Mohammad Alam v. Brimell Motors Ltd. et al., 2010 HRTO 274

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammad Alam

Applicant

-and-

Brimell Motors Ltd., Laura Moon, Mike Hamilton and Anthony King

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Kaye Joachim

Date: February 5, 2010

Citation: 2010 HRTO 274

Indexed as: Alam v. Brimell Motors

APPEARANCES BY

Mohammad Alam, Applicant ) On his own behalf

Brimell Motors Ltd., Laura Moon, Mike Hamilton ) Wm. Mark Fryer, Counsel

and Anthony King, Respondents ) )

1This is an Application filed December 23, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Case Resolution Conference (“hearing”) was held on December 1 and 2, 2009.

2In accordance with the expectation that transitional applications should be conducted in a fair, just and expeditious manner, I adopted the following procedures. The applicant was asked to adopt the detailed complaint and statements of facts he had submitted and given an opportunity to elaborate further before cross examination. The respondents’ witnesses were asked to adopt their will says and elaborate on additional matters before the applicant was given an opportunity to cross examine. The parties filed final submissions in writing which were received by January 29, 2010.

3At the hearing on December 1, 2009, the applicant renewed his request for an adjournment and asked me to reconsider my production decision, seeking production of customer survey (CSI) results. For the reasons set out in my Interim Decision 2009 HRTO 1987, I was not satisfied that the documents requested were arguably relevant and therefore I declined to reconsider or adjourn the hearing. I note that, despite my ruling, the respondents voluntarily disclosed the CSI reports. However, I find that they are not helpful to my Decision.

4The Application is dismissed for the reasons that follow.

5The applicant alleges that the respondents terminated his employment because of his disability. The respondents state that they terminated the applicant’s employment for failure to comply with company rules and policies.

6Laura Moon became the General Sales Manager in February 2008. Anthony King became the Used Vehicles Manager in early March 2008. Mike Hamilton was appointed Vehicle Sales Manager in 2008. Ms. Moon decided to tighten up the sales department and implemented policies to improve accountability.

7The respondents testified that some employees, including the applicant, resisted the changes. They testified that the applicant had an insubordinate attitude towards Mr. Hamilton and Ms. Moon and speculated that it might be because Ms. Moon was a woman and Mr. Hamilton was young. At the hearing, the applicant constantly tried to question the experience of these managers and claimed that they were very inexperienced.

8The respondents testified that the applicant was terminated for his failure to follow internal procedures. While the details of the alleged failure to follow procedures is not required, I believe it would be useful to summarize the evidence regarding the alleged infractions.

March 12 to 14, 2008

9On Thursday, March 13, 2008, a new Camry for the applicant’s client was damaged while being moved to the corporate respondent’s lot. The applicant testified that the client was upset and he asked that Mike Hamilton speak to the client and suggested giving the applicant a loaner car. Mr. Hamilton responded that they are not a rental company and the client can expect the car whenever it is ready. The applicant stated that he began experiencing symptoms as result of this altercation. In the end, he gave the keys to Mr. Hamilton with words to the effect, “please, you are the manager, deal with it. “

10Mike Hamilton told a different story. He alleges the events occurred Wednesday, March 12, 2008. He testified that the applicant advised him about the need to repair the car and he asked the applicant to tell the client about the delay. He stated that there was no altercation or argument about this event.

11Mr. Syed Ahmed, who was also fired from the corporate respondent a few months later, testified that he saw the applicant around that time and when he saw the applicant he appeared to be in distress.

The applicant’s medical condition

12On Friday, March 14, 2008, the applicant testified that he attended at Stoufville Hospital, and was advised he had a stroke. He stayed overnight and on Saturday, March 15, 2008, the applicant’s wife advised management of his condition. He missed work on Saturday as a result.

13He returned to work on Monday, March 17, 2008. The applicant stated that the stroke affected his left arm and leg, he had difficulty walking and holding things using his left arm, but it did not affect his ability to work.

14With respect to the applicant’s stroke, the respondents agree that they were advised by the applicant’s wife that he was in hospital due to either a heart attack or stroke, but no medical documentation was ever provided to confirm this. In addition, when Mr. King visited the hospital on March 15, 2008, the hospital could not confirm that the applicant was a patient. As a result, Mr. King and his co-managers had some doubts whether the applicant had been in the hospital at all. In any event, when they asked the applicant if he needed any time off, he insisted that he was fine. Indeed, more than one witness testified that the applicant stated that all he needed was a change of diet. The respondents denied noticing any weakness in the applicant’s left limbs.

