minicounsel

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Piechocinski

Applicant

-and-

Toronto Standard Condominium Corporation No. 1888

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: September 27, 2010

Citation: 2010 HRTO 1966

Indexed as: Piechocinski v. Toronto Standard Condominium Corp. No. 1888

AppearanceS BY

Andrew Piechocinski, Applicant ) Self-represented

Toronto Standard Condominium ) Patricia Conway,

Corporation No. 1888, Respondent ) Counsel )

Background

[1] The applicant filed a transitional Application under section 53(3) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) alleging the respondent Toronto Standard Condominium Corporation No. 1888 (the “Condominium Corporation”) discriminated against him because of injuries that he experienced in the workplace.

[2] The hearing was conducted on June 21, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications be heard in a highly expeditious manner. The applicant testified on his own behalf. He did not call any other witnesses in support of his Application. The respondent called three witnesses: Robert Knowlton, Patricia Stalteri and Kamila Jedlewska.

[3] The evidence was concluded on June 21, 2010 and the parties agreed to provide their final argument in writing by July 20, 2010. The respondent’s written submissions were received by the Tribunal on July 15, 2010. No written submissions were received by the applicant.

Decision

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

Background

[5] On September 22, 2007, the applicant was interviewed for the position of Building Superintendent for the Condominium Corporation by Patricia Stalteri, the principal of the property manager of the building. During the interview, the applicant advised Ms. Stalteri that he had had an accident with his previous employer and had been off work. The applicant told Ms. Stalteri that he had slipped and fallen in an elevator and had injured his knee. The applicant claims he informed Ms. Stalteri that he had received benefits for this injury from the Workplace Safety and Insurance Board (“WSIB”).

[6] The applicant met with Ms. Stalteri on September 29, 2007 to review the terms of the employment agreement and the job description. The employment agreement included a term that the applicant’s employment could be terminated because of illness, disability or handicap as defined in the Code. This term of the employment agreement was subsequently removed by the Condominium Corporation.

[7] On October 1, 2007, the applicant sent an e-mail to Ms. Stalteri advising her that the job description and the employment agreement would have to be revised because of the size of the building and the work conditions.

[8] On October 3, 2007, the applicant provided extensive notes on the job description and the employment agreement to Ms. Stalteri. The applicant wanted the cleaning duties removed from the job description. In the detailed notes provided by the applicant, he did not raise any concerns about his previous injury and his ability to perform the cleaning duties.

[9] The applicant commenced employment with the Condominium Corporation on October 9, 2007.

[10] On October 12, 2007, the applicant provided further feedback on the job description and employment agreement. The applicant remained concerned about the inclusion of cleaning duties in the job description. The applicant outlined the nature of his concerns which included being responsible for cleaning underground elevators, underground parking and the removal of garbage. Again, the applicant did not relate his concerns to any previous injury. The Condominium Corporation believed the applicant’s objection had to do with the fact that he did not think the position should involve cleaning and not because of any physical restrictions.

[11] The job description was then revised by the Condominium Corporation. Under the revised job description, the Building Superintendent was responsible for assisting with the cleaning duties described above rather than bearing the sole responsibility. The primary responsibility for cleaning was assigned to the Assistant Superintendent.

[12] The applicant never signed an employment agreement with the Condominium Corporation.

[13] The applicant alleges that on December 14, 2007, he fell into the whirlpool at the workplace and injured his left knee. The applicant did not complete a WSIB claim form and did not seek medical attention.

[14] The applicant alleges further that he experienced a second injury at the workplace on January 15, 2008. He alleges that he slipped on a piece of wood and his left leg struck the floor. The applicant concedes that it was not a terrible accident: he could walk, but had pain.

[15] The applicant’s employment was terminated on January 16, 2008. He believes his workplace injuries were a factor in the Condominium Corporation’s decision to terminate his employment.

[16] The Condominium denies knowledge of the alleged injuries on December 14, 2007 and January 15, 2008.

December 14, 2007

[17] The applicant alleges that he fell into the whirlpool on December 14, 2007 and struck his left knee. He states he was in shock after it happened and had pain in his left knee. He stayed in the swimming pool to dry and then went to the workshop to change his clothes. The applicant states further that he went to the management office and told Ms. Jedlewska, the property manager’s on-site representative, about the incident. He did not ask to fill out a WSIB form. He claims he later reported the incident on a Pool and Whirlpool Log form and provided it, together with an Occurrence Report, to the office by slipping it under the door.

