Cozy Sosoo v. Winners Merchants Incorporated, 2010 HRTO 1367

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cozy Sosoo

Applicant

-and-

Winners Merchants Incorporated

Respondent

-and-

Workers United Ontario Council

Intervenor

DECISION

Adjudicator: Sheri D. Price

Date: June 16, 2010

Citation: 2010 HRTO 1367

Indexed as: Sosoo v. Winners Merchants

Appearances

)

Cozy Sosoo, Applicant ) On his own behalf

)

)

Winners Merchants Inc., Respondent ) Robert Little, Counsel

)

)

Workers United Ontario Council, Intervenor ) Andrea Bowker, Counsel, and

) David Paul, Representative

)

INTRODUCTION

1This Application, filed under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the respondent discriminated against the applicant on the basis of race, ancestry, place of origin, ethnic origin, and disability, contrary to the provisions of the Code.

2At the hearing of this matter, the applicant testified on his own behalf.

3The applicant makes two basic claims against the respondent. First, he alleges that while he was employed by the respondent, his direct supervisor mistreated him because he is a continental African. The applicant alleges that this constituted discrimination on the basis of race, ancestry, place of origin and ethnic origin.

4The applicant also alleges that, on January 3, 2008, the respondent terminated his employment following a November 28, 2007 workplace injury. The applicant alleges that this constituted discrimination on the basis of disability, and was part of a “common thread” of harassment and discrimination against him on the basis of his continental African origin.

5The respondent disputes that the applicant’s supervisor singled the applicant out for harsher treatment than his coworkers on the basis of his continental African origin. The respondent submits that most, if not all, of the employees who worked for the supervisor in question expressed similar complaints about the supervisor to the respondent, including two written complaints filed on behalf of all of the employees in the applicant’s department in January 2007 and April 2007 and a grievance filed under the collective agreement.

6With respect to its decision to terminate the applicant’s employment, the respondent submits that, on December 20, 2007, it learned from the Workplace Safety and Insurance Board that the applicant had been working for another employer from November 29 to December 9, 2007, during which period the applicant claimed to be completely disabled from performing even modified sedentary duties for the respondent or driving or taking public transit to the respondent’s workplace.

7On January 3, 2008, after three unsuccessful attempts to meet with the applicant to discuss his status, the respondent terminated the applicant’s employment. The reasons for termination as set out in the respondent’s January 3, 2008 termination letter were the applicant’s unauthorized absence from work from November 28, 2007; his refusal to report for regular or modified work as scheduled; and his refusal to attend three meetings with the respondent in late December 2007 or to contact the respondent regarding the reasons for his failure or inability to attend the meetings.

8The applicant did not dispute that he was working for another employer during the period in question but testified at the hearing that he was able to perform his security guard job for the other employer because he was permitted to sleep at work. He testified that the modified duties the respondent had available for him were not suitable primarily because his doctor told him not to do modified duties, and because the dust and the noise in the respondent‘s workplace aggravated his pain, among other reasons.

9At the conclusion of the applicant’s case, the respondent requested that the Tribunal dismiss the Application on the basis that the applicant had not established a prima facie case of discrimination. In the alternative, the respondent argued that the allegations of discrimination on the basis of race, ancestry, place of origin and ethnic origin ought to be dismissed on the basis of delay, because the alleged incidents of discrimination on those bases occurred more than a year before the Application was filed, and were not part of a series of events that included the January 2008 termination of the applicant’s employment.

10The Intervenor did not make submissions on these issues. The Intervenor, formerly UNITE HERE Ontario Council, indicated at the hearing that its name had changed to Workers United Ontario Council. The style of cause is amended accordingly.

11For the reasons that follow, the Tribunal dismisses the Application because the evidence called by the applicant did not make out a prima facie case of discrimination on prohibited grounds under the Code.

12I note that although the respondent may well dispute some or all of the applicant’s allegations and evidence, it has not yet called any evidence in this proceeding. In accordance with the case law, I have considered only the evidence of the applicant in determining whether a prima facie case been made out under the Code.

