HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hans Harry der von Felix
Applicant
-and-
BlueGenesis.com Corporation / Hostopia.com,
Peter Kostandenou, Allison Pantin and Bill Oswin
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as : Felix v. BlueGenesis.com Corporation / Hostopia.com
APPEARANCES BY
Hans Harry der von Felix, Applicant ) Self-Represented
BlueGenesis.com Corporation / ) Natalie Zinman, Counsel and
Hostopia.com, Peter Kostandenou, ) Michael Comartin, Student
Allison Pantin and Bill Oswin, Respondents )
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on September 14, 2007.
2The applicant alleges that he experienced harassment and discrimination in employment because of his race, colour, ethnic origin and disability contrary to ss. 5 and 9 of the Code and reprisal contrary to ss. 8 and 9 of the Code, arising out of events he experienced while working at the respondent corporation (“Hostopia”) from and after December 2006 and up to the ultimate termination of his employment on May 15, 2007.
3The hearing in this matter was held on July 30 and December 8, 2010, and on March 2, 2011, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. I heard from the applicant, the three personal respondents, and an additional respondent witness, Amanda McMurdo.
Background
4Hostopia provides internet Web services that enable small and medium-sized businesses to establish a Web presence, generate leads and increase their sales on-line. The company’s customers are communications service providers, including telecommunication carriers, cable companies, internet service providers, domain registrars and web hosting service providers. These customers purchase Hostopia’s services on a wholesale basis and then re-sell these services under their own brands to small and medium-sized businesses.
5Hostopia operates call centres in order to provide technical support for its customers. The events at issue in this case took place at the company’s call centre in Mississauga.
6The personal respondent Peter Kostandenou is currently the Chief Operating Officer of Hostopia, having commenced his employment there in November 2006. At the material time, Mr. Kostandenou was the Director of Customer Care. The personal respondent Alison Pantin at the material time was the Office and Human Resources Manager, and is no longer employed there. The personal respondent Bill Oswin at the material time was the Manager of Call Centre Operations, having been promoted to this position effective January 1, 2007. Mr. Oswin also is no longer employed by Hostopia.
7The applicant self-identifies as being Haitian and of African descent. In May 2006, he was selected by Hostopia to join its technical support training program, which ran from May 29 to June 23, 2006. Following successful completion of this training program, the applicant was offered a position at Hostopia as a Bilingual Technical Customer Care Representative (also referred to as an “agent”) starting June 26, 2006, subject to a three-month probationary period.
8In this position, the applicant worked in the company’s Mississauga Call Centre reporting to a team coach and a supervisor, who reported to the Manager of Call Centre Operations, who in turn reported to the Director of Customer Care.
9The applicant successfully passed his probationary period and became a full-time permanent employee. The applicant testified that he experienced no issues or problems with his employment at Hostopia from the time he commenced his training until sometime in December 2006.
Allegations re Team Coach
10In December 2006, Amanda McMurdo was selected as a Team Coach to provide support and coaching to a group of Customer Care Representatives in the Call Centre, including the applicant. Ms. McMurdo had been hired at the same time as the applicant and had attended the initial training with him. The evidence of the respondent witnesses is that the Team Coach position had been advertised internally at Hostopia, and Ms. McMurdo and one other individual were the successful candidates. The applicant did not apply for the Team Coach position.
11On December 27, 2006, Ms. McMurdo sent the applicant an e-mail raising a number of issues and concerns about his work. She indicated that she had been monitoring the applicant’s “tickets”, which are internal electronic documents created when a customer’s problem cannot be resolved at the first level of technical support and needs to be escalated to a higher level. In her e-mail, Ms. McMurdo made reference to specific tickets generated by the applicant where required information had not been included and which had been escalated without supervisor permission. She raised concern that “troubleshooting” did not appear to have been done by the applicant to try to resolve the customer’s problem at the first level, and that information required by technical support staff at higher levels as to what steps the applicant had taken to try to resolve the problem had not been set out. Ms. McMurdo indicated that she would continue to monitor the applicant’s tickets, as she was doing with all members of her team.
