HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Godwin Ilevbare
Applicant
-and-
Domain Registry Group Inc. and Alex Gabriel
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Ilevbare v. Domain Registry Group
Appearances by
Godwin Ilevbare, Applicant ) Sharan Basran, Counsel
Domain Registry Group Inc., Respondent ) Alan Benlolo, Representative
Alex Gabriel, Respondent ) Self-represented
INTRODUCTION
1Shortly after he was fired in September 2008, the applicant, Godwin Ilevbare, filed his Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability. Specifically he alleged that he was pressured and harassed by the respondents during a sick leave, and then fired from his job shortly before he was able to return to work. The respondents disputed this, taking the position that his treatment and ultimate termination from employment was the result of the applicant’s lack of “credibility.”
2Although only six witnesses were called, the proceedings in this matter took place over four days. Much of the first day was taken up with procedural wrangling, caused, in part, by the respondents’ unwillingness to disclose their case, in contravention of the Tribunal’s Rules of Procedure.
3The respondents made a request to tape record the applicant’s evidence at the conclusion of the procedural matters, and this was allowed on similar conditions to those set out in Rocca v. Peel District School Board, 2009 HRTO 1041, at para. 8. After permission was granted to the respondents to do so, the applicant asked to also record the proceedings, and permission was granted to him on the same basis.
BACKGROUND
4The applicant was hired in September 2007 as a technical support worker with the respondent company, Domain Registry Group Inc. (“Domain”). Domain describes its business as providing customer service and technical support on behalf of domain registration companies to both individual customers and organizations. The applicant was hired for both his technical background and his ability to speak French.
5The technical support group into which the applicant was hired had five or six technical support workers and one manager. This manager, Alex Gabriel (the “personal respondent”), was the applicant’s immediate supervisor. He testified that the technical support group assists both the individual and organization clients with their computer problems with email, web services and websites. This assistance is largely done by phone, although clients also contact the technical support group via fax or email.
6There is some dispute amongst the parties about whether there were any problems with the applicant’s initial period of work, but it is common ground that he passed his probation after his third month with the company and received a $1/hour raise at that time.
7In mid-March 2008, the applicant started experiencing debilitating chest pains, for which he sought medical help. The chest pains and associated symptoms did not go away. He went to his family doctor, Dr. Daniel Toledano, on April 5, 2008, who testified that he ordered the applicant to commence an indefinite medical leave because work seemed to be a precipitating factor.
8While the doctor suspected the chest pains were a symptom of anxiety, he could not rule out physical causes, including angina and possible heart attack. The doctor was also concerned that the chest pains were occurring because the applicant’s asthma was not under control, and that possibly there were odours at work that were aggravating this underlying condition.
9The applicant experienced further chest pains and visited the emergency room at Toronto East General on April 19, 2008, at which time they treated him for possible angina. He had a follow-up visit with Dr. Toledano that day who suspected the applicant was probably suffering from a General Anxiety Disorder or Panic Disorder. In addition to ordering a number of follow-up tests to rule out physical causes, Dr. Toledano put the applicant on anti-anxiety medications (a tranquilizer and an SRI) that day.
10Dr. Toledano testified that he put the applicant on a mild dose of the SRI because it can make the person taking it feel worse when they start this particular medication. He also noted that it takes a minimum of 12 weeks before this medication becomes fully effective when treating anxiety.
11The applicant testified that through much of his leave from work he continued to experience the chest pains. He also testified that there were side-effects from the medication, including dizziness, headaches and fainting when he sat up or stood. As a result, he testified, he spent his days lying down.
12April 5, 2008, the day on which Dr. Toledano recommended that the applicant start his leave, was a Saturday. When the applicant phoned into work on Monday to advise the personal respondent of the leave, he was not there and so the applicant spoke with a co-worker. This co-worker asked him to come in because the department was short-staffed and there was no one who could handle the French calls. Although not feeling well, the applicant came into work that day.
13As it turned out, April 7, 2008, was the applicant’s last day of work for Domain. Dr. Toledano saw him on June 5, 2008, and wrote a note recommending he remain off work for an additional six to eight weeks. On a follow-up visit on August 5, 2008, Dr. Toledano wrote the following in a note: “He will hopefully return to work after 4 weeks and hopefully resume work as of September 8, 2008.” (There seems to have been an error in Dr. Toledano’s calculations as September 8, 2008, was, in fact, five weeks later.)