EVIDENCE

Hiring

13The applicant testified that he originally worked for the respondent as a temporary employee (through a temp agency) for three months in 2004 and a further three months in 2005. According to the applicant, he was advised by the trade union in the workplace that the collective agreement prevented temporary employees from working for the respondent for more than three months.

14The applicant testified that he applied for permanent work with the respondent in 2004 and again in 2005 but was not hired.

15In or around September 2006, the applicant applied for a permanent position with the respondent again and was interviewed. The applicant returned to the respondent as a temporary employee in the respondent’s sortation department on September 11, 2006. He was offered a permanent position on September 29, 2006.

16The applicant submits that, in retrospect, he believes the delay in hiring him as a permanent employee was because he was from continental Africa.

Training

17The applicant testified that he was the only continental African employee in the sortation department of approximately 17 employees, although he acknowledged some racial diversity in the workplace and that there were other “African American” employees and employees from the Caribbean in his department.

18The applicant’s job in sortation involved taking boxes off a conveyor to build skids, which were then shipped out. The applicant testified that he received only one hour’s training on his first day of work in sortation. He testified that “it was a hell that day” but he was “determined” and he performed his work well. The applicant testified that the supervisor did not criticize the applicant’s work performance other than to ask once, “Is this the skid that you have been working on for the past hour?” The applicant testified that he did not answer the supervisor, and he went away.

19After the applicant worked as a temporary employee in the sortation department for approximately two weeks, the respondent hired him on a permanent basis in that department.

20The applicant submits that the training he received when he started working for the respondent was inadequate. He testified that much later he discovered that other employees were receiving one or sometimes two weeks’ training, during which time they worked alongside more experienced employees. Other than making a bald assertion that other employees received more training than him six months after he was hired, the applicant did not provide any details about who got more training than him, or when, or what their race, ancestry or place of origin was compared to that of the applicant.

21Moreover, on the applicant’s own evidence, it is clear that he had worked for the employer for at least six months in 2004 and 2005. There was no evidence about whether other employees who subsequently got more training than the applicant had the same level of work experience with the respondent as the applicant. Moreover, on the applicant’s evidence, however little training the applicant received, he performed his duties well. The applicant testified that his approach to work “was to clear [his] lines. [He] did not want it to pile up and [he] would clear [his] lines very fast.” He testified that as soon as he cleared his lines, his supervisor would assign him other tasks.

Plot

22The applicant also testified that another employee of the respondent, an Accuracy Checker, told him that the applicant’s supervisor instructed the Accuracy Checker to be “extra critical” of the applicant’s work as part of a plot to get the applicant fired. This was pure hearsay and, as such, inherently unreliable. I am not prepared to give it any weight, particularly where no other evidence was presented by the applicant to substantiate this allegation. In any event, the applicant testified that the Accuracy Checker in question, a union steward, did not participate in any plot against the applicant but rather was “determined to help [him] out.”

Verbal Abuse, Yelling and other Mistreatment

23Much of the Application relates to allegations that the applicant’s supervisor yelled at and generally mistreated the applicant because he was from continental Africa. Although the applicant testified that his supervisor yelled at him “every day”, he provided only a few examples of his supervisor yelling at him. Specifically, the applicant testified that on one occasion in October 2006, the supervisor asked him where he was going and when he said he was going to his work station, his supervisor told him to “hurry up and go then.” The applicant also testified that during the week of January 2, 2007, he was on his way to lunch (by a direct route but one which had been “prohibited” by his supervisor) two minutes before break time and his supervisor “screamed” at him, “Where are you going? Get back to work.” On another occasion in early 2007, the applicant testified that he was late getting to his work station and his supervisor yelled at him not to bother to run because he was already late.

24The applicant also testified that on one occasion in November 2006, his supervisor asked the applicant if he had swiped out of work 18 minutes after what would have been the end of the applicant’s shift and closing time. The applicant testified that he and another employee told the supervisor that the applicant had not been on the floor at the time in question, contrary to what the swipe records apparently (inaccurately) indicated. The applicant testified that his supervisor told him everything was okay and not to worry about it. The applicant contends that the implication behind the supervisor’s query was that the applicant had stayed behind to steal. However, in the absence of any other evidence, I fail to see how asking the employee a single question about this, accepting his response at face value, and then telling him that everything was okay and not to worry about it was tantamount to an accusation.

