt sorry for him given the applicant’s dire financial straits. The applicant resumed working irregular hours for the respondent on July 15, 2008.

13The applicant testified that he had lost his temper with respect to incidents like not getting his cheque on the day it should have arrived, but he felt that if his attitude had been a serious enough problem to justify a layoff, then the respondent should have documented the matter. The applicant’s position was that an employer cannot rely on an employee’s rudeness as a reason to lay him off unless a written warning had been given, and no written warning had been given by the respondent. When this was put to the respondent in cross-examination, the respondent testified that he had thought an oral warning was sufficient, and that he did not know of any requirement to provide an employee with a written warning of misconduct.

DECISION

14Section 5(1) of the Code provides that every person has a right to equal treatment with respect to employment without discrimination because of, among other things, disability. Now that the applicant no longer says that he was discriminated against after July 15, 2009, the only matter left for me to decide is whether the absence of offers by the respondent to work between May 14, 2009 and July 15, 2009 constitutes discrimination because of disability. Without deciding whether the nature of the applicant’s condition falls within the definition of disability, I have decided that the applicant’s knee problem was not a factor in the respondent deciding to offer no work to the applicant for the relevant two months.

15The applicant provided no evidence to dispute the evidence of the respondent that there was little work after May 14, 2008. I accept this was the case given that it is consistent with the applicant’s e-mail on May 29, 2009, and with the parties’ testimony about the nature of the business where hours are determined by weather, season and customers.

16I also find that the respondent genuinely believed the applicant to be inappropriately rude, particularly with respect to the May 9, 2008 incident in Kleinberg and with respect to the applicant’s demands for a replacement pay cheque afterward. The respondent’s choice to use a friend who worked on the small projects for free instead of the applicant is reasonable given the financial benefits for the respondent. I am therefore satisfied that the reasons the friend was used for the small projects instead of the applicant were solely related to the respondent’s genuinely held belief that the applicant was rude, and to the savings involved in having someone work for free. The reasons in whole or in part were not based on the applicant’s possible or perceived disability.

17While I sympathize with the applicant’s frustration that he might have altered his behaviour if he had received a written warning about his attitude, and that he cannot easily compete with the respondent’s friend who does his job without charge, I do not find that the respondent’s informal way of dealing with alleged misconduct or his preference to use a friend over the applicant is a form of discrimination prohibited by the Code.

18This Application is dismissed.