14The applicant did not return to work on September 8, 2008, although he testified that he was feeling well enough to attempt a return, because his employment with Domain was terminated by letter dated August 29, 2008.
15The respondents were not clear about whether they take issue with the fact that the applicant was ill during this period, but since they did little to challenge either the applicant or his doctor’s evidence on this point, I have no hesitation about making the finding that the applicant was suffering from a medical condition that falls within the definition of disability, as that term is defined in the Code, during the relevant period.
16The two issues which the parties dispute is (1) whether the applicant sufficiently communicated his needs and limitations during the period he was off work; and (2) whether the respondents terminated the applicant’s employment because he was ill, or because he required time off work due to his illness. With respect to the latter, the respondents state that they had concerns about the applicant unrelated to his disability, concerns which both pre-existed his disability-related absence and which came to light during his absence.
DECISION AND ANALYSIS
Evidentiary Issues
Credibility
17The applicant’s case consisted of his testimony, his doctor’s testimony, his doctor’s report and a number of documents. As indicated above, his doctor’s testimony was largely unchallenged by the respondents. However, the applicant was subjected to intense cross-examination by both respondents. I was left with serious concerns about the reliability, and even veracity, of his testimony.
18During cross-examination the applicant was often argumentative, to the point of evasiveness, with the respondents. This was, in part, understandable given that the respondents challenged his integrity throughout this proceeding, making wild accusations about his supposedly fraudulent conduct. It was apparent in the hearing that he was anxious to respond to all these accusations, no matter how ill-founded, which in turn appeared to compel him to provide a response even if his answer was implausible or speculative.
19By way of illustration, in an effort to prove that he had faxed in Dr. Toledano’s second and third notes to the personal respondent (the respondents contested that they had ever received the June 5, 2008 and August 5, 2008 notes), the applicant produced fax cover sheets which purported to demonstrate that he had faxed in all three notes on the days in question. However, the Bell Canada records for the phone number shown on the fax cover sheets do not have any corresponding entries for the days when these faxes were reportedly sent.
20When questioned about how he had faxed the records, the applicant said that his friend “Lawrence” had driven him to the doctor, and on the way back from the doctor’s office, they had stopped at the home of Lawrence’s friend “Francis” to fax the notes from his machine. Upon further questioning, the applicant said he was unable to find Francis’ home, and no longer able to track down his friend Lawrence. Each answer given to this inherently improbable story became more improbable.
21The respondents’ evidence consisted of the testimony of the personal respondent (who was the primary witness for the respondents), three Domain employees who testified that Domain is accommodating their health-related absences from work, and a series of documents. Although the weight given to the testimony of the three employees was in issue, their credibility was not.
22The personal respondent’s credibility, however, was very much in issue. After listening carefully to the manner in which he gave his evidence and its content, I was left with serious concerns about his truthfulness as a witness. He gave his evidence on controversial topics with assurance, but when, on cross-examination, a contradiction was pointed out to him, he would simply change his testimony to create consistency. When this was not possible, he resorted to the response that this was someone else’s responsibility. This would be an acceptable response if he had not initially testified in a manner that suggested he was fully informed and part of the decision-making process.
23Moreover, during the course of his cross-examination, applicant’s counsel pointed out a contradiction between his response under oath and the Response, the personal respondent replied that he had not read the Response “before the last hour or so” (i.e., on December 8, 2009, having commenced his testimony on October 29, 2009). The Response, which was submitted on behalf of both the personal respondent and Domain, contains information that could only have come from him. During the course of the hearing, he sat beside, and consulted with, Alan Benlolo, who represented Domain. He is clearly an intelligent and articulate individual. The assertion that he was not responsible for the information in the Response, and had not read it prior to the hearing (indeed, prior to it being submitted) is so preposterous that it seriously undermines his credibility.
24In summary, I have serious concerns about the credibility of the key witness for the applicant and the key witness for the respondents. In coming to my decision, I have only relied on their respective testimony in the following circumstances: (1) where there is convergence between their testimony; (2) where their testimony was unchallenged; or (3) where their testimony is supported by the other evidence, and is otherwise in “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.” See: Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.).