25The applicant testified that on another occasion in January or February 2007, he was in the washroom when other employees told him that his supervisor was looking for him. The applicant testified that he exited the washroom to find his supervisor waiting for him. The applicant testified that the supervisor told the applicant that he had been looking for him and did not know where he was. The applicant testified that when employees left their work stations to go to the washroom, they were supposed to sign in and out of a book. He testified that he had signed himself out as required, however, someone had signed him back in, which would have indicated to his supervisor that the applicant ought to have been at his work station.

26In the Application he filed with the Tribunal, the applicant alleged that the supervisor “always” repeated derogatory phrases under his breath when he was around the applicant. On the stand, however, the applicant did not give any evidence of derogatory remarks by his supervisor. He testified only that his supervisor said things “under his breath” and the applicant was “not able to catch it properly”.

27The applicant alleged that his supervisor required him to provide doctor’s notes substantiating each of the five times he went to see doctors, but “not all” employees were required to do the same. His evidence on this point was very vague. He testified that “people” would tell him that they planned to call in sick and predicted that the supervisor would not require them to provide a doctor’s note. He testified that he could not remember the names of any such employees. The applicant did not call any evidence to substantiate his claim that other employees were not required to submit doctor’s notes. During cross-examination, he testified that another employee who was not from continental Africa was “one of the people” whom his supervisor also required to bring in doctor’s notes. The applicant testified that in light of the other employee’s attendance record, he “could see why [he] would be required to bring a doctors note,” but the applicant did not have that kind of attendance record.

Overwork

28The applicant also testified that he was overworked by his supervisor. He gave three examples.

29The applicant testified that the employees rotated through the different lines every week and during the week of October 30 to November 3, 2006, it was his turn to work on a very busy line, line 18. The applicant testified that the protocol is that “a floater is supposed to be with you on line 18.” He testified that he asked a floater employee to help him on the line, but the floater was reassigned by the supervisor somewhere else. The applicant testified that he did not tell the supervisor that he needed help or complain that he had too much work to do. There was no evidence about the work assigned to the floater.

30The applicant also testified that on November 20 and 21, 2007, he was working on a very busy line and finding it “impossible to cope”. He testified that he was denied help. He did not testify as to whom he asked for help or who denied him. He testified that he left work due to illness on November 22, 2007, and that he later heard that the person who replaced him on the line in question left it after four hours due to the workload, and that four employees subsequently worked together on the line. This was hearsay. The applicant did not call witnesses with first-hand knowledge of what transpired in his absence.

31Finally, the applicant testified that on December 27, 2006, his supervisor initially assigned him to a line which was not busy but about 30 minutes later reassigned him to two lines (where “rogue” boxes were directed) which were very busy. The applicant testified that after working on the two lines in question for 15 minutes, he called his supervisor and asked for help with the lines. He testified that it was not until 15 minutes before closing that two or three employees arrived to help him. The applicant also testified that while he was working on the two lines, his supervisor frequently called his name over the paging system, telling him to clear his lines. The applicant testified that on December 29, 2006, he became ill due to overwork and left 15 minutes into the shift. He testified that his supervisor was kind and suggested he get a doctor’s note for the absence so that he would not lose out on his holiday pay.

32The applicant testified that as a general rule, however much work he was assigned, he got all of his work done, and done well, and without complaint. He testified that he “generally managed without help.” He testified, “I did a good job and I worked twice as hard.”

Discipline

33Although the theory of the applicant’s case is that his supervisor was determined to build a case against the applicant so that he could get rid of him, the applicant testified that the only formal discipline he received in almost 16 months of working for the respondent was one warning. By letter dated January 31, 2007, the applicant received a warning for being late four times between November and January 2007. He admitted to being late on two of the four occasions, but maintains that the other two occasions he should not have been marked late because he was in his department at the time of the last bell and “within earshot” of the supervisor. However, the applicant also testified that the workplace was very regimented and that the respondent’s written “conditions of employment” required employees to be in their work areas and “ready for work” at the start of the shift and following breaks and lunches. The applicant’s evidence was that the workplace was very regimented and that the start of the shift following breaks was signalled by various bells and/or horns.

