Goad v. 1681078 Ontario Inc., 2010 HRTO 817

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenny Goad

Applicant

-and-

1681078 Ontario Inc. o/a KFC/Taco Bell Cambridge

and Naveed Alam

Respondents

DECISION

Adjudicator: Eric Whist

Date: April 14, 2010

Citation: 2010 HRTO 817

Indexed as: Goad v. 1681078 Ontario

Appearances

Kenny Goad, Applicant ) Self-represented

1681078 Ontario Inc. )

o/a KFC/Taco Bell )

Cambridge and ) Ameer Lakha, Counsel

Naveed Alam, Respondents )

)

1The applicant, Kenny Goad, alleges in his Application that the corporate respondent, 1681078 Ontario Inc. o/a KFC/Taco Bell Cambridge, and the personal respondent, Naveed Alam, discriminated against him in employment on the basis of disability contrary to section 5 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). At the hearing the applicant raised the further issue of having been the subject of reprisal or the threat of reprisal contrary to section 8 of the Code although this ground of discrimination was not identified in his Application.

2At the hearing I heard testimony from the applicant, the personal respondent, and two other employees of the corporate respondent, Faisal Hassan, the Director of Operations and Ameer Lakha, the Managing Director.

BACKGROUND

3The applicant began working at one of the corporate respondent's restaurants, the KFC/Taco Bell outlet in the Cambridge Mall, in June or July of 2008, primarily preparing and cooking food. On March 7, 2009 he injured his left wrist. He was diagnosed with a broken wrist and fitted with a cast. This was not a workplace injury. The applicant alleges that when he called his restaurant manager, the personal respondent, about returning to work he was told that he would have to be off the schedule until his cast was removed notwithstanding that the applicant told the personal respondent that he was capable of returning to work and that he wanted to continue to work for financial reasons.

4The applicant alleges that when he had his cast removed later in March, 2009 he contacted his employer in order to return to work but he was not put back on the schedule as promised. He alleges that when he finally was put on the schedule he was only given one shift a week whereas prior to his injury he regularly worked two to three shifts a week.

5The applicant contends that the respondents' refusal to accommodate his return to work while his wrist was in a cast was discriminatory. He contends that the respondents' subsequent failure to promptly put him back on the schedule and the respondents' decision to reduce his hours of work were acts of reprisal. He alleges these acts were done in retaliation for his having threatened to file an Application with the Tribunal after being refused the opportunity to return to work while wearing a cast. The applicant states that he quit his job in October 2009 in order to take a job with more available hours.

6The respondents submit that when the applicant injured himself he contacted the personal respondent to say that he would be taking time off work because of his injury. The respondents submit that in response the personal respondent told the applicant to return to work when he felt he had recovered from this injury. The respondents deny having told the applicant that he could not work with a cast. The respondents state that there were non-discriminatory reasons for why the applicant was not immediately returned to the schedule the most significant being that the applicant was scheduled to go on holidays. The respondents submit that the later reduction in the applicant's hours of work was related to declining sales and the limited hours available to part-time staff and that the applicant's reduced hours were not out of line with the hours of other part time staff.

DECISION

7I accept as credible the applicant's testimony that he was told in a telephone conversation with the personal respondent, not to return to work until he was no longer in a cast notwithstanding his expressed interest in returning to work. I find that the applicant would have been able to work with a cast. Consequently, I find that the respondents did discriminate against the applicant after his injury by failing to meet their procedural and substantive duties to accommodate the applicant after his injury. This is a violation of section 5 of the Code. However, I do not find that the applicant's subsequent difficulties in returning to work and ultimately being given reduced hours are related to any reprisal or retaliatory action by the respondents. I accept that there are other non-discriminatory explanations for why these things occurred. Consequently, I find there has been no violation of section 8 of the Code.

EVIDENCE

The Telephone Call

8The applicant injured his wrist on March 7, 2009. On the same day he visited a hospital where he was diagnosed with a broken wrist and was fitted with a cast. The applicant was fitted with a temporary cast and told that it would be replaced in two weeks time with a more permanent cast.