12Following this e-mail, Ms. McMurdo and the applicant had a discussion about these issues over “jabber”, which is an internal electronic communications system. Following this discussion, Ms. McMurdo sent an e-mail dated December 27, 2006 to her supervisor, advising that the applicant “seems to be someone who can easily become defensive when someone is bringing to his attention an area of opportunity to him”. Ms. McMurdo reported that the applicant said that he processes incomplete tickets because he feels rushed and pressured to move on to the next customer’s calls. Ms. McMurdo recorded that this had not been her experience when working as an agent. Ms. McMurdo recorded that the applicant agreed to put more effort into his troubleshooting and tickets, and to take the time to ensure that the required information was included before the problem was escalated. Ms. McMurdo noted that the applicant seemed to be cooperative and knew that his tickets would continue to be monitored, so she would continue to look for trends in his work.
13In his complaint, the applicant characterizes this interaction as “harassment” by Ms. McMurdo and states that this harassment continued in January, February and March 2007. His evidence regarding what occurred in January, February and March 2007 is that Ms. McMurdo would continue to raise issues with him about his tickets.
14On February 3, 2007, the applicant sent an e-mail regarding Ms. McMurdo to a Hostopia employee, Shazad Hanif, who thereafter brought the issue to Mr. Oswin’s attention. In his e-mail, the applicant raised an incident where he and another bilingual agent had been asked by Ms. McMurdo to move on to other customer calls when they were waiting for a bilingual supervisor to speak to their clients. The applicant’s e-mail states that Ms. McMurdo’s tone was “disrespectful and demeaning to our persons and as people of minorities in the Province of Ontario” and that her “tone was an order to move on with the call (meaning hang up); and take other calls (5 calls waiting at that time)”. The applicant’s e-mail states that Ms. McMurdo was doing her nails and looking at non-work-related material on her computer at this time. This is denied by Ms. McMurdo.
15In his e-mail, the applicant questions Ms. McMurdo’s ability to act as his Team Coach as she is not bilingual. Ms. McMurdo’s evidence is that she was able to review his tickets, because these were done in English. The applicant also states that Ms. McMurdo had complained about his tickets, but had not shown him in the training room where his errors were or what other information he needed to provide on his tickets.
16Mr. Hanif responded to the applicant’s e-mail later that day, advising that he would need to bring the applicant’s e-mail to the attention of his superiors. Mr. Hanif also indicated that he wanted to meet with the applicant on the following Monday, February 5, 2007, to discuss the issues raised and obtain further clarification. Mr. Hanif did not testify before me, and the applicant did not provide any evidence one way or another as to whether any such meeting occurred.
17On February 5, 2007, Mr. Oswin sent an e-mail to the applicant advising that he had been made aware of the situation and that it would be addressed as soon as possible. His e-mail states that he would make sure that the issue was addressed that week with all parties involved to ensure proper resolution. Once again, I have no evidence before me from the applicant or the respondents as to whether or what further steps were taken.
18On February 7, 2007, the applicant wrote a further e-mail to Mr. Oswin regarding a ticket that he had prepared. The actual ticket at issue in this e-mail is not in evidence before me. The applicant’s e-mail states that he did the ticket properly and higher-level support found something that he could not. While it is unclear precisely what the applicant is referring to in this e-mail, he appears to be objecting to comments made by Ms. McMurdo about this ticket, which he refers to as an “essay”. The applicant states in this e-mail that he regards such communications as a waste of time, and that he had asked Ms. McMurdo to stop sending e-mails to him since January 2007. In this e-mail, the applicant raises an issue about lack of “training”, which he describes as being not verbal or written but visual.
19Mr. Oswin wrote a response to the applicant later that same day. In this response, he states that “the issue of coaching has been addressed”. The applicant in his evidence states that he does not know what this means, and I have no other evidence before me regarding what coaching issue was addressed or how. Mr. Oswin’s e-mail states that time would be booked for a supervisor, Doug Clinton, to sit with the applicant and visually go over the troubleshooting tools. Once again, I have no evidence before me from the applicant or the respondents one way or another as to whether this occurred.