34Although he received no discipline other than the January 2007 warning, the applicant submitted that his supervisor singled him out for harsher treatment than others by keeping notes about him not swiping, losing his card, being late, etc. Under cross-examination, however, the applicant admitted that the supervisor kept notes about such things in relation to many of the employees in his department. However, the applicant submitted that in his case, the supervisor’s notes were more detailed. For example, he testified that the supervisor made a note about another (Jamaican) employee being late, but did not note the specific time that he arrived. The applicant submitted that in his case, the supervisor would note not only that the applicant was late but also the time. I fail to see the significance of this minor distinction in the supervisor’s notes, particularly since he did not rely on them to justify disciplining the applicant.

Locker

35The applicant contends that the fact that he did not have a locker for several months after he started work was another example of discrimination by his supervisor. The applicant testified that his supervisor did not arrange for him to get a locker when he started work. He testified that although Loss Control dealt with lockers at work, “everything passed through the supervisors”. The applicant testified that in June or July 2007, he approached Loss Control and asked to be assigned a locker. He said that during that conversation, his supervisor approached the applicant and the Loss Control person. The applicant testified that he could not remember what his supervisor said during that conversation, but testified that “he did not prevent me from getting a locker.” He testified, “[A]s I was talking to [the Loss Control officer], [the supervisor] rushed to ask almost as if he knew. That is how [the supervisor] got a locker for me.” The applicant never complained about not having a locker other than “telling” his supervisor he did not have one at some point. The applicant got a locker the same day he asked Loss Control for one.

Workplace Injury

36The applicant testified that he had a workplace injury to his lower back on November 28, 2007 which required him to be absent from work for six weeks, or until January 9, 2008. (Prior to the alleged workplace injury, the applicant had also requested and been granted vacation and a leave of absence which would allow him to be absent from work from January 7, 2008 to February 29, 2008.)

37On November 28, 2007, prior to his workplace injury, the applicant requested the following days off: Thursday, November 29; Friday, November 30; and Monday, December 3, 2007. Only November 30, 2007 was granted.

38Also on November 28, 2007, in what the applicant contends was a coincidence, after his request for time off was denied, the applicant experienced the onset of back pain and he reported a workplace injury to his supervisor approximately 10 minutes before the end of the shift. According to the applicant, there was no specific event which caused the injury, but rather his back became sore during the shift.

39When the applicant reported the injury to his supervisor on November 28, 2007, the supervisor asked the applicant to complete an accident report form. The applicant testified that he could not complete the form because he did not have his reading glasses at hand and that is what he told his supervisor at the time. The applicant testified that before he left work on November 28, 2007, his supervisor gave him some Functional Ability Forms to be completed by his doctor.

Applicant’s Work Restrictions

40The applicant’s evidence with respect to the Functional Abilities Form was somewhat unclear. He initially testified that the form was completed and faxed by him to the respondent on November 30, 2007. However, he also testified that the form was signed by his doctor and submitted to the respondent on December 3, 2007.

41Whenever it was completed and submitted, the Functional Abilities Form (or part thereof) which the applicant faxed to the respondent indicated that as of November 30, 2007, the applicant was physically unable to work and it was unknown when he would be able to return to work. According to the form submitted by the applicant, the applicant’s physical restrictions were: unable to stand for more than 30 minutes, unable to sit for more than 30 minutes, no lifting from floor to waist or waist to shoulder, no stair or ladder climbing, and walking 40 feet. The form also indicated that the applicant could not travel to work by car or by public transit. According to the Functional Abilities Form, the applicant also had restrictions on bending/twisting, pushing and pulling with both arms, and exposure to vibration (whole body). The form indicated that the restrictions were to apply for “14+” days, or at least until December 14, 2008.

42It emerged during the applicant’s testimony that the applicant’s doctor did not fill out the applicant’s restrictions. Rather, the applicant testified that he himself completed the restrictions part of the form. He testified that his doctor instructed him to do this.

Refusal of Modified Duties

43According to the applicant, the respondent made many attempts for the applicant’s early return to modified duties.