9Significantly, according to the applicant, this was not the first time he had injured a wrist and required a cast while employed. The applicant testified that when he had worked at the KFC/Taco Bell restaurant on Eagle Street, prior to his working for the respondents at the KFC/Taco Bell outlet in the Cambridge Mall, (it appears that these two KFC/Taco Bell franchises are owned by different corporate entities) he injured his wrist and was in a cast. The applicant testified that after this earlier injury he continued to work with a cast. He testified that his work was slightly modified. He testified that he could not continue to work on the hot line (preparing hot food) and he could not wrap tacos because he did not have sufficient movement in his injured wrist. He stated he spent more time taking customer orders.

10The applicant testified that he called the personal respondent, his direct supervisor, to tell him of his injury on May 7 or May 8. The applicant testified that he told the personal respondent that he wanted to continue to work while his cast was on. He testified that during this telephone call he was repeatedly told by the personal respondent that the applicant could not work with a cast because there would be a problem if someone from head office was to come by the restaurant and see the applicant working with an injury.

11The applicant testified that the personal respondent was apologetic - repeatedly telling him he was sorry about the fact that he could not allow the applicant to return to work but that he could not do so because of the concerns head office would have. The applicant testified that the personal respondent continued to maintain this position even when the applicant suggested that he could return to work and, if need be, take customer orders, prepare orders and clean rather than prepare and cook hot food. The applicant testified that he told the personal respondent that he had been accommodated at his previous job with Taco Bell when he had had a similar injury. The applicant testified that he was told by the personal respondent that he would be placed back on the schedule after his cast was removed. The appellant testified that he found this telephone conversation upsetting. According to the applicant the conversation was brief, no longer than 5 minutes.

12The personal respondent's account of this conversation was decidedly different. He testified that the applicant telephoned on March 7 or 8 to say he had been injured and could not work and that in response the personal respondent had simply told him that when the applicant had recovered and was able to work he should return to work. He testified that the applicant had told him that he had injured his hand but had made no mention of being in a cast or that he was ready to return to work. The personal respondent stated that the conversation took less than a minute.

The Delays in Returning the Applicant to Work and the Reduction in his Hours

13The applicant initially testified that he had his cast on for two weeks and that when he had returned to have a permanent cast put on he was told that his wrist was not, in fact, broken and that he would not require any cast. The applicant testified that he then called his workplace and spoke either to the personal respondent or another manager, Moon, (sp) to say that he now wanted to return to work and that he wanted to be put back on the schedule. The applicant initially testified that this was near the end of March.

14The applicant stated that when he did not hear from the personal respondent he decided to speak to a senior employee, Merlyn, (sp) who said she would speak to the personal respondent so that the applicant would be put back on the schedule. The applicant stated that when he continued not to be scheduled for work he contacted Faisal Hassan, the Director of Operations. According to the applicant Mr. Hassan told him that he would see that the applicant was returned to the schedule. The applicant testified that when he was placed back on the schedule - it appears this was around April 14, 2009 - it was for a single shift. Thereafter, the applicant was scheduled for a single shift per week, a reduction from the two to three shifts he had previously been given per week.

15The personal respondent testified that he spoke to the applicant on March 23 or 24 in person about being put back on the schedule. The personal respondent stated that this was his first contact with the applicant since their telephone conversation on March 7 or 8. The personal respondent testified that the conversation took place with the applicant and the applicant's father at the KFC/Taco Bell outlet in the Cambridge Mall and that the applicant and his father not only raised the issue of the applicant being put back on the schedule but raised the concern that the respondents had discriminated against the applicant by not providing him work when he was in a cast. The personal respondent testified that he was told that the applicant might go to the Tribunal to file an application.

16The personal respondent testified that staff were scheduled in advance for two week periods and that when he then tried to put the applicant back on the next schedule he determined that the applicant had asked for vacation for the beginning of April and that accordingly he could not be scheduled. The personal respondent testified that he personally stopped scheduling staff after March 28 which is when the personal respondent left the company for an extended leave of absence.