20Ms. McMurdo’s evidence is that, following her December 27, 2006 e-mail, she did continue to raise issues with the applicant about his tickets where warranted, as this was part of her responsibilities as Team Coach. In the material submitted into evidence before me is a selection of tickets identified by Ms. McMurdo as illustrating the kinds of problems she was raising with the applicant. One of these tickets, from late November 2006 includes comments from higher-level technical support staff about the lack of information provided by the applicant, which was required in order to try to resolve the customer’s issue. A ticket from January 2007 records a higher-level technical staff member stating in reference to the applicant, “as always no troubleshooting from this tech”. Another ticket from January 2007 records concerns from higher-level technical support staff that the applicant had not performed mandatory troubleshooting before escalating the problem. A ticket from February 2007 records Ms. McMurdo raising an issue with the applicant about a lack of troubleshooting. A ticket from March 2007 records a concern that the applicant had not done troubleshooting, had provided a vague issue description, and had not supplied other required information.
21Ms. McMurdo’s evidence is that the applicant would become defensive when she would raise issues with him, and that he was not open to constructive feedback. She states that it got to the point where she was feeling sufficient discomfort with the applicant’s response to her coaching that she asked that he be re-assigned to another Team Coach, which he was sometime in March 2007.
22On March 14, 2007, Ms. McMurdo wrote an e-mail to identify agents who were in need of training, which was copied to Mr. Oswin and others. In this e-mail, Ms. McMurdo identified the applicant as someone who needed training on technical issues and customer service. She specifically identified issues with the applicant’s lack of troubleshooting and “replication”, which means trying to replicate or reproduce the customer’s issue in order to better understand the problem. She also indicated that the applicant could use a strong review on what information to include when creating a ticket and the procedure he needs to follow. This e-mail was not copied to the applicant.
23At the commencement of the hearing, I asked the applicant to identify for me how it is that he alleges Ms. McMurdo’s actions constitute harassment or discrimination within the meaning of the Code. The applicant first alleges that Mr. Oswin told Ms. McMurdo to find fault with his tickets, and that this instruction was not given in relation to any other agents. There is simply no evidence to support this allegation. Rather, the evidence indicates that in her role as Team Coach, Ms. McMurdo was reviewing tickets created by agents on her team and identified issues relating to the applicant’s tickets, which she proceeded to raise with him.
24The applicant next alleges that he perceived Ms. McMurdo’s demeanour towards him to be racist. No specifics or particulars were provided by the applicant in his oral evidence in support of this allegation, other than that she referred to him as being “defensive” in her December 27, 2006 e-mail. I find no link or connection between Ms. McMurdo’s statement in her e-mail that the applicant is “someone who can easily become defensive” and the applicant’s race, colour or ethnic origin. Rather, I find this simply to be a comment regarding the applicant’s response to Ms. McMurdo’s attempt to provide him with feedback, coaching and constructive criticism.
25I also note the applicant’s comment in his February 3, 2007 e-mail about Ms. McMurdo’s “disrespectful and demeaning tone” towards himself and another bilingual agent, who were described as “minorities”. The only specific detail provided about this alleged tone in the applicant’s e-mail is that it was an order to move on to other calls. The applicant’s oral evidence before me did not provide any further details or particulars regarding Ms. McMurdo’s alleged “tone” on this occasion or if, how or why he was alleging that it amounted to racial harassment or discrimination. In the absence of such specifics, I find that I do not have sufficient evidence upon which to base any finding regarding Ms. McMurdo’s “tone” on this occasion.
