HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Garett Bridgman
Applicant
-and-
2035534 Ontario Ltd o/a Rivard Cleaners and Woo Seok Seo
Respondents
DECISION
Adjudicator: Andrew M. Diamond
Indexed as: Bridgman v. 2035534 Ontario
APPEARANCES BY
Garett Bridgman, Applicant ) On his own behalf
2035534 Ontario Ltd. o/a Rivard Cleaners ) R. Potomski, and Woo Seok Seo, Respondents ) Representative
Introduction
1This is an Application filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”) alleging discrimination in the provision of employment by the respondents based on a disability. The original complaint was made to the Ontario Human Rights Commission (the “Commission”) on January, 23 2006. That complaint was abandoned and this Application was brought to the Human Rights Tribunal of Ontario (the “Tribunal”) on October 22, 2009.
Background
2The personal respondent, Woo Seok Seo’s tale is a classic Canadian immigrant’s story. He arrived in Canada from Korea with a Ph.D. in urban planning and proceeded to search for a business to purchase. On February 8, 2004, he purchased Rivard Cleaners from a Mr. and Mrs. Vidamore. It is unclear from the evidence whether he purchased the shares of the numbered company or whether his numbered company purchased the assets of Rivard Cleaners. The personal respondent is the sole officer and director of the respondent numbered company.
3The hearing was conducted with the benefit of a Korean English interpreter. The applicant testified that while the personal respondent’s English is not perfect, he was able to operate his business with the assistance of his veteran employees.
4The applicant, Garett Bridgman, was employed by Rivard Cleaners from April 1, 2002 until November 7, 2005. The applicant was an employee of the business before the personal respondent took over control and continued to be an employee until his employment was terminated by the corporate respondent.
5Under the previous ownership, the applicant was employed as a dry cleaner on an hourly basis. He shared these duties with the Vidamores whom, he admits, were able to perform his job functions. When the business was sold, the applicant was the head dry cleaner and the only one remaining at the business who really understood all of the processes. Because of this, the applicant believed he was in a position of strength with respect to his new boss and was able, over a period of a few months, to first negotiate a raise, and then convince the respondents to move him from an hourly rate, with no guarantee of the number of hours to be worked, to a flat salary of $640 per week. This was his salary at the date of the termination of his employment.
6It was the personal respondent’s evidence that the Vidamores had told him that he should learn how to do the applicant’s job and he testified that it had always been part of his business plan to do so, in order to terminate the applicant’s employment and thereby eliminate the highest salary in the business. The personal respondent testified that, leading up to October of 2005, he had been shadowing the applicant to learn as much as he could, but admitted that he could not, as of that point in time, perform the more complicated aspects of the job.
Facts
7The evidence of the applicant and the personal respondent does not vary significantly. However, the personal respondent’s memory was, on occasion, weaker than that of the applicant, including his recall of certain evidence on the first day of the hearing and his inability to remember the same detail on the second.
8By all accounts, the week of October 3, 2005 was a difficult one for both the applicant and the personal respondent. On October 3, 2005, the applicant awoke and was too ill to go to work. On the afternoon of October 4, his wife called an ambulance because the applicant had passed out. At the hospital, the applicant was diagnosed with diabetic ketoacidosis. He then spent the following five days in hospital while his blood sugar was brought under control and he learned the basics of living with his diabetes (a previously undiagnosed condition for him).
9Some time that same week, the personal respondent received the tragic news that his mother-in-law, visiting Canada from Korea, had died while on a tour of the Rocky Mountains. The personal respondent and his family travelled on an emergency basis to Alberta to deal with the family loss, leaving the temporary management of the business in the hands of a relative.
10The applicant testified, and I believe him, despite an unclear recollection of the events on the part of the personal respondent, that the applicant contacted the business in order to have a Record of Employment prepared so that the applicant could receive sick benefits from the Employment Insurance system while he was recovering. Between October 5 and November 4, the applicant was in regular contact with the corporate respondent.
11On Thursday, November 3, 2005, the applicant attended at the corporate respondent and advised the personal respondent that he was going to his doctor the following day and, assuming that he received clearance, planned to return to work on the following Monday. Both parties agree that at no time was the applicant asked to provide medical documents, nor did he supply them. However, medical reports for the applicant were produced at the hearing and there is no reason to dispute their legitimacy.
12On Friday, November 4, 2005, the personal respondent telephoned the applicant and asked to meet with him that afternoon at a Tim Horton’s restaurant near his residence. At that meeting, the personal respondent advised the applicant that his employment was being terminated for lack of work. A Record of Employment with that as the reason for termination was subsequently issued.
13However, the applicant submitted that there was no lack of work as Mrs. Vidamore was employed both during his absence and after his employment termination to do the applicant’s work as the personal respondent was incapable of doing it.
14The personal respondent’s evidence on this point was that, while Mrs. Vidamore did come in immediately to replace the applicant when he went off sick, upon his return to Windsor, he began to handle the bulk of the work. He testified that he was able to do the majority of the functions immediately, but that he needed Mrs. Vidamore to undertake the more complex processes, such as dealing with beaded and silk items until he learned how. The personal respondent testified that he would keep the more difficult jobs aside and that Mrs. Vidamore would come in one or two days a week for two to three hours and do these jobs and teach him how to do them. On the first day of the hearing, the personal respondent testified that this continued for “two to three months.” On the second day of the hearing, however, he said he could not remember how long the arrangement with Mrs. Vidamore lasted. The personal respondent also testified that he attempted to pay Mrs. Vidamore but she refused to take anything more than minimum wage for the hours worked.