17Mr. Hassan testified that sometime in the last two weeks of March he received a telephone call from the applicant's father raising several concerns including the concern that the applicant was not being scheduled for work. Mr. Hassan testified that he contacted the personal respondent asking that the applicant be placed back on the schedule. Mr. Hassan testified that the personal respondent then told him that the applicant could not be scheduled for the next two weeks due to the applicant's vacation request.

18The applicant's shifts were reduced upon his return from vacation to one per week. This fact is not in dispute. The respondents argued that this was because of business pressures related to a reduction of sales and a need to limit the hours of part time staff. Mr. Lakha presented financial documents for the corporate respondent to indicate that sales had fallen at the Cambridge Mall outlet and that, accordingly, labour costs had to be reduced (as they were capped at a percentage of sales). Mr. Lakha testified that corporate respondent had a further need to provide a certain number hours for managers and full time staff with the result that there were limited hours available for part time staff. According to Mr. Lakha of the 185 staff hours allocated per week for the Cambridge Mall outlet 150-155 hours were allocated to managers and full time staff and 30-35 hours for part time staff.

19Mr. Lakha went on to testify that the applicant's one shift per week was not out of line with the other 9 part time staff. In support of this contention he provided payroll documents for the period January 1, 2009 to October 13, 2009 showing the year-to-date accumulated hours of all staff at the Cambridge mall staff including the 10 part time staff. Part time staff hours were:

Part-time staff person #1 387.48

Part-time staff person #2 233.94

The applicant 197.12

Part-time staff person #4 166.52

Part-time staff person #5 102.48

Part-time staff person #6 65.80

Part-time staff person #7 64.57

Part-time staff person #8 63.14

Part-time staff person #9 31.02

Part-time staff person #10 26.94

20The applicant acknowledged that he was told that his hours had been reduced for business reasons but that he remained sceptical because he believed that there were part time persons getting more hours than he was and that he believed that the reduced hours were a continuation of the unfair treatment he received when he was not promptly returned to the schedule. He testified that he believed this was all part of an intention by the respondents to retaliate against him and his father for threatening to go to the Tribunal.

ANALYSIS

The Law

21The provisions of the Code relevant to the Application are:

Section 5 Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

Section 9 No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part

"disability" means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; ("handicap")

Section 17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

Section 17(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

Section 17(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations

Section 8 Every person has the right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act without reprisal or the threat of reprisal for so doing so.

22The issue of whether the applicant's injury constitutes a disability was not contested at the hearing. I am satisfied that the applicant's injury does meet the definition of a disability as contained in section 10 of the Code which defines a disability to include "any degree of physical disability….caused by bodily injury".

The Telephone Call

23The telephone conversation is the key incident in relation to the issue of whether the applicant was discriminated against because of a disability. Did the respondents fail to consider the applicant's return to work and ultimately deny a return to work because of a disability or did the applicant communicate that he was an injured worker who was choosing to remain off work because of his injury until he later decided to return? What took place during this critical conversation? Whose version of events is more credible?

24In determining credibility, I follow the Tribunal's usual practice of relying on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its 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…

25In having considered the evidence before me I find the applicant's account of the telephone conversation to be credible and more probable than the personal respondent's account. The applicant, who was clearly nervous and emotional, nonetheless provided an unhesitating account that was direct, internally consistent and consistent with other evidence before me. The applicant's description of the telephone conversation contained persuasive detail. For example, the applicant testified that the personal respondent said he was sorry but that he could not let the applicant return with an injury because of the concerns of upper management. What made this particularly credible was the applicant's testimony that every time the applicant made an argument for why he should be allowed to return to work the personal respondent would apologetically repeat that management would have concerns. I find this detailed description of the personal respondent's response believable, that he defensively responded to the applicant's requests by repeatedly relying on one point. Importantly, the applicant was also consistent in describing how the telephone conversation took place and all of what was said whenever he described the telephone conversation during the course of the hearing.

