Jack Phinney v. Wessuc Inc., Hank Jay Van Veen, Shane Van Veen, Ray Van Veen and Richard Van Veen, 2010 HRTO 1331

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jack Phinney

Applicant

-and-

Wessuc Inc., Hank Jay Van Veen, Shane Van Veen, Ray Van Veen and Richard Van Veen

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: June 11, 2010

Citation: 2010 HRTO 1331

Indexed As: Phinney v. Wessuc

AppearanceS BY

Jack Phinney, Applicant ) Axel Buettgen, Counsel

Wessuc Inc., Hank Jay Van Veen, Shane Van Veen,) Robert Dowhan, Counsel

Ray Van Veen and Richard Van Veen )

1This is an Application filed on February 12, 2009 and perfected on May 5, 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 July 11, 2007 and abandoned upon filing this Application with the Tribunal.

2The hearing was conducted on May 17, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(5) applications proceed in an expeditious manner. The following witnesses gave evidence: Jack Phinney, applicant; and the personal respondents Hank Jay Van Veen and Shane Van Veen, the co-owners of the corporate respondent, Wessuc Inc. (“Wessuc”).

Nature of the Dispute

3The applicant claims discrimination in employment on the basis of disability pursuant to sections 5 and 9 of the Code against Wessuc and the personal respondents. The applicant alleges that one of the reasons his employment was terminated in May 2007 was because he had suffered a massive heart attack in September 2006.

4The respondents dispute the applicant’s heart attack is a disability under the Code because he fully recovered and required no accommodation in the workplace. For the reasons set out below, I do not have to decide this issue. I have, for the purposes of this Decision, assumed that the fact that the applicant had a massive heart attack and was subsequently monitored for his heart constitutes a disability under the Code.

Decision

5The Application is dismissed. What follows are my reasons.

Background

6Wessuc carries on the business of hauling bio-solids from water and waste treatment facilities. The bio-solids are transported from treatment plants to either storage facilities or farmers’ fields depending on the season of operation. Wessuc provides this service mostly to municipal governments.

7The applicant worked as a driver for Wessuc from March to August 2004 as an independent broker. In April 2005, he commenced full-time employment with Wessuc as a driver.

8The applicant had a massive heart attack on September 26, 2006. His employment with Wessuc was terminated at that time.

9On February 5, 2007, the applicant returned to work at Wessuc. Although not in evidence before me, the parties agree the applicant provided a doctor’s note indicating he was fit to return to work with no physical restrictions. The applicant stated he was cleared to return to work by three different doctors. His re-employment was subject to a three-month probationary period.

10On his return to Wessuc, the applicant was assigned to work in Barrie. The applicant found it difficult working in Barrie because of the distance from his home and requested that he return to his regular job in Haldimand Norfolk. His regular job involved driving a truck with a pump. The applicant returned to Haldimand Norfolk in mid March 2007.

11On April 26, 2007, the applicant had a doctor’s appointment at the end of the work day because he had a sore throat. The applicant was uncertain whether he would be able to return to work the following day and asked if he could call the next morning to let the company know if he was able to work. The applicant was told to take the following day off work.

12On April 30, 2007, the applicant was assigned to a different truck because of ongoing problems he was experiencing operating the pump on his truck.

13During the morning of May 2, 2007, the applicant was asked to return to the shop on Colborne Street in Brantford. The applicant was aware that this was an unusual request. The applicant did not return to the shop and instead drove his truck to the storage facility. The applicant believes he suffered a nervous breakdown on his way to the facility although there is no medical evidence before me to support this assertion.

14On May 4, 2007, the applicant met with the secretary at the head office who asked him for his keys.

15On May 12, 2007, the applicant received written notice that his employment had been terminated on May 2, 2007. The applicant received two weeks’ severance pay.

16On May 19, 2007, the applicant obtained new employment. He remains in this employment.

Allegations of Discrimination

17The applicant alleges that he was treated differently at work because he had suffered a massive heart attack and that he was ultimately terminated for this reason. The allegations of differential treatment are addressed below.

Reduction of Work Hours

18When the applicant returned to Wessuc in February 2007, he was assigned to work in Barrie. The applicant had worked in Barrie before. The applicant shared his job with a part-time employee.

19The applicant’s hours of work were reduced on his return. He believes the reduction in work hours was related to his heart attack.

20Wessucs business is seasonal in nature. It is busier in the summer when the bio-solids are applied to farmers fields. The application (summer) season runs from April 1 to November 30. In the winter season from December 1 to March 30, the material is deposited in storage facilities and Wessuc`s staff is reduced from 60 to 20 employees.

21The applicant worked in Barrie for only a few weeks. When he asked to return to his former job in Haldimand Norfolk, Wessuc agreed. By then, Wessuc`s business was gearing up for the busy application season and the applicant was given full-time hours.

22I find the applicant’s work hours were reduced during the first few weeks of his return to employment because there was less work to be done in the winter season and not because he had suffered a heart attack.