15The foundation of the respondents’ defence is that it was always the intention to terminate the applicant’s employment. The personal respondent testified that when he purchased the business, it employed 12 people, and that he has now reduced his staff to four part-time employees. This, he says, is in large measure due to the decline in the economic fortunes of Windsor.
16Specifically, the personal respondent testified that it was his intention to terminate the applicant’s employment in the summer of 2005, the summer being, by admission of both parties, the slowest time of year in the dry cleaning business. The personal respondent testified that his plans were thwarted because a number of his other employees had health or family issues that required them to be absent from work. As a result, he did not have the human resources to terminate the applicant’s employment. However, by September 2005 everyone was back to work and he was planning to terminate the applicant when the applicant became ill.
17While I have no doubt that terminating the applicant’s employment was part of the long-term business plan, I am not satisfied that it was imminent in the fall of 2005. There are three reasons for this: the first is that the personal respondent had owned the business for some 19 months and had taken no pro-active steps to learn all of the procedures necessary to run the business; second, the business did not seem prepared for the applicant’s sudden absence and required the services of Mrs. Vidamore for two to three months; and third, the seasonal period of autumn to December would be the busiest time of year for the business.
18On cross-examination, the respondents spent a significant amount of time questioning the applicant with respect to his mitigation efforts. The applicant produced a list of 35 jobs that he applied for between November 15, 2005 and June 27, 2006. The applicant by his own admission then stopped looking for work, as his wife was about to return to work after maternity leave and they had decided as a family that he would then become a stay-at-home parent if he had been unable to find work by July, 2006. The respondents suggested that the applicant had not made enough of an effort to mitigate. The applicant testified that he applied to jobs that were posted and for which he believed he had the necessary skills. He does admit that he did not cold call businesses that did not have postings.
Analysis
19The respondents argue that the applicant was not terminated from his employment due to his disability, but simply because it was always part of the business plan that the personal respondent would learn the applicant’s job and eliminate the highest salary in the business. The respondents further argue that at the time the applicant advised he was ready to return to work there was no issue of disability because his diabetes was under control, and that he did not ask for and nor was he refused any accommodation for a disability.
20The applicant argues in return that, but for his becoming ill, he would have been allowed to continue in the position. The applicant further relies on Grzesiak v. DOT Benefits Corporation, 2008 HRTO 206, and Wall v. Lippe Group, 2008 HRTO 50, and other decisions of this Tribunal which he contends stand for the proposition that failing to keep a job open for an employee who is off due to a Code recognized reason (which he argues includes diabetes) is a violation of his Code protections.
21With respect to damages, the applicant argues that he adequately attempted to mitigate his damages by trying to find work but was unable to secure employment between November 2005 and July of 2006, when he stopped looking. The applicant also argues that he is entitled to $30,000 in monetary compensation for the breach of his Code rights and lost income for the period November 5, 2005 to July 2006 at $640 per week.
Findings
22It is my finding that the personal respondent had always intended to learn the applicant’s job functions and eventually terminate his employment. This is supported by the fact that (a) no one was hired on a permanent basis to do the job; and (b) the company has significantly reduced its labour force.
23[However, I am also of the view that, but for the applicant’s disability, the assuming of the applicant’s duties by the respondent and the termination of the applicant’s employment would not have occurred until at least the spring of 2006. Autumn and winter are the busiest times of the year in the dry cleaning business and I do not find it credible that the corporate respondent would have terminated its head cleaner’s employment during that period unless the personal respondent had been forced to learn the job. The personal respondent had owned the business since February 2004 and by October of 2005, he still had not learned how to perform all of the head cleaner’s tasks. As it was, it took Mrs. Vidamore coming in at least once a week for two to three months to teach him all of the job functions, and that was with a willing and focused teacher. One could imagine that it would have taken longer with the personal respondent merely shadowing the applicant, as had been his past practise, especially as the applicant might fear losing his job.
24Based on the evidence of the personal respondent, Mrs. Vidamore attended at the business once to twice a week for two to three months. At its highest, this is 25.8 days (using a 4.3 week month) and at its lowest it represents 8.6 days (one day a week for two months). Due to the personal respondent’s poor memory, the self serving nature of his evidence, and the failure to produce the pay records for Mrs. Vidamore, I find the higher of 25.8 days to be the most appropriate. This constitutes five weeks of work, a period that would have taken the applicant to the second week of December. I find it unlikely that the employer would have terminated the employment a week or so before the busy winter and holiday season. The earliest the termination was likely to have occurred would have been February.
25I find that the timing of the decision to terminate the applicant’s employment was directly related to the fact he had been required to be absent from his position due to a disability. This decision contravenes the Code right to freedom from discrimination in employment.
Award
26I award the applicant $8,320 for 13 weeks lost income from November 8, 2005 to February 3, 2006. I award $5,000 for the injury to dignity, feelings and self-respect. While this award is at the low end of the spectrum, after reviewing the Tribunal’s case law I think it appropriate given the circumstances including the effect of the termination on the applicant and the fact that the applicant’s employment would have been terminated in any event.
27The award for lost income is subject to prejudgment interest in accordance with the Courts of Justice Act from December 21, 2005. The award for the injury to dignity, feelings and self-respect is subject to prejudgment interest from November 7, 2005. Post judgment interest in accordance with the Courts of Justice Act is payable on the entire award commencing 30 days from the date of this Decision.
Dated at Toronto, this 25th day of May, 2010.
”Signed by”
Andrew M. Diamond
Member