HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shah Islam
Applicant
-and-
Geoffrey Ball, Darryl Hogan and Barbara Workum
Respondents
DECISION
Adjudicator: David Muir
Indexed as: Islam v. Ball
Appearances
Shah Islam, Applicant ) Self-represented
Geoffrey Ball and Darryl Hogan, ) Barbara Workum,
Respondents ) Representative
Barbara Workum, Respondent ) Self-represented
[1] This is an Application filed on June 25, 2009 pursuant to s. 53(5) of the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended (the "Code"). It relates to a complaint filed with the Ontario Human Rights Commission on November 11, 2007 alleging discrimination in employment on basis of race, colour, creed, place of origin and sexual orientation. A hearing was held on October 26, 2010 in accordance with the expectations of the Tribunal's Rules of Procedure for Transitional Applications. I heard from the applicant and the three individual respondents.
Background
[2] The applicant was initially hired to work at J. Ennis Fabrics Ltd. through a temporary agency from February to April 2006. He was offered a full-time position in April 2006. The employer was not named as a respondent to the Application. The respondents are Geoffrey Ball, Distribution Centre Manager, Darryl Hogan, the assistant Distribution Centre Manger, and Barbara Workum, an employee in Human Resources at the Edmonton head office.
[3] The parties agree that there were no problems early in the employment relationship.
[4] The applicant alleges he was subjected to racial discrimination between December 2006 and June 2007. At the heart of the applicant's claim is an assertion that he was dismissed in July 2007 on a fabricated charge of sexual harassment of a fellow employee, M. B.. The applicant alleges that the respondents conspired together to poison the mind of M. B. against him and induced her to make the complaint against him. He also alleges that persons in the workplace made racial slurs at him or comments implying that he was gay and that the supervisor did not take any action to stop it.
[5] In 2009 HRTO 2164 the Tribunal dismissed part of the Application pursuant to section 45.1 of the Code. The Tribunal held as follows:
Accordingly, I conclude that the applicant cannot challenge the misconduct aspect of the termination in the human rights Application. However, it remains open to him to try to establish that despite the misconduct, racial discrimination nonetheless was a factor in the decision to dismiss him.
The Application also contains serious and detailed allegations of harassment on the basis of race and sexual orientation. No proceeding has dealt with those allegations and they are not dismissed.
[6] The respondents state that in May 2007 M. B. brought a formal harassment complaint against the applicant. Following an internal investigation, the applicant agreed to limit his contact with M. B. and signed an agreement to that effect. M. B. signed a modified version of the same agreement. One of the terms of this agreement was the parties would keep the matters in strict confidence.
[7] The respondents state that on July 4, 2007, M. B. complained to the employer that the applicant was speaking with a colleague to try to get her to meet with the applicant outside of the workplace. After this assertion was confirmed in writing by the other employee, the applicant's employment was terminated.
Other Proceedings
[8] The controversy in the workplace has resulted in a number of proceedings.
[9] M. B. brought a charge of criminal harassment against the applicant. There is reference in the material to a conviction on this charge. At the outset of the hearing the applicant sought to introduce his Notice of Appeal of this conviction with a view to expanding the scope of this Application. I denied the request.
[10] The applicant appears to have filed a complaint with the Ministry of Labour seeking termination pay. The Ministry investigated the claim and in a decision dated March 20, 2009, the investigating employment standards officer dismissed it on the basis that the applicant had been guilty of wilful misconduct and was accordingly not entitled to termination pay.
[11] At the hearing, the applicant advised that he had commenced an Application for Judicial Review of a decision of the Ontario Labour Relations Board ("OLRB"). It was not clear what this decision was in relation to, there being no indication that the OLRB had heard an appeal of the employment standards officer's decision, nor whether one had been begun by the applicant.
[12] The applicant also sought benefits under the Employment Insurance Act in July 2007. The Employment Insurance Commission determined that the claimant had lost his employment due to his own misconduct and imposed an indefinite disqualification effective July 8, 2007. The claimant appealed the Commission's decision to a Board of Referees (the "Board"). He appeared in person before the Board. The Board found the written documentation provided by the employer was both credible and well founded. The Board found the applicant's evidence lacked coherence and any measure of reliability. The Board concluded that the applicant had breached the employer's harassment policy and that this misconduct caused his dismissal.
[13] The applicant appealed the Board's decision to an Umpire and a further hearing was held on September 29, 2009. In his written decision dated October 2, 2009, the Umpire noted that the applicant continued to deny any harassment of M. B. and at the same time brought with him his Probation Order which he received as a result of his conviction for Criminal Harassment on September 18, 2009.
