HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Azam Ahmed
Applicant
-and-
VPI Inc. and Frank Kelly
Respondents
DECISION
Adjudicator: Judith Hinchman
Indexed as: Ahmed v. VPI
APPEARANCES BY
)
Azam Ahmed, Applicant ) Mary Selvanathan, Counsel
)
VPI Inc., Frank Kelly, ) J. Curtis McDonnell, Counsel
Respondents ) )
ii
INTRODUCTION
1This is an Application dated January 30, 2009 made 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 in June 2006 (the “Complaint”) and abandoned upon filing this Application with the Tribunal. A hearing on this matter was conducted on April 28, 2010.
2The applicant alleges the respondents discriminated against him in employment on the basis of race and ethnic origin.
BACKGROUND
3The corporate respondent, Vocational Pathways Inc. (“VPI”), provides employment services to new immigrants. Pursuant to a contract awarded to VPI by Service Canada to provide these services, VPI opened several new offices. In March 2005, the applicant began employment with the corporate respondent as an Assessor/Case Manager at one of these new locations, the Albion Road office in Etobicoke. Shortly thereafter, the personal respondent, Mr. Kelly, became the Program Coordinator and Office Manager for two VPI locations including the Albion Road office.
4The parties agree that they had several discussions concerning the applicant’s performance, including late arrivals and keeping files up to date. The parties do not agree that these were necessarily warranted.
5The personal respondent delivered a Written Warning for Tardiness by letter dated December 22, 2005. The applicant went on vacation for three weeks in early February 2006. After his return on March 3, 2006, the applicant’s employment was terminated without cause.
ISSUES
6The issues in this matter are:
Was the applicant discriminated against on the basis of his race or ethnic origin?
Was the respondents’ duty to investigate the applicant’s complaints of discrimination triggered and did they fail to do so?
Did the respondents terminate the applicant’s employment on the basis of his race or ethnic origin?
If discrimination occurred, what is the appropriate remedy?
ANALYSIS AND FINDINGS
7Section 5 of the Code provides that:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
8Section 9 of the Code provides:
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
9Under the Code, section 10, “harassment” is defined as:
…engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
Was the applicant discriminated against due to his race or ethnic origin?
Applicant’s evidence
10The applicant self-identifies as of Pakistani ethnic origin practicing the Muslim faith. He asserts that this is a case of reverse discrimination in that the personal respondent is a “Black Canadian” who “granted favors to his ‘Black’ staff and others (of his inner circle).”
11The applicant’s allegations with respect to the personal respondent fall into three categories: (1) he was psychologically abused and treated unprofessionally; (2) favors were granted to an inner circle and its members were also exempted from requirements to be at work on time or to handle client intake in specific ways that were demanded of the applicant; and (3) he was denied certain opportunities he requested.
12The applicant testified that there was always friction between him and the personal respondent. The applicant alleges the personal respondent used foul language (especially the “F” word) and yelled at him in front of clients and colleagues. Under cross-examination, the applicant conceded that he could not recall the details of the conversations in which he alleges the personal respondent said the “F” word to him, and stated that it was not a habit.
13The applicant describes the personal respondent’s facial expressions and tone of voice towards him as nasty, mean, and uncivilized. Once the personal respondent allegedly “swarmed” into his office and shouted at him and demanded to know why he was not doing client intakes. He also alleges the personal respondent routinely called him into his office to reprimand him for the slightest imperfections in his work as well as for his appearance including once when his tie was loose and once when he wore a turtleneck. The personal respondent allegedly asked irrelevant questions, never provided constructive feedback, often changed the intake rules for the applicant to follow and was unresponsive to his questions. The applicant testified that others in the office overheard the personal respondent speaking to the applicant and asked him what was going on.
14In addition the applicant alleges he was not given a computer or personal security when posted at an external office (LAMP) and that the personal respondent falsely accused him of making personal calls on company time. The personal respondent denied his request to come to work one hour late each day during Ramadan. However, under cross-examination the applicant conceded that during Ramadan he was permitted to come to work at 9:30 rather than 8:30.