[18] Ms. Jedlewska was the liaison between staff and the head office of the property manager. Ms. Jedlewska testified that the applicant came to her on a daily basis to report any problems in the building. She said that she and the applicant got along well together and shared a common heritage. Ms. Jedlewska described the standard procedure that she followed when problems occurred in the building. She testified that when problems were reported, written reports were prepared which were date-stamped and initialled by her to confirm receipt. Ms. Jedlewska was responsible for following up on all reports.

[19] Ms. Jedlewska testified that she never saw the Pool and Whirlpool Log form or the Occurrence Report completed by the applicant. Neither report is date-stamped or initialled by her. She stated the incident was serious and because of that, she would have followed up with Ms. Stalteri. She would have investigated the incident by going to the concierge to see if they saw anything, would have physically gone to the site of the incident and would have checked the monitors and surveillance cameras.

[20] The Condominium Corporation denies that they were told of the December 14, 2007 incident or the alleged injury prior to the termination of the applicant’s employment. I must decide whether the Condominium had knowledge of the December 14, 2007 incident. If it did not have knowledge of the incident, the injury and possible WSIB claim could not have been a factor in the decision to terminate the applicant’s employment.

[21] I find the Condominium Corporation did not have knowledge of the December 14, 2007 incident for the following reasons.

[22] The applicant was very familiar with the process for filing a WSIB claim. Prior to commencing his employment, he had received WSIB benefits because of a previous injury with another employer. The incident in the whirlpool was significant and would have justified completion of the WSIB form. Yet the applicant concedes he did not ask to complete such a form. Had the incident occurred as described by the applicant, I find he would have completed the WSIB claim form.

[23] Secondly, it is illogical that the applicant would complete a Pool and Whirlpool Log, a form designed to record regular pool maintenance, to report such an incident. The Pool and Whirlpool Log filed into evidence is the original form. Had the applicant provided this form to the employer, he would have submitted the original form. The original form would not still be in his possession.

[24] Thirdly, when the applicant did complete the WSIB claim form on January 16, 2008, he did not report the whirlpool incident. While I have grave doubts as to whether the whirlpool incident occurred as the applicant testified, I find that he did not report the incident/injury to the Condominium Corporation. It may well be that the incident was much more minor in nature and not worth reporting. For the purposes of this decision, the only relevant issue before me is whether the employer knew of the incident/injury and a possible WSIB claim. I find that it did not.

January 15, 2008

[25] The applicant states that on January 15, 2008, he was walking through the lobby when he was asked by the concierge to drop a box off in the recycling room. While carrying the box on the stairs, the applicant slipped on the last stair hitting his left leg. He testified it was not a terrible accident: he could walk, but had pain. The applicant reported this injury to the concierge and asked him to report it to his supervisor.

[26] The applicant filed into evidence a Daily Report form reporting this injury. The reported is dated January 15, 2008. The Daily Report form has two copies: the white copy, which is the client copy, and the yellow copy, which is the Garda copy, the concierge/security company. The applicant had both copies of the form with him at the hearing. If both copies were in the applicant’s possession, the form could not have been provided to the concierge or in turn, to the employer, assuming providing notice to the security company constitutes notice to the employer.

[27] On the basis of this evidence, I find the applicant did not report this injury to the Condominium Corporation and as such, the injury did not factor into its decision to terminate the employer.

[28] Further support for this finding can be found in the Application where the applicant concedes that there was no opportunity to tell the Condominium Corporation about his injury on January 15, 2008 prior to his termination on January 16, 2008.

[29] To make out his claim of discrimination, the applicant must establish that the Condominium Corporation was aware of the injuries on December 14, 2007 and January 15, 2008 and that these injuries were a factor in the decision to terminate his employment. The applicant has failed to establish such knowledge on the part of this employer. If the Condominium Corporation had no knowledge of the injuries, they could not have been a factor in the decision to terminate the applicant’s employment.

[30] Before leaving this decision, I must comment on one aspect of the complaint that has not been addressed. In his Application, the applicant alleges that he was given physical work by the Condominium Corporation that worsened his previous injury. I do not accept this allegation for the following reasons.