26The applicant alleges that he did not receive any “training” to address the problems identified by Ms. McMurdo. There can be no dispute that Ms. McMurdo provided direct feedback to the applicant about problems with his tickets. In her December 27, 2006 e-mail she identifies the problems and provides the applicant with specific direction as to what he should be doing to avoid these problems. Her subsequent e-mail to management indicates that these issues were further discussed between the applicant and Ms. McMurdo on jabber. Ms. McMurdo’s evidence is that after this, she continued to coach the applicant on issues arising from his tickets. The applicant’s allegation that Ms. McMurdo continued to “harass” him about his tickets in January, February and March 2007 indicates that she continued to raise with him such issues. Further, the applicant’s February 7, 2007 e-mail also indicates that Ms. McMurdo continued to raise issues with him about his tickets verbally and in writing (though not “visually”).
27The applicant’s issue is that he never received additional “training”, in the sense of being taken to a separate room away from his desk where he would receive instruction and direction. This is not disputed by Ms. McMurdo. However, it is clear that the applicant did receive feedback and coaching on such issues from Ms. McMurdo, which is simply a different form of providing the same instruction and direction. In any event, no evidence has been provided by the applicant to connect any lack of formal “training” on such issues to his race, colour or ethnic origin.
28Accordingly, I find nothing in the applicant’s interactions with Ms. McMurdo to support his allegations of discrimination or harassment because of his race, colour or ethnic origin. Rather, I find that Ms. McMurdo was performing her responsibilities as Team Coach in drawing to the applicant’s attention deficiencies in his work performance and in reporting these issues to management.
Allegation re Bathroom Breaks
29On January 10, 2007, the applicant left his desk to go to the bathroom. He states that when he returned, he was confronted by his supervisor, Doug Clinton, about where he had been and was told that the time he had taken would be counted as his break.
30That same day, the applicant sent an e-mail to Ms. Pantin raising this issue. This resulted in a meeting with Mr. Oswin and Ms. Pantin to clarify the issue. Their evidence is that it was explained to the applicant that he was not required to ask permission before going to the bathroom, but he was required to notify one of the supervisors so that they would know he was away from his desk. The rationale for this policy is that Hostopia has certain performance requirements in terms of its customer response times, and so the supervisors need to know if they are short an agent who would otherwise be available to take calls. The respondents’ evidence is that this was a policy that applied to all agents.
31The applicant alleges that the policy was applied differently as between White agents and agents who were members of racialized groups. His evidence is that, from where he was sitting, he could observe that White agents were able to go to the bathroom without advising a supervisor. In contrast, he states that members of racialized groups were questioned about their trips to the bathroom and on occasion even followed to the bathroom.
32I do not accept the applicant’s evidence that he could see whether White agents did or did not advise a supervisor when going to the bathroom. This would require him to know where a particular agent was going at any given time and to be able to observe whether they spoke to a supervisor, all while he was fielding customer calls and dealing with computer issues. I simply do not find this to be credible. Further, the applicant would have no way of knowing whether any particular agent advised a supervisor by any means other than speaking with them, such as by e-mail or jabber. The applicant’s evidence in this regard is also contradicted by Ms. McMurdo, who self-identifies as Caucasian. Her evidence is that when she worked as an agent, she understood that it was the policy to notify a supervisor if taking an unscheduled bathroom break and that she complied with this policy.
33I also am not prepared to accept the applicant’s evidence that agents who are members of racialized groups were questioned or followed in relation to their trips to the washroom. The applicant’s evidence at the hearing was that he heard about this from other employees, whom he identified. However, none of these other individuals was called by the applicant as a witness to provide evidence in support of his allegations. I am not prepared to rely upon hearsay evidence to make a finding of racial discrimination, especially where the consistent evidence of the respondents’ witnesses is that the policy was applied equally.
34Finally, I note that the applicant’s own evidence is that prior to January 10, 2007, he had gone to the bathroom without advising a supervisor and without incident and that after January 10, 2007, he continued to do so without incident. If in fact this policy was being applied in a discriminatory fashion, one would expect that this would have affected the applicant as a member of a racialized group prior to January 10, 2007, and/or would have continued to affect him after that date. But it did not.