15Finally the applicant alleges the personal respondent “made it difficult” when he asked for a three-week vacation during February and he had to “side step” him to seek permission from Odessa Olinares who worked in HR. When pressed, however, the applicant testified that the personal respondent has said his request was “probably” not possible. He could not recall how he communicated his request to Ms. Olinares, whether by email or telephone and conceded that, given his service to date, he was not yet entitled to a two-week vacation. He agreed his request was effectively for an additional two weeks vacation above his entitlement. The applicant was shown and did not dispute documents confirming he had made eight requests for personal leave, including the three-week vacation, which were approved by the personal respondent.
16The applicant also alleges that two days prior to his vacation, the personal respondent phoned him stating that he was “damn mad” because of incomplete work. This necessitated the applicant driving back to work and staying in the office until 8:00 p.m. The applicant testified that he felt this amounted to the personal respondent “putting conditions” on the vacation.
17However, under cross-examination the applicant testified that the personal respondent and others often stayed at work late. He also stated that he was responsible for approximately 100 files and that during his vacation he knew these would have to be looked after by other case managers. He agreed the request that his files and computer contact entries be up to date would be a normal and “fair” expectation of an employee going on vacation. The applicant also agreed that the contract with Service Canada required up to date recording for which case managers were responsible. Finally he agreed that, if during his vacation, the personal respondent learned that files were missing or not up to date that would be a cause for concern. However he noted that if the personal respondent wanted to reach him while on vacation he had his cell phone number.
18The applicant also claims he was treated differently than other case managers who were in an inner circle favored by Mr. Kelly in the following instances:
Once Mr. Kelly exempted one of “his special people” from doing phone coverage when it was mandatory for others so as to relieve the Admin person for her lunch break.
Mr. Kelly nominated the applicant as the Health and Security Officer, yet sent another case manager for the necessary training.
Other case managers were sent to Ottawa for a three-day seminar, when the applicant’s request for training to deal with special-needs clients at LAMP was denied.
Mr. Kelly complained about the applicant’s arrival time, yet other case managers came in late and Mr. Kelly did not complain, as well those of the inner circle left early on Friday after taking a lunch break longer than permitted.
He was singled out for reprimands concerning his office organization.
19At the hearing the applicant conceded that getting to work on time was an issue a few times and that he does recall the personal respondent discussing it with him at two meetings. He also agreed that coming to work on time was important given the nature of the job. Under cross-examination the applicant also admitted that he did not know whether or not the personal respondent discussed work performance issues with other case managers.
20The applicant also alleges that he sought and was denied certain opportunities. First, the applicant volunteered to be the contact person for Service Canada. Second, when VPI opened a permanent location to replace the temporary set-up at LAMP, the applicant asked to be posted there. Third, his offers to conduct outreach were rebuffed.
21Finally, the applicant alleges that he complained about the personal respondent’s actions to the VPI human resources department and received no response. At the hearing, the applicant clarified that while employed he did not speak to anyone about his concerns. The parties agree that after his termination he sent one email to Ms. Olinares in HR. In that email the applicant wrote that the personal respondent’s treatment of him was harsh, demeaning, and unprofessional. He does not complain however that he was treated this way because of his race or ethnic origin. In fact he begins the email by explaining that he believes the ill treatment was “due in a large part to [his] friendship with a Case Manager who Frank did not approve of.” So “as such, [he] became guilty by association.”
22Without explanation, the applicant closed the email stating that he neither wanted to pursue employment with VPI again nor did he want to “approach [the] Human Rights Commission.” He requested that he not receive any negative references if prospective employers contacted VPI. Also in the email the applicant claims to have spoken to someone named Elio about his concerns, but had asked Elio not to take action. The applicant has provided no additional information about Elio and did not call him as a witness.
23Under cross-examination the applicant stated that it was open to him to have spoken to the General Manager Mr. Barbosa, who had hired him. He stated that while in the past he had spoken to him about work-related matters, Mr. Barbosa was seldom on location and the applicant assumed he would not be sympathetic.