15I note that the applicant did not submit any medical documentation about his medical condition in advance of the hearing. He brought a binder of material to the hearing which he invited me to review which he claims confirms that he had a stroke. At the applicant’s insistence, I agreed to view the medical records regarding the hospitalization on March 14, 2008. These records indicate that there was considerable doubt whether the applicant that suffered a stroke.

March 17, 2008

16The applicant was given a verbal warning that he had improperly taken a used Camry home instead of his assigned demo, with the result that a client who had an appointment to view the car on Saturday, March 14, 2007, had to wait and ultimately did not buy it. At the time, he was given a verbal warning about maintaining proper contact with his clients.

17The applicant testified that Mr. Hamilton had told him he could take any car for a temporary demo and that he had been driving the used Camry for three weeks before the incident. In response, Mike Hamilton and Antony King testified that they would never have authorized anyone to drive a used car for three weeks because it was necessary to have the car on the lot for sale.

March 26, 2008

18On March 26, 2008, the applicant testified that he entered Mike Hamilton’s office in the morning and stated that a car that was to be delivered to a client had a scratch on it.

19Mike Hamilton testified that the applicant entered the office with Anthony King and when the applicant explained that the client was expected shortly and that the damage to the vehicle could not be repaired in that time, Mr. Hamilton asked why the applicant had not checked the vehicle earlier. The applicant stated that they could discuss it later. He testified that the conversation ended with the applicant tossing the keys to him stating, “You are the manager, deal with it.” Anthony King corroborated Hamilton’s version of events.

20I note that in the initial response filed to the complaint there was an alternate version offered, in which the applicant entered the office and met with Mr. King and Mr. Hamilton together. For reasons discussed below, this discrepancy is not significant.

March 27, 2008

21On March 27, 2008, a formal verbal team warning notice was issued to all sales persons about neglecting to follow policy and procedure about documenting money received. The applicant denies ever receiving money and not logging it.

22That same day, Anthony King asked the applicant to pick up a vehicle from another dealer. After an hour, he noticed that the applicant was still in the office. When asked why he was not picking up the vehicle, the applicant replied that he was waiting for the traffic to lessen. Mr. King again directed him to pick up the vehicle. Eventually someone else picked up the vehicle.

23The applicant’s version is that he did not refuse to pick up the vehicle; he merely stated he wanted to finish some paperwork first.

24The applicant received another verbal warning for insubordination as a result.

April 2, 2008

25On April 2, 2008, the applicant received a verbal warning due to his failure to follow proper procedure regarding a lease buy-out. The applicant disagrees that he did anything improper.

Termination on April 14, 2008

26On April 14, 2008, the applicant was called to a meeting at the end of the day with Mike Hamilton, Laura Moon and Anthony King. He was given a letter of termination signed by all three, which stated that he was being terminated for failure to follow policies and procedures.

Analysis

27The issue is whether the applicant’s medical condition or perceived medical condition played a role in the respondents’ decision to terminate his employment.

28There is some dispute whether the applicant suffered a stroke. The applicant made a WSIB claim alleging that work stress caused his stroke. In denying the claim, the WSIB reviewed the hospital admission records and concluded that the applicant had not suffered a stroke. I agree that the hospital records are ambivalent about whether the applicant had suffered a stroke. It is unnecessary for me to determine whether applicant experienced a stroke.

29On the applicant’s own evidence, he returned to work after a day’s absence following his hospitalization and testified that he required no form of accommodation to continue working.

30The timing of the documented work performance issues, immediately following the hospitalization raises a question whether the applicant’s medical condition or perceived medical condition played a role in the respondents’ subsequent work-related criticism and termination. The applicant had been employed as a Product Advisor since September 2005. While I recognize that the applicant had received a verbal warning in October 2007 from his previous manager, the length of time between this incident and the March 2008 incidents does not indicate an ongoing problem with the applicant until after March 14, 2008.

31While I find that the alleged work-related deficiencies were poorly documented and explained, I am not satisfied that the applicant’s hospitalization on March 14, 2008 played any role in the criticism and termination of the applicant’s employment.

32The evidence is convincing that the respondents were not entirely sure if the applicant had had a stroke or heart attack on the day in question at all. The applicant never requested any accommodation or gave the respondents any reason to have concern about his health.

33The evidence demonstrated that the corporate respondent had accommodated other employees without hesitation, including one employee with a serious heart condition who was provided with part-time work and allowed to work from home, an employee with a back injury who was provided with modified work duties and an employee who was granted an extensive leave of absence due to a grief issue.

34The respondents hired employees with acquired brain injuries though the Community Head Injury Resources Services of Toronto who required accommodation and kept them on as permanent employees.

35In my view, this evidence is compelling to dispel any inference that the respondent was trying to get rid of an employee who might be a potential liability or require accommodation.

36For these reasons, the Application is dismissed.