[32] Even if the applicant had communicated such restrictions, the alleged incidents on December 14 and January 15 did not occur in the context of performing physically demanding work. The first injury occurred when he was performing routine maintenance on the whirlpool. The second alleged injury occurred when he was carrying a cardboard box down the stairs. The applicant cannot make generalized allegations of workplace restrictions in the hope that they will influence his claim of discrimination. In this case, the applicant claims that the injuries on December 14 and January 15 were relied upon by the Condominium Corporation when it made its decision to terminate his employment. He has not established this claim.

[33] The applicant has failed to establish a prima facie case of discrimination. It is therefore not necessary to examine the response of the Condominium Corporation as to why it terminated his employment.

Order

[34] This Application is dismissed.

Dated at Toronto the 27^th day of September, 2010.

“Signed by”

Jennifer Scott

Vice-chair

Andrew Piechocinski v. Toronto Standard Condominium Corporation No. 1888, 2010 HRTO 1966

Case Summary

[3] The evidence was concluded on June 21, 2010 and the parties agreed to provide their final argument in writing by July 20, 2010. The respondent’s written submissions were received by the Tribunal on July 15, 2010. No written submissions were received by the applicant.

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

[7] On October 1, 2007, the applicant sent an e-mail to Ms. Stalteri advising her that the job description and the employment agreement would have to be revised because of the size of the building and the work conditions.

[9] The applicant commenced employment with the Condominium Corporation on October 9, 2007.

[12] The applicant never signed an employment agreement with the Condominium Corporation.

[13] The applicant alleges that on December 14, 2007, he fell into the whirlpool at the workplace and injured his left knee. The applicant did not complete a WSIB claim form and did not seek medical attention.

[14] The applicant alleges further that he experienced a second injury at the workplace on January 15, 2008. He alleges that he slipped on a piece of wood and his left leg struck the floor. The applicant concedes that it was not a terrible accident: he could walk, but had pain.

[15] The applicant’s employment was terminated on January 16, 2008. He believes his workplace injuries were a factor in the Condominium Corporation’s decision to terminate his employment.

[16] The Condominium denies knowledge of the alleged injuries on December 14, 2007 and January 15, 2008.

[21] I find the Condominium Corporation did not have knowledge of the December 14, 2007 incident for the following reasons.

[27] On the basis of this evidence, I find the applicant did not report this injury to the Condominium Corporation and as such, the injury did not factor into its decision to terminate the employer.

[28] Further support for this finding can be found in the Application where the applicant concedes that there was no opportunity to tell the Condominium Corporation about his injury on January 15, 2008 prior to his termination on January 16, 2008.

[33] The applicant has failed to establish a prima facie case of discrimination. It is therefore not necessary to examine the response of the Condominium Corporation as to why it terminated his employment.

[34] This Application is dismissed.

Andrew Piechocinski v. Toronto Standard Condominium Corporation No. 1888, 2010 HRTO 1966

Case Summary

[3] The evidence was concluded on June 21, 2010 and the parties agreed to provide their final argument in writing by July 20, 2010. The respondent’s written submissions were received by the Tribunal on July 15, 2010. No written submissions were received by the applicant.

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

[7] On October 1, 2007, the applicant sent an e-mail to Ms. Stalteri advising her that the job description and the employment agreement would have to be revised because of the size of the building and the work conditions.

[9] The applicant commenced employment with the Condominium Corporation on October 9, 2007.

[12] The applicant never signed an employment agreement with the Condominium Corporation.

[13] The applicant alleges that on December 14, 2007, he fell into the whirlpool at the workplace and injured his left knee. The applicant did not complete a WSIB claim form and did not seek medical attention.

[14] The applicant alleges further that he experienced a second injury at the workplace on January 15, 2008. He alleges that he slipped on a piece of wood and his left leg struck the floor. The applicant concedes that it was not a terrible accident: he could walk, but had pain.

[15] The applicant’s employment was terminated on January 16, 2008. He believes his workplace injuries were a factor in the Condominium Corporation’s decision to terminate his employment.

[16] The Condominium denies knowledge of the alleged injuries on December 14, 2007 and January 15, 2008.

[21] I find the Condominium Corporation did not have knowledge of the December 14, 2007 incident for the following reasons.

[27] On the basis of this evidence, I find the applicant did not report this injury to the Condominium Corporation and as such, the injury did not factor into its decision to terminate the employer.

