Sharma v. Parmalat Canada, 2009 HRTO 897

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dhirendra Sharma Applicant

-and-

Parmalat Canada Inc., Stephen Wilson and Dean Hollinger Respondents

Case Resolution Conference DECISION

Adjudicator: David Muir Date: June 22, 2009 Citation: 2009 HRTO 897 Indexed as: Sharma v. Parmalat Canada

Appearances By

Dhirendra Sharma, Applicant ) On his own behalf Parmalat Canada Inc., Stephen Wilson ) Paul Young, Counsel and Dean Hollinger, Respondents ) )

1This is an Application filed on November 5, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges he experienced discrimination in employment on the basis of his ethnic origin and/or colour.

2This Case Resolution Conference (“CRC” or “hearing”) was held in Ottawa on June 10, 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, Dean Hollinger, as well Mr. Reimann and Mr. Gibson both employees of the respondent corporation, Parmalat Canada Inc. (“Parmalat” or the “employer”), holding the same supervisory position as the applicant. The personal respondent, Stephen Wilson was in attendance but his evidence was not considered necessary by any party.

Evidence

3The applicant was employed by Parmalat as a shift supervisor. Because Parmalat operates 24 hours a day, seven days a week, the five shift supervisors worked 12 hour shifts.

4The factual underpinnings of this case flow from a dispute about how Parmalat compensated employees for public holidays. The issue arose when the applicant resigned his employment to take a job in the United States. In the settling up of accounts prior to his leaving, he submitted an accounting of what he believed was owing to him as a payout of his bank of vacation, public holidays and floater days.

5The applicant alleges Parmalat discriminated against him when it refused to pay out holiday pay in accordance with what he understood to be Parmalat’s practice, or, alternatively, imposed a new rule which resulted in a reduced payment. The respondents state that there was no differential treatment of the applicant and state that the reduction in the applicant’s payout was because of its discovery of an error in which the compensation for public holidays had been administered for a number of years.

6The parties agreed that time for public holidays is “paid’ into an employee’s bank of vacation days, public holidays and floater days (“bank”) at the beginning of the calendar year. In addition to the other entitlements to paid time off work, each shift supervisor is credited with 72 hours representing eight hours per day for the nine public holidays in Ontario. This is where the agreement ends.

7Without going into the details of how the compensation was calculated, the applicant states he believed he was entitled to 1.5 premium pay for the day and a banked day, plus his regular salary – in effect triple time and a half for every public holiday. The respondents say the employer pays double time and a half when a supervisor works the public holiday but admit the applicant’s bank was not reduced for the public holidays that he worked and claimed premium pay. This was because there was no administrative system in place to track premium pay slips and make the appropriate deductions from the employees’ bank.

8When Mr. Hollinger received the applicant’s request, he thought the overall number of hours claimed was quite high. He enquired further and in particular reviewed the premium pay records for public holidays in 2006. The calculation error was discovered and the applicant’s claim was reduced significantly. When the error was discovered, the banks of the other shift supervisors were also reviewed. Two other supervisors were in a similar situation as the applicant and steps were taken to reduce their banks accordingly.

9The applicant did not self identify but is clearly an individual of colour and of South Asian origin. He believes that the manner in which his employer dealt with the final payout from his bank was discriminatory for a number of reasons:

a. He questions the existence of the policy. He stated and this is not disputed, that he had no reason to be aware of it.

b. He was told about the reduction in the payout from his bank on his last day of work. If acting in good faith the employer would have informed him earlier. As a result of this late notice, his options for questioning the employer’s position or, alternatively remedying it were limited.

c. When he was advised by the employer, he was also told that he should not discuss the issue with the other supervisors who might be affected. He did agree that he was told by respondent Wilson that this was because, as it might affect these other individuals, management wanted to speak to them privately.

d. The applicant also relied upon the fact that at mediation he pointed out what he thought was a further miscalculation of the deduction from his banked hours. In particular, he stated at the time that the deduction for 2006 had been based on 12 hour per public holiday when it should have been based on eight hours. When investigated by the employer, his position was vindicated and the employer offered to pay him the amount that he was claiming as a result.

The applicant states that these factors, whether errors or not, are inexplicable and form the substance of his belief that he was subject to differential treatment.

Decision

10The Application is dismissed. There is no evidence the applicant was subject to differential treatment in any way related to his ethnic origin or colour. What happened here is the result of a series of administrative and clerical errors on the part of management.

11The applicant was not in any way at fault and his reasonable expectations of the payout which he was counting on to cover his expenses between jobs were dashed by the employer’s errors. However, there is simply no reason to question the respondents’ evidence that these reasonable expectations were based on a mistake.

12I have carefully considered whether there is any indication that the applicant’s request for his final payout was more carefully scrutinized in whole or in part because of his colour or ethnic origin and I find that it was not. There is no basis for questioning Mr. Hollinger’s evidence that he looked into the claim in more detail because it struck him that the number of banked hours was higher than it ought to have been.

13The applicant questioned the timing of the employer giving him the bad news - his last day of work. The timing was unfortunate but I accept the evidence of Mr. Hollinger that it took him a couple of days to investigate the request. There is no evidence that the timing of his being told was in any way calculated to impose a disadvantage on him or in some way part of a pattern of discrimination.

14As regards the applicant’s submission that it was suspicious that he was asked not to speak about the issue with his fellow shift supervisors, I find that it was entirely reasonable in the circumstances. The applicant acknowledges that he was told that as it might affect others of his colleagues, management would rather they hear it from them, and as it turns out the discovery of management’s error did affect two of his colleagues in varying degrees.

15For all of these reasons the Application is dismissed.