Doctor’s Appointments

23The applicant had a doctor`s appointment on April 26, 2007 because of a sore throat. He was uncertain whether he would be able to work his next shift and indicated he would let Wessuc know the following day whether he would be in. The applicant was told by Ray Van Veen, the dispatcher at Wessuc, to take the following day off work “for good behaviour”. The applicant believes he was being disciplined when he was forced to take this day off.

24The applicant was not treated differently because of a disability when he was told to take the day off work. The applicant had a sore throat on April 26, 2007. A temporary condition of this nature is not a disability under the Code. In any event, the applicant’s complaint he was forced to take off work is without merit because his doctor had instructed him to take April 27 off and return to work on April 30, 2007.

25One of the related issues in this case involves Wessuc’s policy on medical appointments. When employees have medical appointments, Wessuc requires them to take the entire day off. This policy is in place for operational reasons. Because medical appointments are somewhat unpredictable in terms of the time that is necessary to attend them, it is difficult operationally to schedule drivers around these appointments. As such, Wessuc requires employees to take a full day off to attend medical appointments.

26The applicant objected to Wessuc`s policy because it required him to take more time off work than he wanted to attend a medical appointment. On one occasion, the applicant cancelled a medical appointment for a follow-up visit relating to his heart because he did not want to take the time off work. When Hank Jay Van Veen became aware that the applicant had cancelled a medical appointment, he told the applicant he was required to attend his medical appointments and if he did not, he would be terminated because the company needed to know he was fit to drive.

27Wessuc’s approach to the applicant’s medical appointments is not discriminatory. It provided reasonable accommodation by giving the applicant time off to attend medical appointments and required him to attend these appointments to ensure his continued fitness to work.

MACK Truck

28On April 30, 2007, the applicant was assigned to drive a MACK truck while the company determined whether the pump problems were related to the pump itself or the applicant`s handling of the pump.

29The applicant was very unhappy with the physical condition of the MACK truck. It was dirty, in generally poor condition and low on fluids. The applicant complained about the condition of the truck and he was given a Volvo truck to drive the following day. On May 2, 2007, the applicant was returned to the MACK truck. The MACK truck had been cleaned and the fluids replenished.

30There is no evidence that the applicant’s assignment to the MACK truck had anything to do with his heart attack. The original driver of the MACK truck was assigned to the applicant`s truck to see whether he could operate the pump. It was subsequently determined that there was nothing wrong with the pump. When the applicant complained about the condition of the MACK truck, it was cleaned. The applicant conceded during the hearing of this Application that his assignment to the MACK truck had nothing to do with his physical condition. It is therefore clear that this complaint is unrelated to his heart attack.

Termination

31The applicant was very upset about being assigned to the MACK truck. He was told by Hank Jay Van Veen that this was a temporary assignment. The applicant complained about the assignment to Richard, Shane and Ray Van Veen. On May 2, 2007, Hank Jay Van Veen was called by one of Wessucs clients, Veolia Water, and was told the applicant had been complaining about Wessuc not training its pump operators properly and that Wessuc did not care about its employees. The applicant had also threatened to complain to the Ministry of Labour. At this point, a decision was made by Hank Jay Van Veen to terminate the applicants employment. The issue before me is whether the applicant`s heart attack was a factor in this decision.

32There is no evidence before me linking the applicants heart attack in September 2006 to the termination of his employment in May 2007. The applicant was re-hired in February 2007 by Wessuc with full knowledge that he had suffered a massive heart attack. His employment was terminated in May 2007 because of his repeated complaints concerning the pump, his assignment to the MACK truck and his complaint to a customer about improper training by Wessuc and the fact that Wessuc did not care about its employees. None of these complaints related to the applicants physical health. The fact that the applicant had had a severe heart attack had nothing to do with the decision to terminate his employment in May 2007 and his complaint on this basis is dismissed.

33The one issue that remains concerns the termination of the applicants employment in September 2006 following his heart attack. In the response to the complaint, Wessuc concedes the applicants employment was terminated in September 2006 because of health reasons. On the Record of Employment, the reason for termination is “illness or injury”.

34The applicant was not aware his employment had been terminated in September 2006 until he received notice of his May 2007 termination. When the applicant was ready to return to work in February 2007, he was re-employed and subject to a further probationary period.

35Shane Van Veen testified that he believed Wessuc had to terminate the applicants employment to enable him to receive Employment Insurance sick benefits. He thought that the applicant or his wife had requested the applicants Record of Employment.

36Although on its face it is discriminatory to terminate someones employment when they suffer a heart attack, in this case, it was done to assist the applicant, not to disadvantage him. The applicant did not have health benefits with Wessuc. Accordingly, in order to access sick benefits through Employment Insurance, Wessuc believed it had to issue a Record of Employment terminating the applicants employment. When the applicant was ready to return to work, he was re-hired. The only disadvantage that resulted was he was put on probation for three months. However, he was not terminated as a probationary employee. He was terminated because of his complaints, predominately his complaint to a customer of Wessuc. This had nothing to do with the fact that he was a probationary employee or because he had suffered a massive coronary eight months before.

37The applicant was not treated differently in his employment because he had a massive heart attack in September 2006. In light of this conclusion, I do not find a violation of sections 5 and 9 and of the Code by the respondents.

38This Application is dismissed.