26I find that the applicant's account of the telephone conversation was also consistent with other evidence before me. This included the applicant's account of his previous job in a Taco Bell restaurant at which time he claimed he suffered a similar injury to his wrist but was able to continue working. I find the evidence about the applicant's previous job credible based on its consistency and telling details such as the applicant's description of being unable to roll tacos because of his cast when he returned to work after an injury. This other testimony lent credibility to the applicant's claim that he had told the personal respondent during his telephone call that he had previously worked with a cast and had suggested to the personal respondent that he could perform alternate work, if need be. I would further note that the applicant's account of the telephone conversation suggested that he had been both emotional and persistent in his discussion with the personal respondent. This would be consistent and understandable if he had had a previous experience in which had had been accommodated when wearing a cast and was finding the refusal to allow him to work unreasonable.

27The applicant also repeatedly and credibly stated throughout his testimony that he had a strong, almost desperate interest in making money in order to attend college. This lent credibility to his claim that he was keen to work and that during his telephone conversation with the personal respondent he had asked for the opportunity to return to work.

28By contrast, the personal respondent's brief testimony regarding the telephone call was not persuasive. While it is fair to say that the brevity of the personal respondent's description of the call may be related to the fact that he maintained that the conversation was, itself, brief and straightforward it was nonetheless problematic. Most significantly was the personal respondent's claim that the applicant never stated during their conversation that his injured arm was in a cast. I do not find this believable. If the applicant was asking for time off from work because he had an injury, as the personal respondent maintained the applicant did, in my view, the applicant would likely have indicated the relative seriousness of the injury by saying he was in a cast. Interestingly, the personal respondent later testified that if the applicant had said he was in a cast and wanted to work there would have been no problem with his returning to work.

Duty to Accommodate

29When a respondent is notified that an individual has a disability the respondent has a duty to determine whether or not the respondent can accommodate the individual. The duty to accommodate has two aspects, procedural and substantive (see Grzesiak v. DOT Benefits, 2008 HRTO 206 at para. 100). In the present case, when the applicant identified that he was injured but prepared to work and went on to indicate that he could do his job, or possibly alternate work if need be, the respondents had a duty to consider whether they could accommodate the applicant's return to work. They did not, rather immediately determining that the applicant should not work because of his injury. In my view this is a failure to meet the procedural duty to accommodate the applicant. The procedural duty to accommodate involves obtaining relevant information about the employee's disability and considering and exploring options that may be available to accommodate the disability up to the point of undue hardship. This was not done. This failure to accommodate is a violation of the Code.

30I am of the further view, based on the evidence before me, that the applicant could have returned to work wearing a cast. The applicant testified that he had successfully done so in a previous job (also with a KFC/Taco Bell) and the personal respondent indicated that such an accommodation could have been made. There may have been a need to modify the applicant's job duties but I heard no evidence to suggest that this could not have been done. In my view there was, in this case, a substantive failure to accommodate. This is a violation of the Code.

The Delays in Returning the Applicant to Work and the Reduction in his Hours

31The issue is whether the respondents delayed the applicant's return to work and subsequently reduced the applicant's hours in reprisal for stating that he was considering filing an application with the Tribunal.

32The testimony about the applicant's return to work was somewhat confusing. First, there was a lack of clarity regarding the alleged dates of events. The applicant testified that after his cast was removed he called his employer and spoke to the personal respondent or the other manager, Moon. The applicant testified that his cast was removed two weeks after his injury. This would be March 21. He also testified that he believed he telephoned the respondents on March 16 about returning to work. The personal respondent testifed that his first contact with the applicant after his cast was removed was when the applicant came to the restaurant with his father on March 23 or 24.

33I am of the view that if the applicant telephoned on March 16 as claimed he did not speak to the personal respondent. The applicant, who was generally very categorical about his evidence, rather hesitatingly suggested he was not sure whether he spoke to the personal respondent or to the other manager, Moon, when he telephoned about being put back on the schedule. In my view, he may well have spoken to Moon which might explain the discrepancies as to when he and the personal respondent first spoke. More importantly, the applicant and the personal respondent both agree that it was not until the conversation in the restaurant, which the personal respondent suggests was March 23 or 24, that the applicant first suggested that he might go to the Tribunal. Consequently, I cannot conclude that any possible failure to put the applicant back on the schedule following an earlier telephone call, possibly on March 16, can be said to be a reprisal by the respondents for the applicant threatening to go to the Tribunal.