Failure to Call Witnesses
25As discussed above, the personal respondent gave testimony in areas in which he later acknowledged he had no first-hand knowledge or responsibility. The respondents did not suggest that he gave this inherently unreliable hearsay evidence out of necessity. Indeed, Alan Benlolo, the individual who was responsible for some of the key decisions concerning the applicant, was present throughout the proceedings. He indicated at the outset of the hearing that he might testify, but ultimately chose not to. Where appropriate, I have drawn adverse inferences from the failure of Domain to call its best evidence.
The Prima Facie Case of Discrimination
26As noted above, it does not appear to be disputed that the applicant’s medical condition is a disability within the meaning of the Code. The only issue is whether his disability was a factor in the respondent’s treatment of him up to and including the termination of his employment.
27The respondents acknowledge that the personal respondent received the medical note from the applicant’s doctor, dated April 5, 2008, which the personal respondent said he found on his chair. The applicant testified that he faxed this note on April 8, 2008, but as discussed above with respect to the June and August notes, there is a discrepancy between the fax confirmation sheet and the phone records. Moreover, on the copy of the note supplied to the Tribunal, the applicant has hand-written a note that it was faxed on April 11, 2008, not April 8, 2008, which is the date on the fax confirmation sheet.
28In any event, it is not important how this came to be in the respondents’ hands, but enough that they acknowledge receiving it, and with it notice that the applicant had a medical reason for being absent from work. On April 17, 2008, the applicant wrote a follow-up email to the personal respondent (and an identical one to a person identified as “Dimitra” who worked on the administrative side of the organization) asking for his Record of Employment (“ROE”). The purpose of asking for his ROE was to apply for Employment Insurance (“EI”) sick benefits. By this point, he had exhausted his paid sick day benefits and was on an unpaid leave from Domain.
29The personal respondent wrote back to the applicant on April 17, 2008, saying that he would talk to Dimitra and have it available for pick-up the following day. He wrote a follow-up email to the applicant later that day stating that he was advised an ROE is only available to former employees, and so the applicant would only be entitled to an ROE if he resigned his position. He then advises when the ROE would be available in the event that the applicant resigned.
30The applicant interpreted the company’s position as pressuring him to resign, but the evidence indicates that, in fact, the personal respondent had simply been given incorrect information by Dimitra. The applicant submitted a Request for Record of Employment to Human Resources Development Canada, and eventually received the requested ROE in early May.
31In their Response to the Application, the respondents assert that they had never denied the applicant his ROE and that it was processed in due course on April 28, 2008, with the other payroll records. Not only is this contradicted by the email from the personal respondent, but the ROE itself is dated May 2, not April 28, 2008. Nothing much turns on this sequence of events, but the respondents’ position on this issue is illustrative of the need to be wary when assessing their other assertions.
32In the first of the April 17, 2008 emails to the applicant, the personal respondent concludes his email by asking the applicant to let him know when he would “be returning to the office, as soon as you are able.” Earlier in the email he states that he had attempted to speak to the applicant’s doctor “regarding [the applicant’s] absence” but had not received a response. He also states that he had left a voice mail message and had emailed the applicant and had likewise not received a response.
33The personal respondent’s assertion that the applicant had not been responsive to his inquiries about how long he would be off is not correct as the applicant states in the email that precedes this one (i.e., the one in which he makes the request for his ROE): “I will return to work as soon as my health condition improves, which I hope will not be too long.” As discussed above, at this point the applicant could not be any more specific concerning his return to work as nothing had been resolved with respect to his health. Indeed, two days after this exchange of emails, the applicant attended at the emergency room of the Toronto East General Hospital, where he was treated for possible angina, and visited his family doctor who prescribed him medication to treat a possible anxiety disorder.
34With respect to the calls to the applicant’s doctor, the personal respondent states in an email to the applicant, dated May 8, 2008: “I have even left your doctor 10 messages and he also evades me.” Dr. Toledano testified that he could not recall receiving even one message from the personal respondent. He said it was possible that his secretary might have acted as a “barricade” but would have expected if there were 10 calls, he would have been notified by her of this fact. In any event, he testified he would not be able to speak to the personal respondent about the applicant’s health, as that information is confidential.
