HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Cooke

Applicant

-and-

Trimaster Manufacturing Inc.

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: March 1, 2010

Citation: 2010 HRTO 455

Indexed as: Cooke v. Trimaster Manufacturing

APPEARANCES BY

Robert Cooke, Applicant ) On His Own Behalf

Trimaster Manufacturing Inc., Respondent ) Gary Cowan,

) Representative

1This is an Application filed June 11, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on July 25, 2006 and abandoned upon filing this Application with the Tribunal.

2The hearing was conducted on February 3, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(5) applications proceed in an expeditious manner. The following witnesses gave evidence: Robert Cooke, the applicant; and Gary Cowan, Director of Manufacturing, for the respondent.

Nature of the Dispute

3The applicant claims discrimination in employment on the basis of disability pursuant to sections 5 and 9 of the Code against the respondent, Trimaster Manufacturing Inc. The applicant alleges that his request for light duties following a workplace injury was a factor in the respondent’s decision to terminate his employment during his probationary period.

DECISION

4The Application is upheld. What follows are my reasons.

FACTS

5The respondent carries on the business of manufacturing custom parts in Guelph Ontario.

6The applicant commenced employment with the respondent on April 17, 2006 as a machine operator. His employment was subject to a 90-day probationary period.

7Time sheets were completed on the applicant for every shift that he worked and the number of parts he produced was recorded.

8The applicant concedes that on one occasion, his director supervisor, Joe Robson, advised him that his production rate was low. He does not recall when this occurred.

9On Friday, June 23, 2006, the applicant notified Gary Cowan (“Cowan”), the director of manufacturing, that he had pins and needles in his arms and hands, and that he wanted to see his doctor. The applicant advised Cowan that he believed his condition was work related. The applicant had notified Joe Robson of his injury a few days before.

10The applicant saw his doctor on Monday, June 26, 2006.

11Prior to coming in for his afternoon shift on Tuesday, June 27, 2006, the applicant called Cowan and told him his doctor had put him on light duties for two weeks. Cowan asked the applicant to come in to see him.

12The applicant went to Cowan’s office on June 27, 2006. At that time, he was asked to complete an employee accident form for benefits from the Workplace Safety and Insurance Board (“WSIB”). Cowan then proceeded to terminate the applicant’s employment. On the Termination Report dated June 27, 2006, Cowan stated he terminated the applicant’s employment during the three-month probationary period because there was “no suitable work at this skill level”.

13The respondent completed the Employer’s WSIB Report on June 29, 2006. The respondent stated the accident occurred on June 16, 2006 and was reported to Joe Robson, supervisor, on June 19, 2006. The respondent stated further the applicant returned to his regular job. The respondent did not indicate on the form that the applicant required modified work.

14The applicant obtained new employment at the same salary within one week following his termination. He left this job approximately two months later to return to the London area to be near his family in St. Thomas.

15The applicant did not pursue his application for WSIB benefits.

Analysis

16Disability is defined in the Code to include “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997”. The applicant had a disability under the Code because on the date of termination, he was completing forms to make a WSIB claim. The respondent was aware of this claim because it provided the WSIB forms to the applicant.

17It is a fundamental principle of human rights law that if a prohibited ground of discrimination is but one of the reasons for a decision or action, there is prima facie discrimination. A reasonable inference that the applicant’s disability was a factor in the decision to terminate his employment arises from the fact that immediately upon being notified of his request for light duty work because of a workplace injury, Cowan called the applicant into his office and terminated his employment.

18Cowan stated the applicant was terminated because his production rate was low. He stated the company set a standard for production which required employees to be at a 90% production rate. The applicant’s average production rate was 63%.

19Cowan stated further that the applicant’s production was reviewed after two months of employment, around the middle of June 2006. He was unable to provide any documentation noting the date of this assessment and was unable to explain why he waited until June 27, 2006 to terminate the applicant’s employment.

20I accept the respondent had a non-discriminatory reason for terminating the applicant’s employment, namely his low rate of production. However, the respondent did not act on this reason until the applicant made his request for light duty work following a workplace injury. In other words, the impetus to terminate the applicant’s employment was his request for light duties and his corresponding WSIB claim. I therefore find that the applicant’s disability was one of the factors in the decision to terminate his employment contrary to s. 5(1) of the Code.

21All employees in Ontario, including probationary employees, are entitled to the Code’s protections. While an employer can terminate an employee during a probationary period without notice, it cannot do so for discriminatory reasons. In this case, the respondent appeared to be unaware that the Code extended to probationary employees and relied solely on its employment law right to terminate an employee without notice during the probationary period.

Compensation

22The applicant is entitled to lost wages arising out of the infringement of the Code. In this case, the applicant obtained a comparable job in Guelph within one week of his termination and therefore did not incur any wage loss. The applicant left this job to return to the London area to be near his family in St. Thomas. Upon his return to the London area, the applicant was unemployed for approximately four months.

23The wage loss experienced by the applicant when he returned to St. Thomas was not the result of the respondent’s discriminatory conduct. It occurred because the applicant made the decision, for personal reasons, to return to the London area. Accordingly, the respondent is not liable for any wage loss following the termination.

24The applicant is entitled to be compensated for the infringement of his right to be free from discrimination. The following factors are generally considered in determining the quantum of damages of this nature (Sanford v. Koop, 2005 HRTO 53 at para. 35):

• Humiliation experienced by the complainant

• Hurt feelings experienced by the complainant

• A complainant’s loss of self respect

• A complainant’s loss of dignity

• A complainant’s loss of self esteem

• A complainant’s loss of confidence

• The experience of victimization

• Vulnerability of the complainant

• The seriousness, frequency and duration of the offensive treatment

[25] The applicant gave no evidence about the impact of the termination. He was terminated during his probationary period and obtained new employment within one week. While termination of employment is by its very nature a significant event, it is less so during a short-term probationary period when there is a reduced expectation of permanent employment because of performance problems. In these circumstances, an award of $5,000.00 is appropriate.

ORDER

[26] The respondent is ordered to pay the applicant the following amount within 30 days of this Decision:

The sum of $5,000.00 for the loss arising from the infringement of his rights under the Code plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, R.S.O. c. C.43 from the date of the Application.