Callwood v. Franchise Management Inc., 2011 HRTO 1293

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darrell Callwood

Applicant

-and-

Franchise Management Inc. o/a 1726496 Ontario Inc. and Angelo Ianiri

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: July 6, 2011

Citation: 2011 HRTO 1293

Indexed as: Callwood v. Franchise Management Inc.

APPEARANCES

Darrell Callwood, Applicant ) Self-Represented

Franchise Management Inc. o/a 1726496 ) Tracy A. Kay, Counsel Ontario Inc. and Angelo Ianiri, Respondents )

1This is an Application filed April 27, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant self-identifies as a Black man and alleges that he was discriminated in employment by the respondents on the basis of race, colour, ethnic origin and creed.

Scope of the Application

2The applicant made broad unparticularized allegations spanning his entire period of employment. After hearing the applicant’s evidence-in-chief, I ruled that the following five areas were within the scope of the Application:

i. that he was demoted in March 2009 from the position of assistant store manager to shift manager;

ii. that he was paid less than other employees;

iii. that he was denied opportunities for promotion and training;

iv. that he was unfairly disciplined and ultimately terminated in April 2010; and

v. that he was subject to reprisals for filing a human rights complaint in April 2009.

3I refused to hear a broad allegation that visible minorities were generally underrepresented in positions of management on the basis that this Application was filed by the applicant on his own behalf and not on behalf of other employees generally. I also refused to hear his assertions about incidents that had occurred early in his employment as they were out of time.

The Chronology of Events

4I heard and accepted evidence establishing the following facts. Where the evidence was disputed, I explain why I preferred the evidence of some witnesses over others.

Demotion

5The applicant was hired by a predecessor corporation operating a Pizza Hut franchise in Oshawa East. In 2008, the respondent corporation took over several Pizza Hut franchises, including the Oshawa East store where the applicant worked. At that time the applicant was an assistant store manager.

6The new owners of the franchise advised each employee that they would continue to be employed by the new corporation at the same rate of pay and position at that time.

7In early 2009, the owners, Greg Walton and Dwight Fraser, began assessing the management structure of the stores acquired in 2008. They decided to bring the management structure into line with their policies at other stores they already owned. If a store brought in earnings of over $30,000 a month, the store was allotted two assistant store managers. If the earnings were less than $30,000, only one assistant store manager would be required. The corporation applied that policy to the newly purchased franchise stores. If the management structure needed to be realigned, it was done on the basis of seniority at that store. At this time, six employees were affected. One of them was the applicant. The Oshawa East store where the applicant worked earned less than $30,000 monthly, so the corporate respondent reduced the two assistant managers to one. There is no dispute that the applicant had less seniority than the other assistant manager (George Lucas).

8Angelo Ianari, the Area Manager, was advised by the owners to begin preparing the affected employees in his area for the anticipated changes. Mr. Ianari testified that he did not do a good job at this preparation, at first advising the applicant that everyone was taking a pay cut, and then shifting to the accurate version that the management structure was being realigned. This, not unnaturally, aroused the applicant’s suspicions.

9On May 16, 2009, the applicant was given a letter advising him that he was being demoted from assistant store manager to shift manager. He lost a guaranteed 45 hours per week and his salary was reduced from $13.00/hour to $11.50. The letter also advised that should the applicant choose not to accept this change, he would receive termination pay under the Employment Standards Act.

10The applicant was not happy with this decision. He believed that he was chosen to be demoted because he is Black. He asserted that all the affected employees were visible minorities. He believed that the demotions should have been done based on company-wide seniority, rather than store seniority.

11The evidence of Mr. Walton, one of the store owners, contradicts the applicant’s perception. One of the six employees who was let go in this restructuring process was not a visible minority. Also, as Mr. Walton pointed out, the fact that five of the six employees affected were visible minorities demonstrates equally that there were many visible minorities in positions of management at the level of assistant store manager.

12I accept the respondents’ explanation of how and why the six employees were selected to be demoted. This explanation refutes the applicant’s belief that his race or colour was a factor in the decision.

Pay

13The applicant’s salary was reduced upon his demotion from $13.00/hour to $11.50. He asserted that other shift managers were paid more than him and the only explanation could be race. However, the evidence of Mr. Walton was that new shift managers were paid at $.75/hour more than minimum wage, which was $10.00 at that time. So, if he had been a newly hired shift manager, he would have been paid $10.75. Instead, the respondent decided to offer him $11.50 in recognition of his years of service. In fact, Mr. Walton testified, and there was no evidence to the contrary, the applicant was the highest-paid shift manager at that time.

14In April 2009, when the corporation generally made decisions about merit increases, the company was experiencing financial pressures and issued a memo that there was a company-wide freeze on all wages. This was applied from top management down to every employee. In April 2010, when the company would normally apply the wage increase based on the 2009 performance, the applicant was terminated for performance reasons. Understandably, they did not perceive him to be deserving of a wage increase.