35The next contact the applicant had with Domain concerned his drug benefits card. On April 22, 2008, he wrote an email to Dimitra, on which the personal respondent was copied, in which he advises them that his benefits card was declined when he attempted to use it to fill his prescriptions. In this email, he mentions that he had previously had a conversation with Dimitra concerning this issue. He concludes the email with the following comment: “I need my medication, so that I can get better to return to work.” On April 24, 2008, the applicant’s benefits card was validated.
36However, the personal respondent sent the applicant a follow-up email, dated April 29, 2008, stating that the applicant owes $116.99 for the coverage of benefits for February and March 2008, and asking how the applicant plans to pay (or whether he wants the benefit plan terminated). Shortly thereafter, the applicant responded saying that there had been no mention of any payment in the package he received when he became eligible for benefits.
37In turn, the personal respondent sent a response email, dated May 1, 2008, in which he states:
Drug and dental care are offered to all employees following the probationary period.
However, the company does not pay the monthly premium for the benefits package. I recall mentioning to you that for your entire family to be on the plan the premium was over $300 per month and approximately $100 for just yourself and obviously that is why you just chose to put yourself solely on it. Benefit package information is provided to the insured individual. Any policies and procedures implemented by the employer to cover the cost of the premiums associated with benefits coverage are between the employer and employee, and therefore would not be noted in the information provided by the insurance company.
…due to an issue with the benefits coverage for you, the package was changed, and a new certificate of coverage was restarted due to the notification we received on 22-Apr-2008, and is now in effect. …
38However, the documentation submitted on behalf of the respondents shows that the problem (the applicant was initially assigned to the wrong plan with Alan Benlolo rather than with the other employees) was rectified by March 19, 2008 and the company invoiced for the corrected amount as of that date. There is nothing in the material submitted that would indicate that Domain received any notification from anyone other than the applicant on April 22, 2008.
39The applicant responded to this by email dated May 7, 2008, saying that he had not been told at the time he became eligible for the benefits that he would be responsible for paying the premiums, and that other employees had told him that they did not pay the premiums. He asks whether the reason for Domain now asking him to pay the premiums has to do with the fact that he asked for his ROE on medical grounds, and whether he should perceive the request “as a form of subtle discrimination?”
40On May 8, 2008, the personal respondent replied by email. In contrast to the May 1, 2008 email, this email acknowledges that the company pays the premiums for some of its employees, but that this is a discretionary decision:
Our policy is that after an employee’s 1 year review we take into account how a new employee has adapted to his new job, taken initiative, office attitude and demeanour, attendance, willingness to work extra shifts, etc. to determine their pay status, annual bonus, insurance coverage, etc.
41The applicant testified that after his probationary review (approximately three months into his employment) he received an hourly pay increase and bonus. That is, contrary to the information in the above email passage, he did not have to wait for his one year review in order to get this money. In an email to the personal respondent, dated May 14, 2008, he once again queries why this issue only arose after he was on sick leave.
42The personal respondent’s May 8, 2008 email raises two further issues:
We would like to facilitate you to the best of our ability upon your return to work so we will require more information about your medical condition to do so. We must know what your capabilities and limitations are with your current condition prior to your returning to work. Please provide us with the above information no later than May 15, 2008.
We have attempted to contact your previous employer Joy Tech Computers in order to find out what your previous job description was there but have had no success. Can you please provide me with more information about your previous employer including your direct supervisors name and contact information.
43The applicant’s May 14, 2008 email demands to know why the personal respondent is asking for references when he had already given them to him prior to his employment, and when had already successfully completed his probationary period. He notes further that the personal respondent had not had a problem with his work performance prior to him starting his leave.
44Since the applicant continued to be medically unfit to return to work, he was not in a position to talk about possible accommodations at work by the deadline in the personal respondent’s May 8, 2008 email. Instead, he writes in his May 14, 2008 response:
I really want to get well and return to work as soon as possible, but these continuous back and forward correspondence of trying to deny me of my right is doing nothing but aggravating my ill health.
…
Furthermore, my medical condition, capabilities, limitations and condition to return to work will be definitely forwarded to you by my doctor when I resume duties. My condition will definitely improve if you will be kind enough to put a stop to your constant pressure.
45The personal respondent testified that he sent a follow-up letter on May 16, 2008, which the applicant testified he did not receive. In any event, the information in it is not different in any important way from the information in the May 8, 2008 email.
