Daginawala v. SCM Supply Chain Management Inc., 2010 HRTO 205

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mustafa Daginawala

Applicant

-and-

SCM Supply Chain Management Inc., Andrew Cyfko,

Mike Singh and Arthur Smith

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: January 28, 2010

Citation: 2010 HRTO 205

Indexed as: Daginawala v. SCM Supply Chain Management

APPEARANCES BY

Mustafa Daginawala, Applicant ) On his own behalf

SCM Supply Chain Management Inc. ) Arthur Ashenhurst, Counsel

Andrew Cyfko, Mike Singh )

and Arthur Smith, Respondents )

1This Application was filed on June 24, 2009 under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). A hearing was held on December 14, 2009. The applicant testified and the respondent relied upon the documentary evidence filed. At the end of the hearing the parties were given an opportunity to file further evidence and make further submissions on the issue of religious leave.

2The applicant self-identified as a person of East Indian origin and a practitioner of the Islamic faith. The applicant was employed with the corporate respondent since 1994 as a Team Member in the Receiving Department. At the time of the complaint he had been working as a battery changer/utility for about two years. His duties included changing batteries for Material Handling Equipment (MHE), operating MHE, operating a floor-scrubbing machine, performing janitorial work and other work as assigned.

MISCELLANEOUS ALLEGATIONS

3In March 2006 the applicant filed a complaint with the Ontario Human Rights Commission alleging discrimination on the basis of race, colour, ethnic origin, place of origin and creed. In the complaint he states that on February 7, 2006 he was given a final warning at work for dropping a battery. He was called to an interview for a position as engineer and not provided with appropriate guidance to prepare for the interview. He alleges that after a year he is still doing menial tasks. He asserts that the respondent did not offer him overtime fairly. He complained about the smell emanating from his area at work and a dangerously slippery floor and claimed he was forced to work in an unsafe work environment. When he left work early because of an eye infection, the respondent asked him to bring him a medical report. His request for six weeks vacation in 2003 was refused. The respondents overworked him and criticized his work performance unfairly.

4At the hearing I took the applicant through the above allegations and asked him to explain why he thought these matters were related to race or religion. He was unable to make any connection. In my view, the applicant has not established on a balance of probabilities that the above incidents amount to discrimination contrary to the Code.

RELIGIOUS LEAVE

5The only Code-related reference in the twenty-two paragraph complaint is an assertion that on an unspecified date the respondent failed to give him 3 to 4 hours leave for Eid prayer, although he gave 72 hours notice. The applicant testified that he had often requested time off for religious leave and it had always been granted.

6At the hearing, the respondent was unable to respond to this allegation as the applicant was unable to give any particulars about the date and time.

7Following the hearing, the applicant submitted a request for leave dated October 30, 2005 for four hours unpaid leave on November 2, 2005 to attend an Eid prayer meeting marking the end of the holy month of Ramadan. The note indicates that the request for leave was denied on the basis that the notice provided was too short.

8The respondents point to the fact that the applicant had been accommodated on all other occasions when he had given sufficient notice. They submitted a request for leave form granting leave on October 25, 2009, as the applicant had first made known this request on October 19, 2005.

9In these circumstances, I am satisfied that the respondents had a practice of granting leave for religious attendance when sufficient advance notice was given and that the only reason for the refusal of the November 2, 2005 request was due to insufficient time to permit the respondent to schedule a replacement.

10In these circumstances, I find that there was no breach of the Code in respect of this single incident.

TERMINATION

11On July 4, 2006 the applicant’s employment was terminated. The applicant asserts that the termination was a form of reprisal because he had filed the human rights complaint in March 2006. The respondents assert that the applicant’s employment was terminated because he was a party to a workplace accident (dropping a battery) and altered the scene of that accident. They also asserted that this aspect of the Application should be dismissed under section 45.1 of the Code.

12Both parties treated the termination as part of the subject matter of the present Application.

13The applicant brought an application under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 as amended, (“OHSA”) alleging that the respondent contravened section 50(1) of the OHSA by terminating employment on July 4, 2006 for raising occupational health and safety issues. He also applied for termination pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 as amended. By decision dated February 1, 2007 the Ontario Labour Relations Board (the “Board”) dismissed the application under the OHSA on the basis that the applicant had failed to make any connection between attempting to enforce his rights under the OHSA and his subsequent termination.

14By decision dated February 16, 2007 an Employment Standards Officer (“Officer”) issued a written decision denying the applicant his claim for termination pay and severance pay. The issue before the Officer was whether the applicant was not entitled to the claimed payments because he is guilty of misconduct, neglect of duty or disobedience.

15The Officer conducted a fact finding meeting and the applicant and the corporate respondent attended. The corporate respondent submitted their evidence that the battery incident on February 7, 2006 was due to an error on the applicant’s part and that the applicant attempted to cover it up. The employer submitted video surveillance to establish the misconduct. The officer concluded that on a balance of probabilities the applicant had been dismissed for misconduct.

REQUEST TO DISMISS UNDER SECTION 45.1

16Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

17The issue for this Tribunal is whether another proceeding has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

18It is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. With regard to the second issue, the Tribunal may consider whether the application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.

19I find that the hearing process of the Employment Standards Officer and the Ontario Labour Relations Board are proceedings within the meaning of section 45.1.

20The issue before the Board was whether the applicant’s employment had been terminated for raising health and safety issues. The Board concluded he had not. However, that determination is not relevant to any issues of discrimination raised in the Application.

21The Officer concluded that the applicant had engaged in misconduct such as to disentitle him to benefits under the ESA. While this is not the identical issue raised by the complaint, it is substantially the same issue raised by the applicant in the human rights Application. The respondents to the human rights Application made the same response to the Board, that the applicant was terminated for misconduct.

22The Officer heard the applicant’s evidence and reviewed the documentation submitted by both parties. The Officer concluded that the applicant engaged in misconduct and that was the reason for the termination.

23Accordingly, I conclude that the applicant cannot challenge the misconduct aspect of the termination in the human rights Application.

24However, it was open to him to try to establish that notwithstanding the established misconduct, a prohibited ground of discrimination played a role in the decision to dismiss him.

25The applicant did not bring forward any evidence that a prohibited ground was a factor in the dismissal, or that other employees who engaged in similar misconduct were treated more leniently.

REPRISAL

26I find that given the proven allegations of misconduct, the applicant has not established that the termination was influenced, even in part, by the filing of the earlier human rights complaint.

27The Application is dismissed.