Zaidi Syed v. Khetia Pharmacy Inc. o/a Shoppers Drug Mart and Jay Khetia, 2010 HRTO 2401

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zaidi Syed

Applicant

-and-

Khetia Pharmacy Inc. o/a Shoppers Drug Mart and Jay Khetia

Respondents

DECISION

Adjudicator: David Muir

Date: December 2, 2010

Citation: 2010 HRTO 2401

Indexed as: Syed v. Khetia Pharmacy

APPEARANCES BY

Zaidi Syed, Applicant ) Cecil Norman, ) Representative

Khetia Pharmacy Inc. o/a Shoppers Drug Mart, ) Craig R. Colraine, Respondent ) Counsel

Jay Khetia, Respondent ) Craig R. Colraine, ) Counsel

1This is an Application filed June 29, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A hearing was held in Toronto on October 29,2010 in accordance with the expectations set out in the Tribunal’s Rules for Transitional Applications under Sections 53(3) and 53(5). I heard from the applicant, Mr. Khetia, the individual respondent, and an employee of the respondent employer.

3In the human rights complaint filed with the Ontario Human Rights Commission (the “complaint”) on June 27, 2005 the applicant alleged that his right to be from discrimination in employment on the basis of his ancestry, ethnic origin, place of origin and disability was infringed by the respondents. The applicant also alleges that he was subject to reprisal by the respondents.

4The particulars of these general allegations as set out in the complaint are as follows:

a. The applicant states that he is a man from Pakistan. He alleges that he suffered from workplace stress.

b. The applicant became employed by the respondent in August 2004. The applicant states that the respondent Khetia is an Indian man. The applicant alleges that in an interview with Khetia he wished to focus more on direct customer counselling which includes: extended pharmaceutical care to patients, booking appointments for diabetes management, etc., and that he was looking forward to being an associate at Shoppers Drug Mart.

c. The applicant alleges that a few weeks after he commenced employment he noticed that Khetia was scheduling fewer staff during his shifts which required the applicant to spend more time doing non-pharmacist duties. The applicant states that Khetia was doing this to save money and was not amused when I questioned his scheduling.

d. The applicant alleges that Khetia withheld his statutory holiday pay in order to demonstrate his power over the applicant. The applicant alleges that this was differential treatment. The applicant alleges that he was entitled to holiday pay. The applicant states that eventually Khetia paid his holiday pay but did it in a dehumanizing way and said “I am giving this to you as a favour for the good job that you are doing.”

e. The applicant alleges that not long after, Khetia reprised against him for complaining that he had subjected me to differential treatment. On November 11, 2004 Mr. Khetia prepared an impromptu performance letter. At a later date the applicant alleges that Mr. Khetia stated that the letter meant nothing and that he would put everything behind them and start fresh with the applicant.

f. The applicant alleges that despite the poisoned environment he was prepared to try. He alleges that he spoke to Mr. Khetia again about the scheduling issue and how it was impacting on his professional services to clients. The applicant alleges that he was the only one that Mr. Khetia withheld resources from. The applicant alleges that despite assurances from Mr. Khetia that the problem would be resolved Mr. Khetia became dismissive and abrupt. The applicant alleges that as a reprisal, Khetia recommended another part-time pharmacist to the Associate program over me.

g. The applicant alleges that between January and March 2005 he sought a healthy working relationship with Mr. Khetia but that he was not co-operative. The applicant alleges that the workplace became stressful and on several occasions Mr. Khetia left a back-log of work for him as a reprisal. The applicant alleges that patients began to complain because of the delays caused by his workload. The applicant alleges that the stress at work began to affect his health. The applicant alleges that senior management was aware of the harassment but did nothing to correct the situation.

h. The applicant alleges that on March 2, 2005 Mr. Khetia issued him a warning letter alleging a failure to comply with the respondents’ loss prevention program. The applicant alleges that the charge was unfounded and was evidence of bullying harassment and reprisal action by Mr. Khetia. On March 7, 2005 the applicant was terminated.

5The application is dismissed. There is no evidence to support any of the allegations made by the applicant.

6The applicant was generally not credible. His evidence was given in a vague and uncertain way. He relied on notes a great deal not for dates, which were rarely given but for the gist of his allegations. For example in the complaint he alleges that he repeatedly raised concerns with Mr. Khetia about differential treatment, but at the hearing was unable to describe any such incident. He also alleges that he told Mr. Khetia that he was becoming ill due to stress and may have to take time off work. At the hearing when asked about this the applicant testified that he had to take one or two days off after a car accident in December 2004. It is not at all clear that the employer was ever aware of this incident. The various iterations of his allegations are not entirely consistent and in some important respects contradicted by the evidence given at the hearing. For example in the applicant’s statement of additional facts he states that he told Mr. Khetia on February 22, 2005 that he was becoming ill due to stress in the workplace. As noted above when asked about his attempts to communicate his alleged disability to the employer he spoke only about a car accident in December 2004. I also note that when challenged on key points in cross-examination the applicant back tracked or was non-responsive. In short I find that the applicant did not provide a reliable account of past events and I have given his evidence at the hearing little weight unless corroborated by other evidence tendered by the parties.

