Demenint v. G.H. International, 2010 HRTO 120

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Demenint Applicant

-and-

G.H. International, a division of IKO Industries Ltd., Luis Acosta and Fred Pignataro Respondents

DECISION

Adjudicator: Jennifer Scott Date: January 19, 2010 Citation: 2010 HRTO 120 Indexed As: Demenint v. G.H. International

AppearanceS BY

Gary Demenint, Applicant ) On his own behalf G.H. International, a division of IKO ) Industries Ltd., Luis Acosta and ) Daniel Pugen, Counsel Fred Pignataro, Respondents )

Procedure

1This is an Application filed March 9, 2009, under section 53(5) 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 November 8, 2007, and abandoned upon filing this Application with the Tribunal.

2The hearing was conducted on November 23, 2009, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(5) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are more than one year old by the time they reach the Tribunal. Gary Demenint gave evidence in support of his Application. Fred Pignataro, Jill Ferenczi and Luis Acosta testified for the respondents.

Nature of the Dispute

3The applicant, Gary Demenint, claims discrimination in employment on the basis of disability pursuant to sections 5 and 9 of the Code against G.H. International. The applicant alleges that his disability was a factor in the decision of G.H. International to terminate his employment on October 31, 2007.

Decision

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

Background

5G.H. International, a division of IKO Industries Ltd. (“IKO”), manufactures asphalt building materials. The personal respondent, Fred Pignataro is the general manager of G.H. International’s Mississauga facility. The personal respondent, Luis Acosta is the plant manager at that facility.

6On or about March 21, 2007, the applicant commenced employment with G.H. International as a general labourer.

7In May 2007, the applicant advised Luis Acosta that he had diabetes.

8On July 26, 2007, the applicant was offered permanent employment with G.H. International as a plant mechanic. The permanent employment contract did not start until October 15, 2007 because the applicant delayed providing the necessary banking information. From July 26, 2007 to October 15, 2007, the applicant continued to work as a temporary employee.

9The applicant concedes that during his temporary employment, he had three or four meetings with Mr. Acosta to address complaints about his work performance including his use of foul language, housekeeping and complaints by his co-workers.

10Under the employment contract, the applicant had a three-month probationary period commencing October 15, 2007. The relevant term is reproduced below:

The Employee’s first three months of active service are considered a probationary period during which time the Company will assess the Employee’s suitability for the position. If during that time the Company forms the opinion, at is sole and exclusive discretion, that the Employee is not suited for the position, the Employee’s employment will be terminated without any further obligation on the part of the Company, and specifically, without any obligation on the part of the Company to provide the Employee notice of termination or pay in lieu thereof under the Agreement, statute or common/civil law.

11The applicant was required to have a pre-employment medical as a condition of receiving permanent employment. On October 24, 2007, the applicant had a medical with Dr. Kivlichan, an independent medical doctor. When the applicant told Dr. Kivlichan that he had diabetes, the doctor questioned why he was not taking medication for heart disease and kidney disease because of the increased risk associated with diabetes. The applicant felt the doctor had animosity towards him. The applicant subsequently filed a complaint against the doctor for his professional conduct.

12Dr. Kivlichan recommended the applicant for employment on the pre-employment medical form. The form contained the following comment from the doctor: “concerned with medication for underlying health issues/mild left thigh soft tissue injury”.

13On or about October 25, 2007, Jill Ferenczi, the Human Resources Manager for G.H. International, received the completed pre-employment medical form from Dr. Kivlichan. Ms. Ferenczi worked at the Brampton office of IKO.

14Ms. Ferenczi contacted Fred Pignataro and informed him the applicant was suitable for employment. As per her standard practice, she did not provide any of additional information contained on the form. Mr. Pignataro spoke to Ms. Ferenczi about performance concerns regarding the applicant. Ms. Ferenczi reminded Mr. Pignataro of the probationary period under the employment contract. The pre-employment medical form was filed by Ms. Ferenczi and was not sent to Mr. Pignataro.

15On October 25, 2007, Luis Acosta called the applicant to a meeting to discuss his employment with G.H. International.

16Mr. Acosta met with the applicant on October 26, 2007 and informed him his employment was terminated because of performance problems including housekeeping practices, order, cleanliness and interactions with co-workers.

17The applicant met with Fred Pignataro and Mr. Acosta on October 31, 2007 to review the reasons for his termination.

18A letter of termination was issued on October 31, 2007 stating the applicant’s employment was terminated within his probationary period under the terms of the employment agreement.

Alleged Discrimination

19The applicant alleges that G.H. International’s decision to terminate his employment was influenced, in part, by his diabetes. The applicant relies on the medical and in particular, the timing of the medical and his termination, to support his claim. The applicant’s employment was terminated two days after the medical.

20The personal respondent, Fred Pignataro, states that when he made the decision to terminate the applicant, he was unaware of the applicant’s diabetes. Mr. Pignataro testified that the only information he received following the medical was the applicant was suitable for employment. The company submits that because Mr. Pignataro was unaware of the applicant’s diabetes, the decision to terminate could not have been influenced by the applicant’s disability.

21I do not accept that G.H. International was unaware of the applicant’s diabetes. Luis Acosta, the plant manager, had knowledge of the applicant’s diabetes. Mr. Acosta was integrally involved with the applicant’s termination. He called the applicant on October 25, 2007 and requested he attend a meeting to discuss his employment. Mr. Acosta met with the applicant on October 26, 2007 and informed him that his employment was terminated. Mr. Acosta was copied on the final termination letter dated October 31, 2007 from Mr. Pignataro. I therefore find that G.H. International was aware of the applicant’s diabetes when it terminated the applicant’s employment. The issue before me is whether the timing of the termination two days after the medical establishes a prima facie case of discrimination.

22I find that the close proximity between the medical and the termination is insufficient on its own to establish that the applicant’s diabetes was a factor in the decision to terminate his employment. I make this finding for several reasons. Firstly, the applicant was recommended for employment after the medical. This contradicts any suggestion that the medical was a factor in the termination decision. Secondly, the information on the medical form which raised concerns about medication for “underlying health issues” was not communicated to Mr. Pignataro or Mr. Acosta. The form was filed by Ms. Ferenczi in the Brampton office of IKO and was not forwarded to the Mississauga office of G.H. International. Thirdly, Mr. Acosta was aware of the applicant’s diabetes. He was told the applicant had diabetes in May 2007. If the applicant’s diabetes was relevant to the decision to terminate, it would have been relevant to the decision to make the applicant a permanent employee in July 2007.

23The applicant asks the Tribunal to make a causal link between the medical and his termination because the medical was a negative experience for him. I accept that the applicant was unhappy with the way Dr. Kivlichan conducted the medical. He was upset enough to file a complaint against him. However, I am not prepared to assume that Dr. Kivlichan, an independent medical practitioner, influenced the decision to terminate by providing information to Mr. Pignataro directly that contradicted the information on the pre-employment medical form.

24The applicant has not established on a balance of probabilities that his diabetes was a factor in the decision to terminate his employment on October 31, 2007. As a result of my findings, the Application is dismissed.

Order

25In 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.