35Accordingly, I find that the evidence does not support that the applicant experienced discrimination or harassment because of his race, colour or ethnic origin in relation to the incident on January 10, 2007.
Allegation re January 31, 2007 incident
36On January 31, 2007, the applicant was on the phone with a customer when he was interrupted by a supervisor, Jas Kainth. The applicant’s evidence is that Mr. Kainth was rude to him in this interaction. The applicant’s evidence is that he told Mr. Kainth not to interrupt him when he was on a customer call, to which Mr. Kainth responded that this was his job and he would continue to do so. At the hearing, the applicant gave evidence that Mr. Kainth was standing very close during this exchange while the applicant was seated, and that Mr. Kainth’s crotch was in the applicant’s face. The applicant identified Mr. Kainth as being Sikh and a member of a racialized group.
37That same day, the applicant sent an e-mail about this interaction and previous interactions with Mr. Kainth to Mr. Oswin and Ms. Pantin. In this e-mail, the applicant describes Mr. Kainth’s conduct as “harassment”, although he does not state in the e-mail that this alleged harassment is related to the applicant’s race, colour or ethnic origin.
38Mr. Oswin and Ms. Pantin met with the applicant to discuss this issue later that same afternoon. In this meeting, Mr. Oswin explained to the applicant that he had instructed Mr. Kainth to inform the agents of an issue that the company was experiencing with one of its telecommunications clients. In his evidence before me, Mr. Oswin stated that sometimes Hostopia would experience a spike in customer calls due to a problem or outage that was due to an external issue over which the company had no control. In such circumstances, this information needed to be conveyed to the agents so that they could simply inform the customer of the external problem and not spend time trying to troubleshoot the issue at Hostopia’s end.
39Ms. Pantin sent an e-mail to the applicant to confirm what was discussed in their meeting. In this e-mail, she advised the applicant that she and Mr. Oswin would speak with Mr. Kainth with respect to the incidents and the manner in which he approached the applicant. Their evidence before me was that they did so, and asked Mr. Kainth to be more respectful when he was interrupting agents on customer calls. Ms. Pantin’s e-mail also states that the applicant should feel free to come and discuss such incidents with Mr. Oswin should they arise again, so that they could be addressed and rectified as soon as possible.
40At the hearing, I asked the applicant on what basis he was alleging that this incident was connected to his race, colour or ethnic origin. He responded that it was because Mr. Oswin had instructed Mr. Kainth to interrupt him, and that this was not done with other agents. While it is correct that Mr. Oswin had instructed Mr. Kainth to advise the applicant of the external issue, the evidence does not support that this was only done to the applicant. Rather, the evidence indicates that this information was conveyed to all agents.
41It may indeed be that Mr. Kainth was rude in the manner in which he interrupted the applicant’s call. However, rudeness alone is not a sufficient basis to establish a link between the conduct at issue and the protected grounds of race, colour or ethnic origin. With regard to the applicant’s allegation that Mr. Kainth’s crotch was in his face, I note that this detail was not included in the e-mail sent by the applicant about this incident on the very same day nor was it raised at any time prior to the applicant’s evidence at the hearing. Once again, however, even were I to accept the applicant’s evidence in this regard, I do not find any support for any link or connection between such conduct and the applicant’s race, colour or ethnic origin.
42Accordingly, I find that the evidence does not support that the applicant experienced discrimination or harassment because of his race, colour or ethnic origin in relation to the incident on January 31, 2007, or his interaction with Mr. Kainth.
Allegations re discrimination because of disability
43The applicant’s first allegation regarding discrimination because of disability relates to an incident on March 14, 2007, when the elevators at the building where the applicant worked were out of service and he was required to walk up the stairs to reach the 11th floor. The applicant states that he suffers from asthma and that he was adversely affected due to his asthma condition as a result of being required to walk up the stairs. The applicant raised with Mr. Oswin that he was not feeling well, and he was permitted to leave work early that day. However, the applicant was not entitled to sick time, and so was not paid for the balance of the day that he was not at work and also may have lost entitlement to overtime that day.