Respondent’s evidence
24The respondents maintain that the applicant’s work performance began as adequate at best, and deteriorated during the last five months of his employment. Their evidence is that he was habitually late for work and was continually behind on his filing and completing other documentation respecting his clients, which included entering data into the VPI computer system. There were no assistants or secretaries on staff to do this work. Accurate and timely information recording was required by the contract with Service Canada as it was with other sponsors, thus these were considered essential tasks. The personal respondent testified that Service Canada and other sponsors from time to time “audited” the work done for them at VPI. Because the sponsors had an arrangement whereby they could access the computer files, these especially needed to be kept up to date.
25The personal respondent met with the applicant on several occasions to discuss his concerns and coached and encouraged the applicant repeatedly to improve his record keeping and file management as well as to discuss strategies to arrive on time. When he felt the applicant was not improving, he decided that he needed to record his concerns. These notes were submitted. The personal respondent does not recall ever swarming into the applicant’s office and denies that he shouted at him regarding his work.
26The personal respondent felt that he was supportive of the applicant in that he arranged a staff party to celebrate the applicant’s Canadian citizenship, granted the extra weeks to the applicant for his vacation, granted the applicant’s request to arrive at work late each day during Ramadan, and offered several times to have other staff assist the applicant in improving his filing and documentation skills.
27He denied that he called the applicant into his office as frequently as alleged and denies that he spoke the “F” word, testifying that he did not swear at the office or otherwise. He also testified that he met with all the case managers on a regular basis to review their work and offer suggestions and that he treated the applicant no differently. On cross-examination the personal respondent said that he maintained an open-door policy, however he did admit that he would meet the case managers behind closed doors to maintain confidentiality when discussing private matters such as their performance.
28With respect to the dress code, the respondents submit that there is a dress code requiring shirt and tie and that on a few occasions the personal respondent asked the applicant to straighten his tie for a professional appearance.
29The respondents submit that all staff knew there was no computer at the LAMP site and there had been no concerns expressed about personal safety at that site. Although the respondents agree that the applicant expressed interest in working at a permanent location VPI opened to replace LAMP, they felt that his performance issues showed that he was not a suitable candidate to work at a location not staffed with a supervisor. For that same reason he was not considered suitable to be the contact person for the Service Canada contract.
30With respect to outreach, Mr. Kelly testified that all case managers were encouraged to conduct outreach within certain parameters. These included generally staying within the catchment area and asking service providers to present at the offices to case manager teams. These were budgetary and efficiency considerations and the applicant was expected to adhere to these considerations no differently than others. He would have only been deterred from acting beyond these parameters.
31The respondents also agree that the applicant was appointed to the Health and Safety Committee as fire warden. This position required no training. Others on the committee in different roles were sent for CPR training locally but not to Ottawa as the applicant contends. Moreover, no one from the offices supervised by the personal respondent was sent to Ottawa for training.
32Respecting the allegation regarding personal phone calls, the respondents submit that VPI does not prohibit brief personal calls. The personal respondent denies that he spoke to the applicant about personal calls. He testified that once when a client was waiting for approximately fifteen minutes, he went to find the applicant and observed that he was on a call that appeared personal. He submits that he did not comment on the call but merely signaled to the applicant that a client was waiting.
33The respondents submit that the applicant’s tardiness was extraordinary in frequency and the length of tardiness when compared to other employees.
34With respect to the intake rules, the respondents submit that the case managers were instructed to exercise discretion in that some refugee clients would not always have with them all necessary documents. If the particular client lived close by, the practice was to send them home for those documents. If not, then the instruction was to proceed with the appointment and receive the paperwork at the next appointment. The respondents expected the case managers to use discretion in applying this flexible policy.
35With respect to the February three-week vacation request, as he understood the applicant was traveling to Pakistan to visit his mother, the personal respondent testified that he was inclined to grant the time to the applicant. While he would not normally approve such an extraordinary request he knew that traveling such a distance would require several days transit time, so he discussed the request with Mr. Barbosa and then subsequently approved it.
36With respect to the circumstances just prior to the February vacation, the personal respondent agrees that he asked the applicant to update his files and complete paperwork prior to his departure. He asked that the applicant stay late to do so. This was because during the applicant’s vacation any of the applicant’s 100 or so clients might contact VPI for information on the status of their files and case managers covering these files needed to be able to find that information to respond in timely fashion. The personal respondent also testified that at least one week prior to the vacation the applicant had given his word that the office work would be brought up to date.