44The applicant testified that at approximately 5:00 p.m. on November 30, 2007, he spoke to Greg Brown of the respondent who had called the applicant to offer him modified work and to tell the applicant that the respondent needed him to drop off his completed Functional Abilities Form. The applicant testified that he refused the respondent’s offer of a return to work during the November 30, 2007 call. He also testified that he told Mr. Brown that he was in too much pain to bring in the Functional Abilities Forms, among other reasons.

45Also on November 30, 2007, the applicant testified that he received and read a letter from the respondent offering him modified duties based on standard WSIB restrictions for low back injuries. The modified duties offered in the letter included ticketing at conveyor level with a chair available and no lifting of boxes and cutting labels at table height with a chair available. The applicant did not respond to the November 30, 2007 written offer.

46Significantly, after speaking to Mr. Brown and reading the November 30, 2007 letter, at 7:00 p.m. the applicant went to work with another employer where he completed a 12-hour overnight shift as a security guard in a gold refinery, then slept for three or four hours, then worked for another hour-and-a-half or so before leaving work.

47On December 7, 2007, the applicant testified that he received a December 5, 2007 letter from the respondent indicating that complete details about the applicant’s November 28, 2007 workplace injury had still not been provided. The letter also stated that the respondent continued to have modified duties available for the applicant and advised the applicant that he was expected to attend a meeting on the afternoon of December 6, 2007, with Peter Iasz, a Return to Work Analyst with the respondent. The purpose of the meeting was to discuss the applicant’s return to work. The December 5, 2007 letter also advised the applicant to bring his original Functional Abilities Form to the meeting, completed and signed by the physician. (The respondent’s position was that one or more pages were missing from the forms faxed to the respondent by the applicant and they had not been signed by the applicant’s doctor.)

48The applicant testified that he did not receive the December 5, 2007 letter until December 7, 2007. He therefore did not attend the December 6, 2007 meeting with Mr. Iasz because he did not know about it.

49The applicant worked an eight-hour shift for his other employer on December 6, 2007. He also worked a 7.75-hour shift on December 7, 2007.

50The applicant testified that on Friday, December 7, 2007, after he had finished working for his other employer, he spoke to Mr. Iasz by phone. He testified that Mr. Iasz told the applicant that he wanted the applicant to come in for an urgent meeting. The applicant testified that he told Mr. Iasz that he did not think that he was physically able to come in for a meeting because he could not tolerate sitting for long. Mr. Iasz offered to accommodate the applicant in various ways, by letting him alternate his position during their meeting between sitting, standing and even lying down. When the applicant told him that the respondent workplace was oppressive, Mr. Iasz offered to meet with him off-site. Ultimately, the applicant agreed to meet with Mr. Iasz at the respondent’s premises on Monday, December 10, 2007.

51The applicant testified that on December 10, 2007, he got a ride to the respondent’s offices. He testified that he expected the meeting to last only 10 minutes based on what Mr. Iasz had told him on the phone. The applicant testified that when he arrived, security paged Mr. Iasz to alert him that the applicant had arrived to meet with him. The applicant testified that when Mr. Iasz had not responded to the page after 10 minutes, he left.

52Also, on December 10, 2007, and unbeknownst to the respondent at the time, the applicant provided his other employer with a note he had prepared which stated that his only work restrictions were “not to stand nor sit, restrictively, for more than thirty minutes at a time … [and] not [to] walk restrictively for long distances.” The applicant advised the other employer that he was able to work for it because his work did not require him to do heavy lifting nor “restrictive standing and sitting”.

53Subsequently, the applicant received a further letter from the respondent dated December 10, 2007, in which the respondent reiterated its need to meet with the applicant for the purpose of obtaining outstanding details about the November 28, 2007 injury and the completed Functional Abilities Form. The letter also advised the applicant that, among other things, he was expected to attend a meeting with the respondent on December 12, 2007.

54On or around December 11, 2007, the applicant testified that he got a further call from the respondent advising him that he needed to come meet with the respondent on December 12, 2007. He testified that either a company or union representative told him that his employment would be in jeopardy if he did not attend the December 12, 2007 meeting. He went.