44The applicant alleges that this amounts to a failure to accommodate his disability. I do not agree. Hostopia was not responsible for the elevators going out of service, which was the responsibility of building management. Hostopia permitted the applicant to go home when he reported that he was not feeling well. In such circumstances, I find that it was not a requirement for the employer under the duty to accommodate a disability to provide paid leave to an employee for lost time or lost opportunity for overtime.
45In his complaint, the applicant also raised an allegation regarding his application for equipment to deal with sleep apnea. At the commencement of the hearing, the applicant stated that he was not pursuing this allegation before me.
46No issue of disability discrimination was raised in relation to any other allegation raised by the applicant in this proceeding.
Allegation re washroom incident on April 5, 2007
47Hostopia had been experiencing issues regarding the state of the washrooms used by staff and clients. On December 13, 2006, Ms. Pantin sent an e-mail to all male staff members about the state of the men’s washroom, raising an issue about someone putting rolls of paper towels in the urinals and clogging the drain and causing the water to overflow onto the washroom floor. She asked that whoever was doing this refrain from this type of action. The applicant responded to Ms. Pantin with an e-mail expressing his own concerns about the state of the men’s washroom, and asking that the company take steps to ensure that this did not happen again. Ms. Pantin replied to the applicant that it was not her job to ensure that people know how to use the washroom properly, and that all she could do was to raise the issue and depend on staff to do their part.
48On April 5, 2007, the applicant was working on the evening shift when he went to the washroom and discovered that someone had put rolls of paper into the toilets such that they could not be used. After returning from the washroom, the applicant complained to his supervisor about the state of the washroom. A verbal altercation ensued between the applicant and another staff member, Mohammed Jacquesson. Both the applicant and Mr. Jacquesson wrote e-mails to management that evening regarding this incident. In short, it appears that Mr. Jacquesson took issue with some of the language being used by the applicant to describe the type of person who would do this kind of thing, and made a statement as a devil’s advocate to the effect of, what if he was the one who had done this and what was the applicant going to do about it. A subsequent discussion occurred in French between the applicant and another bilingual agent, which Mr. Jacquesson perceived was directed towards him and to which he reacted. The applicant’s evidence is that this discussion pertained to the state of the washroom and not to Mr. Jacquesson. The applicant’s evidence is that Mr. Jacquesson referred to him as a “fat ass” and “balding”.
49The applicant’s evidence is that he was approached by a supervisor and asked to write a report of the incident, which he did. The applicant’s e-mail relates his version of the incident, and does not raise any allegation of discrimination or harassment because of a Code-protected ground nor does it specifically request that management take any action. Mr. Jacquesson also prepared a report for management setting out his version of the incident, in which he alleges that the applicant had been swearing and using derogatory terms to refer to the kind of person who would do such a thing, referring to such individual as “idiot, mentally retarded, stupid etc.” Mr. Jacquesson also reported that, after he had posited as a devil’s advocate that he had done it and asked what the applicant was going to do about it, the applicant responded by saying, “nothing, you are just an incompetent person with mental problems that needs a psychiatrist”. While Mr. Jacquesson acknowledged in his e-mail that he was at fault for the way that he reacted to the applicant and would take responsibility for his actions, he also raised that the applicant’s conduct was in violation of the Code and expressed his feeling that the applicant should know that his comments were legally unacceptable and subject to a complaint under the Code.
50There is no evidence before me as to what, if any, steps were taken by Hostopia management in response to this incident.
51There can be no doubt that this was an unfortunate situation and a distressing incident for the applicant and apparently also for Mr. Jacquesson. However, that is not a sufficient basis upon which to allege a violation of the Code. In order for the applicant to sustain an allegation of a Code violation arising from this incident, the applicant bears the onus of establishing some link or connection between what happened and the grounds of race, colour or ethnic origin that form the basis of his complaint. No such link or connection has been established on the evidence before me. Rather, the evidence indicates that this was a workplace dispute between two employees that arose in relation to the state of the men’s washroom that escalated into an unfortunate exchange between these employees. I do not find that this situation gives rise to any violation of the Code.