7There is no evidence that the applicant is or was at any material time a person with a disability. He alleges that his treatment in the workplace caused him stress and that he was having trouble sleeping at night. I note that neither of these things are necessarily disabilities within the meaning of the Code. There is also no contemporaneous medical evidence that he was experiencing any difficulties medical or otherwise. More importantly there is no evidence that he ever raised the issue with his employer. When asked by myself and his representative to tell us when he might have raised this issue with the respondents the applicant only referred to a motor vehicle accident in December 2004 for which he required a day or two off for recovery and treatment. The complaint does not state when he might have raised the issue. There is no mention of the issue in two emails sent to Shoppers Drug Mart after his termination. The respondent Mr. Khetia had no recollection of the applicant ever raising it. I am not satisfied that there is any evidence to support the contention that the applicant raised an issue of workplace stress with the employer that was not appropriately responded to.

8The allegation that appeared to be at the heart of this Application was the applicant’s assertion that he was denied payment for a statutory holiday because of his ancestry, ethnic origin and place of origin. The applicant believes that he was only paid holiday pay for an unidentified statutory holiday when he raised it with what he understood to be the employer’s head office – the Human Resources Department at Shoppers Drug Mart. The applicant alleges that everyone else was paid their holiday pay. The harm done was exacerbated according to the applicant when the payment was finally made; Mr. Khetia allegedly wrote a note on the cheque stub to the effect that the payment was a gratuitous reward for good work on the applicant’s part. The applicant stated that this made him fell like he was in a master-slave relationship.

9Beyond the fact that the applicant believed he was entitled to be paid holiday pay for the holiday in question, and there is a dispute about that issue, there is no evidence to support the applicant’s contention. The applicant believes that he was entitled to be paid holiday pay because he had been employed in a Shoppers Drug Mart pharmacy for several years. The position of the respondent employer is that the applicant was employed by Khetia Pharmacy Inc. o/a Shoppers Drug Mart which is a franchisee of Shoppers Drug Mart. Accordingly the respondent employer states that when the applicant joined them in late August 2004 he was considered a new employee and rightly or wrongly it was Mr. Khetia’s position that the applicant was not entitled to holiday pay during the first three months of employment.

10Whether or not the respondent is correct in its interpretation of the Employment Standards Act, 2000, S.O. 2000, C.41 which governs this question, there is no evidence that the applicant was treated any differently than any other employee of the respondent in this regard. The applicant’s assertion that everyone else got their holiday pay is not evidence that he was treated differently on the basis of a Code ground. As for the allegation that the handwritten note on the cheque stub was offensive and in some sense racist there are two problems. First given the nature of the dispute between the applicant and the employer about his entitlement to the payment it is not at all clear that the note if made would be an inappropriate response – in the respondents’ view it was a gratuitous payment. Secondly the applicant produced what he claimed was the cheque stub in question and it does not appear to relate to the payment of holiday pay but to the payment of the applicant’s license fee to the College of Pharmacists, a payment made on behalf of staff pharmacists by the employer. I am not satisfied that this incident is evidence of differential or discriminatory treatment of the applicant.

11The other significant allegation of differential treatment is not supported by the evidence either. The applicant asserts that on his shift the employer deprived him of the resources needed to do his job. In particular he alleged that on his shifts pharmacists’ assistants were not made available to him. When shown the schedules for pharmacists’ assistants before, during and after his tenure with the respondent which showed that he was provided with the same support as all other pharmacist’s shifts he responded that when the pharmacist assistant on his shift called in sick they were not replaced. He was unable to say how he was treated any differently in this regard. I note that there is no mention of inappropriate differential treatment in two emails sent by the applicant to Shoppers Drug Mart subsequent to his termination.

12The applicant alleged that after he raised these issues of lack of resources with Mr. Khetia he was subject to reprisals in the form of performance management letters beginning on November 11, 2004. When asked at the hearing when he raised his concerns with Mr. Khetia he was unable to say when he had done so or say anything at all about these interactions. Mr. Khetia testified that the applicant never raised any concerns that he was being treated differently than other employees. I am not satisfied that even if this allegation can be understood as differential treatment prohibited by the Code, that these issues were raised with Mr. Khetia.