37The personal respondent’s evidence is that when the applicant was on vacation, a number of the applicant’s clients did contact VPI about the status of their cases and substitute staff could not find the necessary information on the computer nor could they find some of the paper files. In addition a number of errors were discovered, applications were not entered into the computer database, and the respondents maintain that files were generally found in disorganized locations within the applicant’s office. Contrary to the applicant’s assertion, the applicant had not given the personal respondent any contact numbers where he could be reached while on vacation.
38The personal respondent felt that the applicant had not fulfilled his promise before his vacation and determined that, given the other performance issues, the applicant was not pulling his weight and was becoming a burden to other case managers. He contacted Mr. Barbosa to discuss possible employment termination and Mr. Barbosa approved the action. He had followed the corporate policy in this regard, met with the applicant on several occasions and had issued a warning letter regarding the many late arrivals.
Analysis
39Assessing credibility involves the consideration of a variety of factors. The Tribunal has applied the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard. In addition, the court stated:
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
40Other factors the Tribunal has applied as relevant factors in assessing credibility include corroborative evidence from other witnesses, and the extent to which witnesses may have an interest in the outcome of the case, or have self-interest in testifying for one of the parties: see Shah v. George Brown College, 2009 HRTO 920. Also, in determining whether a party has met its burden of proof, the failure to call a witness who has material and direct knowledge of the disputed facts may allow the Tribunal to draw an adverse inference that the party did not call a particular witness because the witness would not have been supportive to that party’s case. Shah, supra.
41The personal respondent was a credible witness whose explanations of his judgment of the applicant’s work performance were corroborated by notes made contemporaneous with the employment. As well, his explanations of the job requirements to maintain up to date files and arrive on time for appointments in the context of the type of work that VPI conducts make sense.
42On the other hand, the applicant’s testimony wavered often on cross-examination and he often contradicted his earlier testimony. For example, under cross-examination the applicant admitted that his request for a late arrival time during Ramadan was granted. This was consistent with the respondents’ evidence and thus there is no basis for this allegation.
43Similarly, the applicant conceded that being asked to stay late to have his files up to date prior to his vacation was not unreasonable, that others often stayed late, and that if his files were not in order that would be a reason to be concerned. The personal respondent’s request seems entirely reasonable in the circumstances and thus I am not satisfied that this is an example of differential treatment based on race or ethnic origin.
44Furthermore, there is no evidence to support that the applicant’s race or ethnicity was a factor in the initial reaction to the vacation request. It is clear from the evidence that this was a request for an additional two weeks beyond the applicant’s entitlement. The personal respondent was believable when he testified that given the purpose of the applicant’s vacation and distance required to travel there he nonetheless wanted to grant the vacation request but needed to consult with his supervisor. The vacation request was signed and approved. I am unable to find that these circumstances amount to discriminatory behavior towards the applicant.
45The applicant was also unable to testify specifically regarding his allegations that the personal respondent swore at him and at the hearing downplayed this allegation. He also did not describe with any more particularly his accusation that the personal respondent had “swarmed” into his office and shouted at him. Even if the personal respondent did raise his voice in a demanding tone I am not persuaded that that is evidence of discrimination as opposed to frustration at the applicant’s work performance, which in the context of all the evidence regarding work performance makes more sense.
46In any event, the personal respondent was a credible witness when he denied swearing or shouting at the applicant either in private meetings regarding work performance or in front of others. I note in this connection that while the applicant contends that others spoke to him about the personal respondent’s behavior he produced no witnesses. I find that the evidence does not support on a balance of probabilities that it is more likely than not that the personal respondent swore or shouted at the applicant.
47The evidence does not support finding the personal respondent favored an inner circle. The applicant is vague about who the inner circle comprised, identifying them as “Black staff and others.” The applicant presented no evidence to substantiate the existence of this inner circle or to identify them by name. I am not persuaded there is sufficient evidence to support this allegation.
48The applicant also fails to provide sufficient evidence regarding the phone coverage allegation to persuade me that the incident occurred or that, if it did, it represents discriminatory treatment.