15I conclude that the evidence does not demonstrate any discrimination because of race or colour in the setting of the applicant’s wages

Discipline leading to Termination

16The applicant had received two disciplinary notices during his early years of employment, prior to the takeover by the present corporate respondent. I ruled that these incidents did not form part of the proceedings before me and therefore declined to hear evidence about whether the discipline imposed was justified or not. Suffice it to say that these incidents were on the applicant’s record. Although they were referred to by the respondents in imposing subsequent discipline, they were not a significant factor in their decision to impose subsequent discipline.

17The applicant’s more recent difficulties began in March 2009 when the respondents received complaints that the applicant had been rude or abrupt. The respondents’ uncontradicted evidence was that customer satisfaction was a key factor in the success of the operation, and therefore, customer complaints were treated very seriously. These complaints were received either online or by phone calls from customers. The complaints were referred immediately to the area manager whose duty it was to speak to the customer and determine if there was any basis for the complaint. In each case, Mr. Ianari telephoned the customer complaining and obtained information about the nature of the complaint. Where he was unable to reach the customer, the complaint did not form the basis of any discipline. In each case, the allegation was about alleged rudeness or abruptness by the applicant.

18On March 11, 2009, a customer sent an email complaining that the applicant had been rushed and unsympathetic when he called to complain that the pizza had arrived late and cold. On March 27, 2009, another customer sent an email alleging that the applicant had hung up on him when he called to make an order and was arrogant when the customer arrived to pick up the pizza and complain about being hung up on. Mr. Ianari met with the applicant about these complaints on April 23, 2009. Mr. Ianari testified that the applicant was defensive and denied any wrongdoing. That is consistent with the applicant’s evidence at the hearing. The applicant was subsequently issued a written warning about this incident. He refused to sign the warning.

19In September 2009, Mr. Ianari received another customer complaint. He could not reach the individual, and no action was taken in respect of this incident.

20In January 2010, the respondent received three complaints about the applicant and proceeded to take action on two of them. On January 1, 2010, a customer complained that she had called before the store opened and was told abruptly to call back. When the customer called back, she stated that the applicant was in a rush and very short with her.

21On January 19, 2010, a customer complained that the applicant had been rude. A third incident occurred on January 21, 2010, but Mr. Ianari could not reach this customer and did not rely upon this incident.

22On February 5, 2010, Mr. Ianari met with the applicant about these two incidents. The applicant denied any wrongdoing and mentioned that he believed the customer who complained on January 19, 2010, lived on his street and may have a bias against him. With respect to the January 1, 2010 incident, the applicant mentioned that he hadn’t been feeling well that day which is why he might have appeared to be brief with the customer.

23Mr. Ianari was not satisfied that the applicant was prepared to alter his manner, and decided to impose a two-day suspension. A letter advising of the suspension was given to him. This letter advised the applicant that any further incident could give rise to termination.

24The final incident occurred on March 22, 2010. A customer who was using coupons to pay for a large purchase complained that the applicant asked how she had obtained the coupons and stated, “someone must have fucked up.” She also alleged that the applicant rudely tossed the food on the counter.

25When Mr. Ianari approached the applicant to discuss this incident, the applicant denied making the comment or rudely tossing the food. He asked Mr. Ianari to speak to others in the store to confirm his version of events. Mr. Ianai did speak to one colleage. This colleague minimized any wrongdoing on the applicant’s part. Despite this, Mr. Ianari concluded that something had occurred to annoy the customer and decided action was needed. He consulted with the owners, and they jointly determined that termination was an appropriate response.

26The applicant asserted that he did not receive due process from the respondents, because they did not give him the detailed complaint (instead merely summarizing the complaint) and that the company did not interview other employees who may have been present. The respondents do not deny that the applicant was not provided with the actual complaint (in order to keep the complainant’s name and address confidential) but received sufficient information to alert him to the incident. Further, Mr. Ianari did not feel that it was necessary to interview other witnesses, given that the applicant did not deny having spoken or interacted with the complainant, but merely denied having been rude. My task is not to assess the justness of the respondent’s investigation process. My only authority is to determine whether discriminatory factors were at play. If the investigatory process was arbitrary and unjust, that might give rise to an inference that other factors, possibly discriminatory, were at play. This is not the case here. The respondents’ investigatory process, while not of the level of a police investigation, was not arbitrary. In each case, the customer was spoken to and the applicant was given an opportunity to present his side of the story. There was nothing so irregular in the process as to give rise to an inference that the applicant was being targeted because of his race.

27I conclude that the progressive discipline and ultimate termination were imposed because of repeated customer complaints, a lack of suitable acceptance by the applicant of any wrongdoing and a lack of faith by the corporate respondent that the applicant intended to try to improve his customer service skills. I conclude that the applicant’s race or colour played no role in the decision to discipline and subsequently terminate the applicant’s employment.