52It is well-established that under the Code there is an obligation on an employer to take reasonable steps to respond to allegations of a Code violation. However, no allegation of a Code violation was raised by the applicant so as to engage this obligation. I do not have jurisdiction under the Code arising out of an employer’s failure to appropriately respond to a workplace dispute which does not give rise to an alleged Code violation. While it is true that Mr. Jacquesson raised with management an alleged Code violation by the applicant, this does not provide a basis for me to make a finding that the applicant’s rights were infringed by any failure on management’s part to pursue or respond to Mr. Jacquesson’s allegations.
53Accordingly, I find no basis arising out of the April 5, 2007 incident to support the applicant’s allegation of a violation of the Code.
Allegation re termination of employment
54The applicant’s employment at Hostopia was terminated effective May 15, 2007. On that day, the applicant was called to a meeting with Mr. Kostandenou, Ms. Pantin and Mr. Oswin. There is no dispute that he was told at this meeting that he was being terminated because he was “just not a right fit” for the company. There also is no dispute that at this meeting, the applicant pressed Mr. Kostandenou for more details as to the reason that his employment was being terminated, but no such details were provided.
55Mr. Kostandenou’s evidence is that he was the one who made the decision to terminate the applicant’s employment. He states that this decision was made on the basis of meetings that he had with his managers and supervisors, at which the work performance of the agents was reviewed and discussed. He states that the applicant’s name would come up on a regular basis as one of the agents who was under-performing. His evidence is that when the applicant’s performance did not improve over a period of time and the same issues kept being raised, a decision was made to terminate the applicant’s employment. Mr. Kostandenou also raised in his evidence the applicant’s unwillingness to comply with company policies, and particularly the policy requiring agents to notify a supervisor if leaving their desk on an unscheduled break to go to the washroom, but this did not appear to be a major factor in the termination decision.
56Mr. Kostandenou acknowledged in his evidence that he told the applicant at the termination meeting that he was not the right fit for the company. He states that he did not want to terminate the applicant for cause and thereby interfere with his ability to claim employment insurance benefits, so the termination was done on a without cause basis and the applicant received two weeks’ severance pay. His evidence is that what he meant by “not the right fit” was that there were too many performance issues with the applicant for the company to work through to get the applicant up to the required level. He states that at a certain point, the company needs to make a decision whether to continue to invest in an employee, and after the applicant had worked there for about a year, he figured that they had given it enough time.
57Mr. Kostandenou acknowledges that the applicant kept asking for more details as to why he was being fired, and states that he responded by continuing to say that the applicant was “not the right fit”. His evidence is that he did not want to get into specifics at the termination meeting, so he just left it that things were not working out.
58At the commencement of the hearing, I asked the applicant how he was alleging that the termination of his employment constitutes discrimination because of his race, colour or ethnic origin.
59The applicant’s response was that he is alleging that management got rid of him because they didn’t want to deal with the issues he was raising, while concerns raised by others were addressed. First, there is no evidence before me to support that the applicant’s termination was due to any reluctance to deal with issues he had raised. Rather, the only evidence before me is that the decision was based on work performance reasons, which I find are supported by Ms. McMurdo’s evidence and the documentary evidence, including comments on specific tickets with which the applicant was involved. Second, there is no evidence that concerns raised by other agents, and particularly White agents, were treated any differently.
60Moreover, the evidence does not support that management failed to deal with the concerns raised by the applicant. In relation to the issue raised about Mr. Clinton and washroom breaks, the evidence indicates that management met with the applicant and discussed the company’s policy. No further issues of this nature were raised or experienced by the applicant. In relation to the issue raised about Mr. Kainth, the evidence indicates that management met with the applicant to discuss the issue and also spoke to Mr. Kainth. Once again, no further issues of this nature were raised by the applicant. In relation to the issues raised in February 2007 regarding Ms. McMurdo, the documentary evidence indicates that management was responsive to these issues and the applicant did not provide any other evidence to contradict this. Further, in March 2007, the applicant was re-assigned to a different Team Coach and there is no evidence that the applicant raised any issues regarding his new Team Coach. Management did respond to the applicant’s issue regarding the elevator, and while the applicant takes issue with not being paid for his lost time, I have found that this was not in violation of the Code. And while the April 5, 2007 incident was reported by the applicant to management, his e-mail did not request that any specific action be taken.