[14] The Umpire's authority is limited to reviewing the Board decision to ensure that it complied with procedural fairness and the findings were based on the evidence before it. The Umpire dismissed the applicant's appeal. It was on the basis of the Board of Referees and Umpire's decision that the Tribunal concluded that aspects of the Application had been appropriately dealt with in a prior proceeding.
Allegations of the applicant
[15] Although not clearly articulated in the complaint in this way, the applicant asserts that his termination was discriminatory because the complaint of harassment by M. B. was induced by the respondents, in particular Ball and Hogan, who were jealous of his relationship with M. B. and wanted her for themselves. In the applicant's words, their uncontrolled lust caused them to poison her mind against him, which in turn caused her to make the complaint about him. The respondent Workum's role in this was to facilitate his dismissal, clearing the way for Ball and Hogan to pursue their designs with M. B.. There are also a number of specific allegations of inappropriate language and name calling directed at the applicant.
DECISION
[16] This Application is dismissed.
[17] On the face of it, the applicant's theory with respect to the termination is outlandish and there is absolutely no evidence to support the applicant's theory. The respondent Workum received the complaint and in good faith investigated it and concluded that there was some basis for it. According to Ms. Workum, who was not challenged on these points, the applicant admitted to sending M. B. a letter, giving her chocolates and leaving her food. In short the employer considered that there was merit to the complaint of M. B.
[18] As a consequence, according to the respondents, the employer determined that something must be done in response. It was decided that it would have both M. B. and the applicant sign an agreement dated May 2, 2007 setting out guidelines for how they would interact in the workplace. In general terms, it required them while in the workplace to only speak to each other when required for business purposes. It also imposed a "gag order" on both of them. Neither were to talk about the complaint or the response to it between themselves or with other employees. The applicant's version of the agreement stated that failure to comply with these requirements would result in immediate dismissal
[19] A couple of weeks later another employee contacted Ms. Workum and stated that the applicant had approached her and had spoken about the issues with M. B. and his feelings about her. She was asked by Ms. Workum to record what had happened in writing, which she did. The letter describes the applicant's speaking to her of the situation with M. B. and his feelings for M. B. which at the time were, if recorded accurately, somewhat confused but nonetheless disturbing. The employee approached M. B. as requested by the applicant. According to the employee's report to Ms. Workum, M. B. became very upset about the fact that the applicant had been speaking about the situation with another employee.
[20] According to Ms. Workum's evidence, the employer interpreted the applicant's approaching this employee as a violation of the May 2, 2007 letter and terminated his employment.
[21] At the hearing I pointed out to the applicant that even if his theory as set out above was accurate it did not appear to be a violation of the Code. I repeatedly asked the applicant for any evidence that any of the respondents' decision-making, including the concern about the complaint made by M. B., was informed in whole or in part by issues of his race, colour or place of origin. He had none to offer.
[22] I asked him if he had reason to believe that the respondents Ball or Hogan were offended by the fact that a brown man was seeking a relationship with a younger white woman. He stated that it was his belief that this was the case however he did not have any evidence direct or otherwise from which the inference could be drawn. While it is possible to imagine such a scenario, more than imagination or a sincere belief is required; there must be some evidence or circumstances from which an inference might be drawn that these factors were present. The evidence presented, although incomplete, is more than enough to establish that the employer had a well founded concern about the applicant's interactions with M. B. and took steps to remedy the situation. The applicant failed to abide with the terms imposed on him by the employer and for that reason was terminated. The applicant's assertion to the contrary has no basis in reality.
[23] As regards the other allegations of inappropriate comments and name calling related to his race, place of origin and sexual orientation, I am unable to find that any of these events occurred as described in the complaint, there being no credible evidence that such things were said by any of the respondents. I also note in this regard that the applicant has not named the employer as a respondent and it is not clear to me how these respondents can be held liable for remarks allegedly made by other individuals.
[24] When asked to elaborate on the assertions in the complaint, the applicant would invariably bring it back to the general assertion about the conspiracy between the respondents to interfere in his relationship with M. B. because of their jealousy and lust. In the end, the only evidence offered by the applicant was that some remarks and aggressive words were said to him by unidentified persons in the washroom. It is impossible to conclude that the named respondents participated in or were even aware of these allegations. Accordingly, even if such things were said, and I am not persuaded that they were, these respondents are not responsible under the Code.
[25] For all of these reasons the Application is dismissed.
Dated at Toronto this 2nd day of December, 2010.
"signed by"
David Muir Vice-chair