49Likewise there is insufficient evidence that the applicant was treated differentially with respect to intake rules, or the application of policies for dress code or personal phone calls. Rather the respondents’ evidence that managers were to apply their discretion to treating certain intake rules flexibly makes sense given the new immigrant nature of the clientele and there is no basis to conclude the dress code or phone call policies were not applied uniformly in the office.
50Finally, the applicant has provided insufficient particulars about any others who were exempted from being at the office during work hours. The respondents have given a sensible explanation for why adhering to work hours was important in that their business was client-centered and any case manager starting the day late would likely cause all appointments to back up that day. Although the respondents do not maintain that no one else ever arrived late to work, they do allege that the applicant’s record of tardiness was extraordinary. The personal respondent’s notes and the written warning both corroborate that view. On a balance of probabilities I find the applicant was not subjected to differential treatment in respect of these work-related requirements.
51The respondents have stated that no one at the LAMP location received a computer and that no security was provided to others at that site. The applicant has not offered any evidence to counter that position and therefore there is no evidence that he was treated differently when he worked from that site.
52I also am not satisfied that there is any basis to conclude that the applicant was discriminatorily denied opportunities that he requested or was due. First, regarding the training that the applicant alleges he was denied, the respondents have stated that as Fire Warden there was no training offered and that in fact no others in the applicant’s office were sent to Ottawa for special training. The applicant has not supplied any evidence to suggest otherwise and thus I find that there is no merit to this allegation.
53Similarly, given the well-documented performance issues I am persuaded that the respondents have provided a reasonable explanation for why the applicant’s offer to be the contact person for the Service Canada contract or to be the point person at the new location to replace the LAMP site was not accepted. The respondents have provided a reasonable explanation of their policy regarding outreach and again I am persuaded that the policy was applied to the applicant in the same fashion as the others.
54The personal respondent’s explanations as to why he would be concerned about record keeping were consistent with his description of the sponsor contracts and the fact that sponsors could audit the corporate respondents files from time to time. He testified persuasively that he held all case managers to this same standard and the applicant was not able to refute this evidence.
55Even accepting the applicant’s account that there may have been friction between him and the personal respondent or that the personal respondent may have complained to him about work performance issues, there is no evidence that the personal respondent’s managerial style was unique with the applicant let alone influenced by the applicant’s race or ethnicity. The Tribunal does not have the general power to inquire into claims of discrimination about every relationship or interaction, but rather only those that properly fall under grounds protected by the Code.
Was the respondents’ duty to investigate the applicant’s allegations triggered and, if so, did they fail to do so?
56By the applicant’s own admission, prior to his termination he did not complain to the corporate respondent about any alleged discrimination or harassment. This is despite the fact that the applicant indicated that on a few occasions he had spoken to the General Manager, Mr. Barbosa, about work.
57The parties do not dispute that after his termination the applicant wrote to Ms. Olinares in the HR department. A fair reading of that letter, however, does not support that the applicant complained that he faced discrimination due to his race or ethnic origin. Rather the letter, after expressing dissatisfaction with his relationship with the personal respondent and his feeling that his friendship with another case manager was the cause of the poor relationship, seems mostly to be a request for positive references. I do not find that the corporate respondent’s duty to investigate was triggered during or immediately after the applicant’s employment.
Was the applicant’s employment terminated on the basis of his race or ethnic origin?
58It is well-established in human rights law that a protected ground need only be one factor in a decision made that adversely affects an applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (S.C.C.), [1989] 1 S.C.R. 1252.
59The evidence comprising the parties’ testimony, the personal respondent’s written notes, and the warning letter clearly indicate that the respondents terminated the applicant’s employment because they were dissatisfied with his work performance. The events surrounding the applicant’s failure to properly prepare his files and cases in advance of his February vacation in particular support this conclusion. Just as I have found no basis to conclude that the respondents discriminated against the applicant during his employment, I am not persuaded that his race or ethnic origin were factors in the decision to terminate his employment.
60I have found that on a balance of probabilities the respondents did not discriminate against the applicant on any of the alleged grounds. This Application is dismissed.
Dated at Toronto, this 14th day of September, 2010.
“Signed by”
Judith Hinchman
Member