34I am of the further view that the probable sequence of events is that the personal manager did not look to put the applicant back on the schedule until after May 21 when his cast came off and at that time there was the complicating fact that the applicant had requested vacation for the beginning of April. I am not satisfied that there was any retaliatory intent to deny the applicant, who it was agreed was a good employee, an opportunity to return to work.

35I also do not find the reduction in the applicant's hours to be retaliatory in nature. The respondent provided a reasonable non discriminatory explanation for their conduct persuasively arguing that there were not many hours available to part time staff and that the applicant received a reasonable proportion of these hours that were assigned. Moreover, there was nothing in the evidence before me to suggest that the respondents had an interest in exacting a revenge or wanting to reprise against the applicant.

36In my view what happened in this case is that the applicant asked to continue to work shortly after suffering an injury that required he have a cast. The personal respondent, not clear as to his responsibilities under the Code and concerned about how senior management would respond reacted abruptly and inappropriately when he told the applicant to not return until his cast was removed. I am of the view that this was an error made by a middle manager unaware of the requirements of the Code. It was also clearly discriminatory as the respondents did not appropriately consider their duty to accommodate the applicant, who would, in my view, have been able to work with a cast. I do not see that the respondents then took any retaliatory action.

Remedies

37Section 45.2 of the Code sets out the Tribunal's remedial powers:

45.2 (1) 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:

1. 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.

2. 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.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

Lost Wages

38Where a breach of the Code has been found, an applicant is entitled to monetary compensation for loss of wages. The applicant testified that he was out of work from May 7 to when he had his cast removed and then continued to be without work until the beginning of April at which time he went on vacation. It appears that when he returned from vacation he began working one shift a week.

39I am satisfied that if the applicant had not been discriminated against he would have worked his regular shifts for the period he was in a cast. Moreover, he would have been able to work during the period following the removal of his cast until he went on holiday because he would not have had the problem of having to get back on the schedule. I accept the applicant's calculation as presented in his Application that he missed a total of 46.75 hours of work. The applicant earned $8.90 an hour. Consequently I calculate the applicant's lost wages to be $416.75

Monetary Compensation for Loss Arising out of the Infringement

40Under section 45.2 (1) 1., monetary compensation is also awarded for injury to dignity, feelings and self-respect. The exercise of quantifying the impact of discriminatory treatment on a person is not a precise science. In ADGA Group Consultants Inc. v. Lane, 2008 39605 the Divisional Court held that the Tribunals should consider the following factors when awarding general damages: humiliation; hurt feelings; the loss of self-respect; dignity and confidence; the experience of victimization; vulnerability; and the seriousness of the offensive treatment.

41After careful consideration of all the circumstances I award $1,500 to the applicant to compensate for the loss arising out of the infringement of the Code and the injury to his dignity, feelings and self-respect.

42The applicant was clearly hurt and frustrated by the treatment he received. He compared it to the treatment he received from his previous employer where he was accommodated after injuring himself. He testified about the frustration he felt when he attempted to argue that he was being unfairly treated and was ignored. He credibly testified about how upset he was by the treatment he received and at a time he was desperately trying to save money for school. Clearly there was an injury to his dignity, feelings and self respect. At the same time the infringement of the Code involved a single discriminatory act that had a short term impact on the applicant's employment. I find that $1,500 is an appropriate remedy under these circumstances.

Remedies for Future Compliance

43The Tribunal is empowered to direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote future compliance with the Code. However, no remedies for future compliance were requested and I am not, given the circumstances of this case, ordering any such remedy.

ORDER

44Having found that 1681078 Ontario Inc. o/a KFC/Taco Bell has violated the applicant's rights under section 5 of the Code to equal treatment on the basis of disability the Tribunal orders:

(a) The respondents are jointly and severally liable to pay $1,500 to the applicant for violation of his inherent right to be free from discrimination, and for injury to his dignity, feelings and self-respect.

(b) The corporate respondent is liable to pay the applicant $416.75 for loss of wages.

(c) The respondents shall pay the applicant pre-judgment interest on the lost wages from April 1, 2009. The respondents shall pay the applicant post-judgment interest on any accumulated principal and interest from the date that is 30 days after the date of this Decision.