46On May 22, 2008, the applicant sent an email to Alan Benlolo, the company president, asking him to intervene. He alleges in this email that his manager started putting pressure on him as soon as he was notified of his sick leave, by asking him to pay his monthly premiums and looking for “excuses to let [him] go.” He concludes this letter with the following:
The Manager has been requesting me to state my capacities, limitation and approximate time frame of my return to work.
How on earth, does he expect me to categorically give him all this information, when I am not sure when my condition will improve especially when he has been putting all this pressures [sic] on me, which is greatly affecting my emotional, physical, psychological and my well-being.
Finally, my condition will definitely improve if you would be kind enough to [word cut off in the photocopy] the Manager to put a stop to his constant pressure, so that I can get better to return to work.
47The company did not respond to this letter, and Alan Benlolo did not testify about why. Indeed, the next communication between the parties was the letter of termination dated August 29, 2008.
48The applicant alleges that the events that culminated in his termination from Domain are differential treatment based on the fact that he was required to take a disability-related leave of absence from work. I do not agree that all the treatment can be characterized as discriminatory. The assertion that the applicant needed to resign before the company could issue an ROE, while wrong, is not on its face discriminatory. I agree, however, that the evidence reveals three acts of differential treatment that constitutes prima facie discrimination on the basis of disability.
49The first act of differential treatment was the notification to the applicant that he was required to pay the premiums on his health benefits. The personal respondent initially defended this decision by suggesting that the company had a blanket policy of not paying the monthly premium for the benefits package, but amended this after learning that the applicant was aware of other employees who did not pay any premium.
50The respondents’ amended position – that the decision to exempt employees from paying premiums was a discretionary benefit granted only after the first year of employment – is not supported by any written policies or other documents. On cross-examination, the personal respondent acknowledged that the decision to deduct the “outstanding premiums” from the applicant’s termination pay was overturned by the adjudicator hearing the applicant’s claim for termination pay under the Employment Standards Act, 2000, S.O. 2000, c. 41, because this supposed requirement had not been put in writing. Based on all the evidence, I find that the applicant was only asked to pay the premium for his benefits because the respondents felt they should not have to pay for benefits for an employee who was on a medical leave of absence from work.
51The second act of differential treatment was the demand for the applicant’s references. On its face, the requirement to supply references after an employee has not only been hired, but also concluded his probationary period, in the midst of a medical leave of absence, is sufficiently odd as to require an explanation.
52The third and final act of differential treatment is the termination of the applicant’s employment. The termination of a disabled employee’s employment, in the midst of a medical leave of absence, is prima facie discriminatory and likewise demands an explanation.
53During the course of the hearing, the respondents offered many non-discriminatory reasons for their demand for the applicant’s references and the termination of his employment; actions which the personal respondent testified were interrelated. These are discussed below.
The Respondents’ Non-Discriminatory Explanations for the Applicant’s Termination
54To assist with his testimony, the personal respondent prepared what he described as a matrix setting out the reasons that the company asked for the applicant’s references and then, ultimately, terminated his employment. Unlike the demand for payment of his benefits premiums, these reasons are rooted in the applicant’s alleged conduct, rather than any policy supposedly in place.
55The personal respondent testified that the applicant was disciplined on two occasions during his employment, and the conduct that resulted in this discipline lowered the applicant’s “credibility” by 20%. The first incident involved the applicant allegedly coming into work with a large amount of cash. The evidence with respect to this incident is inherently unreliable and I have disregarded it. The personal respondent had no first-hand knowledge of it and neither the employee who reportedly saw the money, nor Alan Benlolo, the person who allegedly disciplined the applicant, testified. As I noted earlier, Mr. Benlolo was present throughout the entire proceedings.
56Likewise, I am unable to give any weight to the evidence about the second allegation of misconduct, in which the applicant allegedly hung up on a customer. The e-mail containing the complaint, which was proffered as proof of the incident, makes no reference to the employee’s identity. When asked about the incident, the applicant denied that he had been disciplined for any such incident. Given my finding that the personal respondent was not a credible witness, and in the absence of any supporting evidence, I am not prepared to accept his testimony in this regard.
57The personal respondent also testified that it came to the respondents’ attention during the applicant’s leave that he had submitted a “fraudulent medical application” when applying for benefits and this further reduced the applicant’s “credibility” by 10%. The evidence indicates, however, that it was the personal respondent who was responsible for putting the incorrect information on the applicant’s enrolment form for benefits, not the applicant.