13I also do not accept that any of the incidents alleged by the applicant as reprisal are properly understood as such. One of the incidents alleged to be a reprisal by the applicant was the fact that Mr. Khetia recommended another part-time pharmacist for an Associate Development program and not the applicant. This program is intended to identify and groom pharmacists for possible franchise opportunities. The applicant had no evidence that the reason for the recommendation of the other individual over him was motivated by the fact that the applicant had raised his concerns with differential treatment with Mr. Khetia. Mr. Khetia testified that he recommended the other pharmacist because he had known him for a long period of time and felt his work merited consideration for the program. The individual respondent testified that on the other hand the applicant had only just been hired when this decision was made and he felt that he was in no position to make an assessment at that stage of the applicant’s suitability for the Associate Development program.

14The applicant also alleged that he was subject to trumped up performance issues as a reprisal. There is no evidence that this is the case. The evidence is that there were legitimate, documented performance issues raised from time to time by the employer sparked by incidents or complaints from staff and clients and on one occasion a physician. The applicant for the most part simply denied that the incidents had occurred or were his responsibility. He also denied that most of them were raised with him or complained that they were not set out on the correct form. Mr. Khetia testified that he raised these issues with the applicant but that he would not acknowledge them or explain his actions.

15The applicant’s denial that these issues were raised with him is not credible in all the circumstances. The evidence of Mr. Khetia was straightforward and consistent with contemporaneous documents. It was also confirmed to a significant degree by an employee of the pharmacy who was called into all or part of several meetings between Mr. Khetia and the applicant where these issues were discussed. There is also a letter of complaint from a client of the pharmacy in support of one of the documented incidents.

16The applicant’s response to these issues in his evidence was vague and unconvincing. For the most part he denied that the event ever occurred or attempted to deflect responsibility. It does not matter for these purposes whether or not the complaints giving rise to the employer’s concerns were entirely well founded but rather the applicant is required to show that they were raised in whole or in part as reprisals for his having raised his concerns of differential treatment. No such evidence was offered by the applicant; to the contrary the evidence shows that the respondents’ concerns were legitimate.

17The applicant also alleges that he was terminated in whole or in part because of his race, ethnic origin and place of origin. The applicant alleges that the individual respondent did not know he was Pakistani when he was hired and when he subsequently learned that this was the case determined to get the applicant out of the workplace. The applicant asserts that the individual respondent is from India.

18There is no evidence to support the applicant’s theory. He has no evidence that Mr. Khetia did not know that he was Pakistani when he was hired. Mr. Khetia testified that he probably did know, to the extent that it mattered to him, based on the applicant’s resume which he would have reviewed prior to the applicant’s interview. The individual respondent testified that he was born in England and has lived in Australia and Canada. His parents were born in Africa. He has visited India on one occasion but otherwise has no connection with India. The individual respondent states that his workforce is multi-ethnic and includes other individuals who were either born in Pakistan or whose origins are Pakistani, including the pharmacist who he recommended for the Associate Development program.

19As regards the allegation that the reasons given for the applicant’s termination and the discipline imposed prior to that point were a frame up campaign to terminate the applicant because he was from Pakistan, there is similarly no evidence to support this theory. As indicated earlier the evidence at the hearing was that there were significant performance issues that had been documented and raised with the applicant prior to his termination and that Mr. Khetia had reason to believe that improvement in the applicant’s performance was not forthcoming. The applicant also did not contradict the evidence that he failed on occasion to comply with the respondent’s loss prevention policy – a further reason for his termination – but rather questioned whether or not it applied to him. Given that he complied with the policy on some days and not on others suggests that he knew it applied to him but for reasons unknown was inconsistent in his adherence to it.

20Finally, and for the first time at the hearing, the applicant alleged that he contacted the Human Resources Department at Shoppers Drug Mart to complain about his treatment and later the same day he was terminated. The applicant alleges that his termination was a direct result and a reprisal for the phone call made by the applicant. The allegation was very vague – the applicant was unable to say who he spoke to or what was said. Mr. Khetia testified that the first he heard about such a phone call was at the hearing and he recalls no contact with Shoppers Drug Mart concerning the applicant on or about the time of his termination. I note again that there is no mention of this allegation in the complaint or in the two subsequent emails sent by the applicant to individual employees of Shoppers Drug Mart on March 15, 2007 about a week after the termination. I also note again that these emails although expressing shock about the termination of his employment say nothing about differential treatment on Code grounds. In the end other than the bald allegation there is no credible evidence to support the applicant’s allegation that he placed a call to Shoppers Drug Mart the day of his termination and more to the point, no evidence at all that the otherwise untainted termination was in fact a reprisal for the alleged phone call.

21For all of these reasons the Application is dismissed.