55Mr. Iasz and the applicant’s union representative attended the meeting with the applicant. During the meeting, Mr. Iasz had the applicant complete the accident report form which he had not filled out before leaving work on November 28, 2007. Mr. Iasz also reiterated to the applicant that the respondent had modified work immediately available for the applicant which was within the applicant’s restrictions as indicated on the partial Functional Abilities Form the applicant had submitted.

56During the December 12, 2007 meeting, the applicant refused the offer of modified work saying that he could not do modified work because his doctor told him not to. He wrote “not applicable” on the offer of modified duties. The applicant also reported that he could not work because his heel was sore and he could not wear the heavy safety shoes which were ordinarily required while working for the respondent.

57The respondent responded by giving the applicant a further Functional Abilities Form for completion by his doctor. The respondent also wrote to the applicant’s doctor on December 14, 2007, advising that the applicant’s restrictions indicated on the earlier form could be accommodated by the respondent and asking the doctor to consider the suitability of the respondent’s proposed modified work plan. In its letter, the respondent also asked the applicant’s doctor to indicate any accommodation required on account of the newly-reported heel injury and specifically asked for restrictions and limitations regarding the applicant’s use of safety shoes.

58In response to the request for additional information, the applicant provided the respondent with a December 14, 2007 doctor’s note which stated only that the applicant had “injured his back lifting at work Nov. 28/07. He is not fit to work for 6 wks. following the injury.”

59The applicant testified that he faxed the December 14, 2007 note to the respondent on the same date, and confirmed with his supervisor that the respondent had received the note and that that was all that that was needed from the applicant.

Termination of Employment

60On or about December 20, 2007, the respondent received its copy of a December 20, 2007 letter to the applicant from the Workplace Safety and Insurance Board (“WSIB”). The letter related to the applicant’s WSIB claim in respect of the November 28, 2007 injury he had reported while working for the respondent.

61In its December 20, 2007 letter, the WSIB found that no workplace injury occurred at the respondent workplace on November 28, 2007 and denied the applicant’s claim. This WSIB decision was based on information the WSIB had received from the applicant’s concurrent employer confirming that the applicant had worked for it as a security guard on November 29, 30, December 1, 4, 5, 6, 7, and 9, 2007, all of which time the applicant was claiming to be unable to perform even modified sedentary duties with the respondent.

62According to the December 20, 2007 letter, the applicant’s duties as a security guard required prolonged standing and walking, contrary to the restrictions which the applicant had provided to the respondent.

63The fact that the applicant had managed to get to work with the other employer on the days in question was also at odds with the applicant’s statements that he could not drive a car or use public transportation to get to work with the respondent (only five minutes from his house). The applicant testified that he drove himself to his other job about three times during the period in question, contrary to the restrictions on the Functional Abilities Form he himself completed and submitted to the respondent.

64By letter dated January 3, 2008, the respondent terminated the applicant’s employment. The reasons for termination set out in the letter included the applicant’s refusal to report for regular or modified work; his unauthorized absence from work from November 28, 2007; his refusal to attend three meetings with the respondent in late December 2007 to discuss his status or to contact the respondent regarding the reasons for his failure or inability to attend the meetings; and because of the information the respondent received from the WSIB that the applicant had been working elsewhere the entire time he was maintaining that he was completely disabled from working for the respondent.

65There is no dispute that the applicant did not attend any of the scheduled meetings, nor did he contact the employer with respect to his availability for the meetings. (Unbeknownst to the respondent, the applicant flew to Ghana on December 19, 2007, on a (changeable) ticket he had originally booked in June 2007.)

ANALYSIS AND DECISION

66In Ontario Human Rights Commission v. Simpson-Sears Limited, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, the Supreme Court of Canada confirmed that, in cases under the Code, the initial onus is on the applicant to establish a prima facie case of discrimination, at which point, the onus shifts to the respondent to justify its actions under the Code:

Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove… The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer (at para. 28).

67Where the applicant fails to make out a prima facie case of discrimination, it is neither legally correct, nor fair, just and expeditious to require the respondent to justify its actions under the Code: Jagait v. IN TECH Risk Management, 2009 HRTO 779 at para. 19.