58Under the terms of the benefits plan, employees were supposed to be enrolled in the plan in their fourth month of employment. The applicant produced an email from the personal respondent to him, dated January 8, 2008, stating that the personal respondent was “still waiting to hear about the benefit enrollment [sic] forms.” January 8, 2008, was within the four-month window that the applicant had to apply (having started on September 17, 2007). The logical inference from this email is that the delay in filling in the enrolment form was the fault of the employer, not the employee.
59The applicant testified that he did not get the enrolment form until February 2, 2008, which put his application for enrolment outside the four-month window. He testified that the personal respondent wrote on the form that the applicant’s start date was November 1, 2007, instead of September 17, 2007. By changing the applicant’s start date, it made it appear that his enrolment form was being submitted in a timely fashion.
60The first version of the form filled out by the applicant had mistakes on it, and he was required to fill out another form. He kept the original of the first form (i.e., the one that was returned to him), which show that the notations made by the personal respondent were made with blue pen (the rest of the form was filled out with a black pen). The fraudulent date of employment is one of those notations. Rather than finding that the applicant knowingly submitted false information, I find that the forms reveal that the personal respondent was responsible for the false information.
61Moreover, the applicant had dated the form that was submitted to head office as 2007-10-31, as he said he had been instructed to do so by the personal respondent. Rather than having the applicant cross-out and re-date his form, or having him fill out a new form, someone (presumably at Domain) simply altered the numbers on the date to make it appear as thought the applicant was signing it on 2008-02-01.
62The personal respondent testified that Domain received notification of the fraudulent employment date from the insurance company and he was instructed to carry out an investigation of the applicant. The respondents did not call the alleged informant from the insurance company or the alleged recipient from Domain to testify about this. Nor did they submit any documents which would support this allegation. Indeed, the documents they submitted showed that the only issue with respect to the applicant’s benefits was that Domain had inadvertently put him in the same plan as Mr. Benlolo rather than with the other employees, a mistake that was corrected by March 2008.
63Significantly, the respondents make no reference to this so-called “fraud” in their Response, dated January 22, 2009, and, specifically, do not cite it as a reason for terminating the applicant’s employment or inquiring about the applicant’s job references.
64The applicant’s failure to provide information on his previous employers was listed twice in the personal respondent’s matrix of reasons and, he testified, accounted for a 20% drop in the applicant’s “credibility.” If the respondents had a legitimate reason for making inquiries about the applicant’s work history at this time, they might have had reason to be concerned about his failure to provide this information. However, as I have already noted, the only reason proffered for doing this – concerns about fraud on his benefits enrolment – was concocted after the fact. In the absence of a legitimate reason, I find the only reason for asking for this information was to harass the applicant during his leave either in an effort to get him to quit or return to work.
65The personal respondent noted that the nature of the work done by the technical support group at Domain means that employees have access to secure information and therefore, it is important that they be honest. However, he also testified that he routinely hires people on the spot without checking their references. Later, he testified that, inexplicably, it is his practice to attempt to get this information from employees after their three-month probation. The personal respondent’s testimony in this regard was so inconsistent as to be completely unreliable.
66The only other job-related reason offered in the personal respondent’s matrix was his concern that the applicant used “fictitious e-mail addresses.” The email addresses for the applicant in the emails in evidence are “mikeohio49” at gmail and “felly07” at hotmail. The applicant testified that he when he started at Domain he was instructed to get both gmail and hotmail addresses, and that these are the two identities he selected.
67At no point in their email correspondence back and forth during the applicant’s leave does the personal respondent ever comment to (let alone question) the applicant on his choice of addresses, even though the personal respondent wrote to the applicant at these addresses. Again, I find this is merely an after-the-fact rationalization, which had no impact on the personal respondent’s decision at the time.
68The remaining reasons on the personal respondent’s matrix concern the applicant’s “attitude” in his May 7 and 14, 2008 emails to the personal respondent, his failure to reply to the personal respondent’s request for information about his return to work in his letters of May 8 and 16, 2008, and the applicant’s failure to contact anyone at Domain from May 22 to August 29, 2008.