61In any event, management’s failure to respond to issues raised by an employee, without any link or connection to a ground protected under the Code, is not a sufficient basis upon which to raise an allegation of a Code violation. I already have found that none of the issues or incidents raised by the applicant have been established to be related to any protected ground.
62At the hearing, the applicant questioned why, if his work performance was deficient, the company had hired him in the first place, had allowed him to pass probation, and had not raised any issues regarding his tickets prior to December 2006. Mr. Kostandenou’s evidence is that hiring decisions are made on the basis of a person’s potential, and are not an indication of whether the person will actually work out as an employee. His evidence also was that the company invested significantly in training its new employees, and so did not want to lose this investment without first ensuring that management had taken steps with an employee to try to improve their performance. In my view, these are sensible responses to the applicant’s questions. I also accept Mr. Kostandenou’s evidence that having given it about a year for the applicant’s performance to improve and with issues still being raised, the company needed to make a decision about whether to continue with its investment in the applicant or terminate his employment.
63While it may be that no issues were raised with the applicant about his tickets prior to December 2006, there is specific and detailed oral and documentary evidence to support that there were ongoing issues with the applicant’s lack of troubleshooting and failure to provide sufficient information to the higher-level technical staff. The oral and documentary evidence indicates that these issues continued throughout the period that Ms. McMurdo was the applicant’s Team Coach from December 2006 to March 2007 and Mr. Kostandenou’s evidence, which I accept, is that these issues continued as reported to him in his meetings with managers and supervisors up until the time the termination decision was made.
64The applicant also raised the issue that he had not received any warning or disciplinary letters in relation to his work performance prior to termination. While this is true, the evidence before me indicates that specific issues regarding the applicant’s tickets were raised with him at least by Ms. McMurdo throughout her tenure as his Team Coach.
65In any event, the issue before me is not whether the respondents accorded progressive discipline prior to termination, as might be an issue in a labour arbitration proceeding regarding whether an employer had “just cause” for dismissal or in a civil wrongful dismissal case where an employer has alleged cause for dismissal (in this regard, I note that the applicant’s termination was done on a without cause basis in any event).
66Rather, the issue before me is first, whether the applicant has established a prima facie case that his termination was discriminatory because of his race, colour or ethnic origin, and second, if so, whether the respondents have provided a credible, non-discriminatory reason for the termination decision.
67On the first issue, I find that the applicant has not provided sufficient evidence before me to establish a prima facie case of discrimination, on the basis that he hasn’t provided sufficient evidence before me to establish a link or connection between the termination decision and his race, colour or ethnic origin.
68On the second issue, and in any event, I find that the respondents’ reason for termination is credible and non-discriminatory, on the basis that the work performance issues identified by the respondents are supported by the oral and documentary evidence.
69Accordingly, I find that the evidence does not support that the termination of the applicant’s employment was in violation of the Code on the grounds alleged.
Allegations re reprisal
70While the applicant alleged reprisal in his complaint, the only allegation raised before me in this regard was that he was terminated because he raised questions about his vacation entitlement and alleged missing work hours. Both of these issues were addressed and dealt with before the Ontario Labour Relations Board, which found against the applicant. These allegations relate to the applicant allegedly having raised his entitlements under the Employment Standards Act, which is not a basis upon which an allegation of reprisal under the Code is capable of being sustained.
71Accordingly, for all of the foregoing reasons, the Application is dismissed.
Dated at Toronto, this 2nd day of August, 2011.
"Signed by"
Mark Hart
Vice-chair