68In this case, the applicant has made a number of broad, sweeping allegations that his direct supervisor mistreated him because he is from continental Africa and that the respondent then seized upon the opportunity to terminate the applicant’s employment when he suffered a workplace injury on November 28, 2007.

69Despite the breadth of the applicant’s allegations, the evidence proffered by the applicant at the oral hearing of this matter was not “complete and sufficient” to justify a finding of discrimination on the basis of a prohibited ground under the Code. The applicant had no direct evidence of discrimination, nor was the evidence sufficient as a basis upon which to infer that the applicant was discriminated against on the basis of race, ancestry, place of origin, ethnic origin or disability.

70With respect to the applicant’s claim that his supervisor mistreated him because he was from continental Africa, taken at its highest, the applicant has established that he is from continental Africa and that his supervisor treated him harshly in some respects. That alone, however, is not sufficient to make out a prima facie case that the respondent discriminated against or harassed the applicant on the basis of prohibited grounds under the Code.

71It has been said that the threshold for making out a prima facie case of discrimination is not a high one. However, in my respectful view, nor is it so low that merely establishing that one has been mistreated and that one identifies with one or more prohibited grounds under the Code will suffice to make out a prima facie case. If that were the case, then every single employee who experienced any kind of mistreatment would have a prima facie case of discrimination under the Code, since everyone identifies with one or more Code grounds just by virtue of her humanity. In order to make out a prima facie case of discrimination, the applicant’s evidence must establish a foundation upon which the Tribunal could find not only that the applicant was mistreated, but that he was mistreated on the basis of a prohibited ground under the Code. This is consistent with the Supreme Court of Canada’s decision in Andrews v Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, in which the Court defines discrimination thus:

Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.

72In this case, the applicant alleges that he was treated worse than others because he was from continental Africa. However, the applicant did not present evidence which would allow the Tribunal to make the necessary findings of fact to support that conclusion.

73First, the evidence fell short of establishing, even on a prima facie basis, that the applicant was singled out for harsher treatment than his coworkers. The applicant’s evidence in this regard suggested that all of the employees who worked for the supervisor in question had experiences similar to that of the applicant.

74Specifically, the applicant testified that two letters of complaint dated January 18, 2007 and April 25, 2007 were submitted to the respondent about the applicant’s supervisor on behalf of all of the employees in the sortation department and signed by 10 of the 17 employees in the department.

75The January 2007 letter contends that the applicant’s supervisor “harasses” all of the employees in his department and treats them in a “very demeaning” manner. In it, the employees complain about the manner in which the supervisor uses the paging system (“Go to your line, your line is jammed”) and the way he “yells out his orders”. The letters describes the supervisor as “mean” and “brash” and also complains about the unequal division of work in the department, overburdening ”some” (and not just the applicant). The supervisor’s treatment of the applicant on one occasion is cited as an example of mistreatment in the January letter, however the same letter also complains of the supervisor’s treatment of another employee whose race, ancestry, place of origin and ethnic origin were not described by the applicant during his testimony in any way. The January letter also notes that even “associates in other departments who come in contact with [the supervisor] have expressed equal dissatisfaction with his attitudes.”

76The April 2007 letter is written on behalf of the “entire associates of the afternoon shipping/sortation department” and sets out further examples of what it describes as “harassment, discrimination and inhumane treatment” by the supervisor in question, including yelling and screaming at associates; performing unionized employees’ work; failing to take adequate measures to replace absent employees; and not getting enough temporary employees assigned to the department, resulting in overwork of the employees. The letter claims that mandating use of a designated route to and from the lunchroom unfairly cuts into employees’ break time, is an “act of cruelty” and claims that “several associates have hurt themselves in this wild stampede.” The April letter ultimately formed the basis for a union grievance against the respondent which was filed on behalf of the “whole [sortation] department.”

77On the face of the letters, the supervisor treated all of the employees harshly. Moreover, the applicant attested that the January 18, 2007 and April 25, 2007 letters reflected his views, even at the time of the hearing. Indeed, the applicant testified that he was the one who drafted both letters on behalf of the “entire associates” in his department.