69I need not deal with the applicant’s attitude at length as the personal respondent testified that this only resulted in a “15%” drop in the applicant’s “credibility.” Suffice to say that much of the applicant’s attitude was in direct response to what I have characterized as the respondents’ discriminatory actions.
70The assertion that the applicant “failed” to provide the respondents with the information they (or, at least, the personal respondent) requested is based on two flawed assumptions: (1) that the respondents were entitled to confidential information on the nature of the applicant’s medical condition, and (2) that the applicant could somehow be returned to work with accommodations.
71With respect to the latter assumption, at the time the personal respondent was asking the applicant to provide Domain with information about his “capabilities and limitations” in order to “facilitate his return to work,” the applicant’s condition was such that any return to work was out of the question. Questions concerning possible accommodations in the workplace are appropriate when an employee is medically ready to return to work. Given the applicant’s condition at the time, his responses that he needed more time to get better was a signal to the personal respondent that his inquiries about accommodation measures at the worksite were premature.
72As for the three-month period in which the respondents did not hear from the applicant, it should be noted that the communication that is integral to the accommodation process is a two-way street. While it is unfortunate that the applicant did not provide updates to the respondent, it must be noted that the respondents did not demand or even request this information. The applicant had obtained two further medical notes from his doctor during this period and had they asked for updates, these could have been readily supplied to the respondents. It must also be noted that the last communication – the plea from the applicant to Alan Benlolo to have him get the personal respondent to ease off on the pressure on him – went unanswered by the respondents.
73Domain called three current employees to testify that their illnesses had forced them to take numerous days off work, and that these absences had been accommodated by the corporate respondent. All three witnesses worked in the Customer Service Group, and were not supervised by the personal respondent. Their need for time off work tended to be short-term – the longest absence anyone was able to recall was six weeks – and so their accommodation needs were distinguishable on that basis as well.
74Counsel for the applicant objected to this testimony being called. I said I would allow the testimony, but advised the respondents at the outset that I could give this testimony very little weight unless someone in authority testified about the existence of a pattern or practise of accommodation at Domain. I asked whether the corporate respondent was planning to call this evidence, to which Mr. Benlolo answered he was “not sure.” At the end of the day, no such testimony was received, and I am left with the random testimony of three individuals who worked in a different department from the applicant, who were not supervised by the personal respondent and who had very different accommodation needs. Accordingly, I can infer nothing from this evidence vis-à-vis the situation with the applicant.
75The personal respondent testified that, based on his research of the Employment Standards Act and the Canada Labour Code, R.S.C. 1985 c. L-2, he understood that an employer can dismiss an employee who is off work in excess of 12 weeks and it is possible that this informed the decision to terminate the applicant’s employment. Unlike the statutory provisions set out in those pieces of legislation, the Code has does not specify a time period beyond which an employer does not have to accommodate an employee’s absence. Rather, the absence must result in “undue hardship” to an employer before that employer can terminate the employment of a disabled employee.
76The respondents did not assert that they were unable to accommodate the applicant’s absence from work. Indeed, the personal respondent testified that there were more than enough technicians to pick up the applicant’s workload.
77Although he signed the letter of termination, the personal respondent testified that the ultimate decision to fire the applicant rested with Mr. Benlolo, who chose not to testify. The letter of termination gives no reason for the decision, and so I am left to infer from the documents and the testimony of the personal respondent (that which could be believed) the real reason or reasons for the termination of applicant’s employment.
78I have found, as discussed above, that the applicant has made out a prima facie case of discrimination on the basis of disability. The “non-discriminatory” reasons proffered by the personal respondent for his recommendation to terminate the applicant’s employment are unsupported by any credible evidence and can be dismissed as mere pretext. In the absence of a credible, non-discriminatory explanation, I must conclude that the applicant has met his onus that his disability was a factor, indeed the primary factor, in the respondents’ treatment of him.
REMEDY
79The Tribunal’s remedial powers are set out in section 45.2 of the Code:
45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party out to do to promote compliance with this Act.
Wage Loss
80The medical note from the applicant’s doctor indicated that he would be available to return to work on September 8, 2008. The applicant said that after he learned he was fired, he started looking for work immediately, and supplied a list of jobs to which he applied. The list shows that he the applied for several jobs on September 10, 2008. He supplied a number of return emails from companies thanking him for applying as further evidence of his mitigation efforts. He also testified that he started on regular EI benefits at that time, and continued collecting them until the following year when his eligibility for them ran out. When he testified about this on October 29, 2009, he was still unemployed.