[28] Further support for this finding can be found in the Application where the applicant concedes that there was no opportunity to tell the Condominium Corporation about his injury on January 15, 2008 prior to his termination on January 16, 2008.

[33] The applicant has failed to establish a prima facie case of discrimination. It is therefore not necessary to examine the response of the Condominium Corporation as to why it terminated his employment.

[34] This Application is dismissed.

[3] The evidence was concluded on June 21, 2010 and the parties agreed to provide their final argument in writing by July 20, 2010. The respondent’s written submissions were received by the Tribunal on July 15, 2010. No written submissions were received by the applicant.

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

[7] On October 1, 2007, the applicant sent an e-mail to Ms. Stalteri advising her that the job description and the employment agreement would have to be revised because of the size of the building and the work conditions.

[9] The applicant commenced employment with the Condominium Corporation on October 9, 2007.

[12] The applicant never signed an employment agreement with the Condominium Corporation.

[13] The applicant alleges that on December 14, 2007, he fell into the whirlpool at the workplace and injured his left knee. The applicant did not complete a WSIB claim form and did not seek medical attention.

[14] The applicant alleges further that he experienced a second injury at the workplace on January 15, 2008. He alleges that he slipped on a piece of wood and his left leg struck the floor. The applicant concedes that it was not a terrible accident: he could walk, but had pain.

[15] The applicant’s employment was terminated on January 16, 2008. He believes his workplace injuries were a factor in the Condominium Corporation’s decision to terminate his employment.

[16] The Condominium denies knowledge of the alleged injuries on December 14, 2007 and January 15, 2008.

[21] I find the Condominium Corporation did not have knowledge of the December 14, 2007 incident for the following reasons.

[27] On the basis of this evidence, I find the applicant did not report this injury to the Condominium Corporation and as such, the injury did not factor into its decision to terminate the employer.

[28] Further support for this finding can be found in the Application where the applicant concedes that there was no opportunity to tell the Condominium Corporation about his injury on January 15, 2008 prior to his termination on January 16, 2008.

[31] The applicant provided extensive notes on the job description on numerous occasions when negotiating his employment agreement. There is no indication on these notes regarding any workplace-related restrictions.

[33] The applicant has failed to establish a prima facie case of discrimination. It is therefore not necessary to examine the response of the Condominium Corporation as to why it terminated his employment.

[34] This Application is dismissed.

[3] The evidence was concluded on June 21, 2010 and the parties agreed to provide their final argument in writing by July 20, 2010. The respondent’s written submissions were received by the Tribunal on July 15, 2010. No written submissions were received by the applicant.

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

[7] On October 1, 2007, the applicant sent an e-mail to Ms. Stalteri advising her that the job description and the employment agreement would have to be revised because of the size of the building and the work conditions.

[9] The applicant commenced employment with the Condominium Corporation on October 9, 2007.

[12] The applicant never signed an employment agreement with the Condominium Corporation.

[13] The applicant alleges that on December 14, 2007, he fell into the whirlpool at the workplace and injured his left knee. The applicant did not complete a WSIB claim form and did not seek medical attention.

[14] The applicant alleges further that he experienced a second injury at the workplace on January 15, 2008. He alleges that he slipped on a piece of wood and his left leg struck the floor. The applicant concedes that it was not a terrible accident: he could walk, but had pain.

[15] The applicant’s employment was terminated on January 16, 2008. He believes his workplace injuries were a factor in the Condominium Corporation’s decision to terminate his employment.

[16] The Condominium denies knowledge of the alleged injuries on December 14, 2007 and January 15, 2008.

[21] I find the Condominium Corporation did not have knowledge of the December 14, 2007 incident for the following reasons.

[27] On the basis of this evidence, I find the applicant did not report this injury to the Condominium Corporation and as such, the injury did not factor into its decision to terminate the employer.

[28] Further support for this finding can be found in the Application where the applicant concedes that there was no opportunity to tell the Condominium Corporation about his injury on January 15, 2008 prior to his termination on January 16, 2008.

[31] The applicant provided extensive notes on the job description on numerous occasions when negotiating his employment agreement. There is no indication on these notes regarding any workplace-related restrictions.

[33] The applicant has failed to establish a prima facie case of discrimination. It is therefore not necessary to examine the response of the Condominium Corporation as to why it terminated his employment.

[34] This Application is dismissed.