Promotion and Training Opportunities

28The applicant noted that he was not given an opportunity to attend a workshop for training employees for leadership positions. He also asserted that he was not given an opportunity for promotional opportunities which arose in 2009 and 2010. He pointed out that the two employees who were promoted, J.S. and D.M., were not visible minorities. The area manager and owner both testified that promotions were determined based on the opinion of the area manager. The area manager, Mr. Ianari, testified that in both cases, the individuals had been identified as potential promotion candidates, and were well-liked and respected in their stores. The applicant correctly pointed out that without a formal application process, the informal appointment of employees by the area manager left open the potential for discriminatory biases to creep into the process. I acknowledge that possibility. However, without more evidence, the mere assertion of that possibility is not sufficient to shift the onus to the respondents to prove that discriminatory grounds were not a factor in the informal promotional process. The available evidence indicates that the majority of the assistant manager and managerial positions within Mr. Ianari’s authority as area manager were held by visible minorities. I reject the applicant’s assertion that he was not given an opportunity for promotion because of his race. On the contrary, the evidence as discussed above indicates that the applicant had received numerous customer complaints at this time, and rather than being considered for promotion, he was being actively coached and disciplined. It is not surprising therefore that he was not invited to attend career promotional training.

Reprisal

29The applicant asserts that the above disciplinary measures, up to and including termination, were a direct result of the applicant having filed a human rights application in April 2009. The applicant filed this first complaint after the demotion asserting that the demotion was a form of discrimination. I have dealt with that allegation above. The applicant asserts that the many customer complaints and discipline imposed upon him were because he had filed a human rights complaint. There was a suggestion from the applicant that the complaints were “manufactured” or “encouraged” by Mr. Ianari, who was named as a respondent in the original application. The evidence before me does not support this assertion. The complaints did not originate directly to Mr. Ianari, but in each case were sent first to a corporate head office and then forwarded to Mr. Ianari. The suggestion that Mr. Ianari encouraged these people to complain is speculative and incredible. It is unclear how Mr. Ianari could have known these people had interacted with the applicant on the days in question.

30The applicant suggested that it was inappropriate for Mr. Ianari to manage and supervise him once the human rights complaint was filed. He suggested that Mr. Ianari, having been named as a personal respondent, would hold animus against him. Certainly that is a possibility. It was open to the respondent to vary its supervisory structure in light of the first Application, but it was not required to do so. Understandably, I have scrutinized Mr. Ianari’s supervisory actions for any hint of bias in light of the human rights Application. I am unable to conclude that Mr. Ianari’s decision to recommend disciplinary action and the corporate respondent’s decision to follow his recommendation were motivated even in part by the filing of the first Application. On the contrary, the company took pains to follow its system of progressive discipline, so as to avoid giving the appearance of taking reprisal action.

31The applicant relied heavily upon recordings he made of various meetings with Mr. Ianari and other employees. I listened to the tapes and admitted them into evidence. They were extremely difficult to decipher and offered little support of the applicant’s assertion. The most relevant conversation occurred between the applicant and Mr. Ianari on April 23, 2009, when Mr. Ianari was counselling the applicant with respect to the March 2009 complaint. Mr. Ianari states that he respects the applicant’s right to stand up for himself. At one point in the conversation, the applicant apparently mentions having hired a lawyer and Mr. Ianari states something to the effect of “you don’t think the second you start throwing the word lawyer around…” and later, “once you mention legal that gets their dander up…”

32The applicant points to this conversation as proof that the respondents were out to get him because he had retained a lawyer.

33These words are ambiguous and the applicant chose to interpret them as a threat. In my view, having listened to the tape and the tenor of the conversation, I am not persuaded that the conversation indicated that Mr. Ianari was threatening the applicant with punishment for having retained a lawyer. He was simply advising the applicant that the respondents were not happy with the introduction of a lawyer into the proceedings. That is so self-evident that the mere statement of it is not suspicious. The denial of such an obvious reaction would be more suspicious. Further, at that stage, the applicant’s threat to hire a lawyer appeared to be related to his feeling that he had been improperly demoted, and possibly constructively dismissed. On April 6, 2009, the applicant sent what appeared to be a legal opinion setting out that an employee who has been “constructively dismissed” may seek damages for failure to provide reasonable notice. Thus, any reaction to the lawyer comment was clearly a response to this letter threatening a wrongful dismissal action.

34As it turns out, the applicant instead filed a human rights application. The filing of a human rights application, while giving rise to the distinct possibility that a respondent might utilize minor transgressions to punish an employee, does not give an employee immunity against justifiable discipline and termination for performance issues.

35On evidence in this case, as described above in the section about “discipline”, I am satisfied that the applicant’s customer service declined considerably following his demotion in May 2009, leading to numerous customer complaints. The applicant’s response to the respondents’ attempts to coach him was flat denial of any wrongdoing. After several incidents and a refusal by the applicant to acknowledge wrongdoing, the respondents determined that termination of employment was the appropriate course.

36I am not here to assess whether there was “just cause” in the common law sense for dismissal. My role is to determine whether a prohibited ground (race or colour or reprisal) played a role in the termination. I have concluded that they did not.

37The Application is dismissed.