81The respondents cross-examined the applicant at length about versions of his resume that they allege altered the dates during which he was employed at various places, and sometimes excluded certain employers (including Domain) from this resume. Although it was not entirely clear from his answers, it appeared that the applicant acknowledged altering his resume to reflect the type of job experience he perceived would be relevant to the recipient, and to avoid having prospective employers contact Domain. Whether or not this is honest or appropriate is not an issue I need to resolve. Suffice to say, it did not undermine the applicant’s evidence that he was making efforts to mitigate his losses.
82Prior to the applicant going on his sick leave, he was regarded as a competent employee who could handle the technical requirements of the job, and had the added skill of being able to handle the French inquiries. Even if he had inflated his previous work experience (and I am in no position to assess this collateral fact), as was suggested by the respondents, it appeared to have no detrimental impact on work performance at Domain. As noted above, I find that Domain’s inquiries into his past work experience would not have taken place but for the fact that he was absent from work due to a disability.
83Had Domain not discriminated against the applicant, I find he would have returned to work on September 8, 2008. Domain did not lead evidence that there were layoffs or other factors that might have resulted in the applicant leaving his employment with them early. While it is possible that his anxiety disorder might have interfered with his ability to return to or remain at Domain, this is purely speculative since Domain deprived him of the opportunity to try.
84Counsel for the applicant suggested that the applicant receive damages for lost wages from the time the applicant would have returned to work until the date of this Decision. However, the evidence of the applicant’s unemployment was only until October 29, 2009. Although he gave reply evidence in December 2009, the applicant did not provide any update with respect to this employment status. Accordingly, the appropriate period of compensation is from September 8, 2008 to October 29, 2009. The appropriate level of compensation is a gross weekly rate of $640.00 (which reflects an hourly rate of $16.00 per hour, and a 40-hour work week). This base amount is reflected in the documents prepared by Domain.
Monetary Compensation for Injury to Dignity, Feelings and Self-Respect
85Section 45.2(1) of the Code authorizes the Tribunal to order compensation for injury to dignity, feelings and self-respect. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605, the Divisional Court confirmed that there is no ceiling on the amount of compensation that can be awarded. In speaking about general damages, the Court noted at paragraph 153:
Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant and the seriousness of the offensive treatment.
86In this case, the psychological evidence was largely about the applicant’s anxiety which pre-dated the discrimination. His doctor did not testify about the impact of the termination on the applicant, although he did note that the applicant reported to him in May 2008 that he felt pressured by the respondents while off on leave. One can infer from the email exchange that the personal respondent’s discriminatory conduct while the applicant was still employed (although off on leave) ramped up the level of his anxiety. Moreover, it is clear that the respondents’ ongoing, and generally unsupported, allegations of fraudulent conduct have added to the psychological impact of the discrimination on the applicant. However, the evidence from the applicant with respect to the termination itself was somewhat more muted. Like most applicants who find themselves out of work, the absence of an income has been an added stress in his life. In light of the factors enumerated above, an award of $15,000.00 is appropriate.
87Despite the fact that I have made numerous adverse findings about the personal respondent’s credibility in this Decision, I find that he was acting in the course of his employment and with the apparent approval of Alan Benlolo on behalf of Domain. Therefore, the above monetary awards are payable by Domain alone.
ORDER
88The respondent, Domain Registry Group, is ordered to pay to Godwin Ilevbare the following amounts within 30 days of the date of this Decision:
$38,400.00, representing 60 weeks at $640.00 per week, minus applicable statutory deductions, as compensation for his loss of employment income;
$15,000.00 as compensation for injury to his dignity, feelings and self-respect;
Prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990 c. C.43, on the amount set out in (1) from April 10, 2009; and
Prejudgment interest in accordance with the Courts of Justice Act, on the amount set out in paragraph (2), from September 8, 2008.
89In the event that the respondent, Domain Registry Group, fails to make the payments described in 1) through 4) above within 30 days of the date of this Decision, the respondent shall pay postjudgment interest in accordance with the Courts of Justice Act.
Dated at Toronto, this 29th day of October, 2010.
“Signed by”
Naomi Overend
Vice-chair