78According to the letters, many, if not all, of the other employees in the applicant’s department, none of whom were from continental Africa, had the same complaints as the applicant. At the hearing, the applicant acknowledged the supervisor mistreated all of the employees but maintained that his behaviour was “tilted more” against the applicant than others. However, he did not proffer evidence capable of supporting the findings of fact which would substantiate that claim.

79It seems that much of the applicant’s case was based on his belief that he was being mistreated because he was from continental Africa and on assumptions he was prepared to make about the underlying reasons for the supervisor’s behaviour. For example, the applicant testified that in retrospect he believed that the respondent’s delay in hiring him on a permanent basis was because he was a continental African. The applicant similarly testified that he “believed” that the termination of a union steward who had filed two grievances on the applicant’s behalf “had something to do with the role he was playing to help the applicant out.” The applicant’s belief that the respondent was singling him out for harsher treatment or targeting others who associated with him – whether or not shared by others – is not evidence, however. The Tribunal must have objective evidence of discrimination in order to make a finding that the Code has been violated. Nor is it open to the Tribunal to make findings based on mere assumptions.

80Even if I were prepared to find that the applicant had made out a prima facie case that he was treated worse than the other employees, the applicant’s evidence is not a complete and sufficient basis upon which to conclude that the harsher treatment was based on the applicant’s continental African origins. Bald assertions aside, the only evidence the applicant gave about the respondent’s purported mistreatment of employees from continental Africa was when he testified that four continental African employees who were working for the respondent as “temps” in the sortation department were “terminated” because they were late reporting for work after a break. The applicant gave (hearsay) evidence that employees in other departments were treated more leniently by their supervisors when they were late getting back from break. However, he did not provide any evidence that employees of other places of origin received more lenient treatment from his supervisor in similar circumstances. When asked whether the employees in other departments were late getting back from break, the applicant testified, “I wouldn’t say so but by [my supervisor’s] book, they would be late.” This was consistent with the applicant’s overall evidence to the effect that all employees, regardless of race or place of origin, were treated harshly by the supervisor in question.

81With respect to the termination of his employment, the applicant submits that his employment was terminated at a time when he was on a medical leave of absence from work. He takes the position that this was a violation of the Code. However, the Code does not prevent the respondent from terminating employees while they are on a medical leave of absence where the termination is not based on a prohibited ground under the Code.

82In this case, the applicant’s own evidence was that the respondent was informed by the WSIB that the applicant was working for another employer in a job which required prolonged standing and walking – contrary to his reported restrictions – while representing to the respondent that he was completely disabled from working. The applicant’s evidence was that he worked for the other employer on November 29, 30, December 1, 4, 5, 6, 7, and 9, 2007, on all of which dates the applicant told the respondent that he could not perform even modified sedentary duties. Not only that, he led the respondent to believe that he could not even get himself to work. He told the respondent that he was too physically disabled to drop off his Functional Abilities Form or to come in for a meeting on November 30 and December 7, 2007, respectively, Meanwhile, he worked a 12-hour shift on November 30, 2007 and a 7.75-hour shift on December 7, 2007 for another employer. When the respondent was informed of this, it would have had good reason to be suspicious. According to the termination letter the applicant received, when the applicant did not attend three meetings scheduled by the respondent to discuss the situation, the respondent terminated his employment.

83This evidence is not complete and sufficient to justify a finding that the respondent terminated the applicant’s employment on the basis of prohibited grounds under the Code. If anything, the applicant’s own evidence supports the respondent’s contention that it terminated the applicant’s employment because it concluded (not unreasonably) that the applicant had misled the respondent about his inability to work and was illegitimately absenting himself from work. It is not a violation of the Code for an employer to terminate an employee for these reasons.

84Even if the respondent elected not to call any evidence in this case, based on the case presented by the applicant, the applicant’s evidence was not a complete and sufficient basis upon which to make the factual fndings necessary in order to conclude that the respondent infringed the applicant’s rights under the Code. In these circumstances, it would not be legally correct or fair to require the respondent to call evidence in order to refute the applicant’s case.

85The applicant did not establish a prima facie case of harassment or discrimination under the Code. The Application is therefore dismissed.