Cattan v. CompuCom Canada Co., 2011 HRTO 1472

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Cattan

Applicant

-and-

CompuCom Canada Co. (formerly Getronics Canada Inc.), Colin Turnbull and Teresa Edwards

Respondents

DECISION

Adjudicator: Mark Hart

Date: August 5, 2011

Citation: 2011 HRTO 1472

Indexed as : Cattan v. CompuCom Canada Co.

APPEARANCES BY

) Constance Olsheski, Counsel

Peter Cattan, Applicant ) (January 5, 2011) and

) Claire Giroux, Representative

) (March 8, 2011)

CompuCom Canada Co., Colin Turnbull ) James LeNoury, Counsel

and Teresa Edwards, 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”) dated June 1, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on September 13, 2005.

2The applicant alleges that he experienced discrimination in employment because of disability contrary to ss. 5(1) and 9 of the Code, arising out of the non-renewal of his contract of employment with the corporate respondent on March 15, 2005, effective April 15, 2005.

3The hearing in this matter was held on January 5 and March 8, 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, one additional witness called on the applicant’s behalf (Claire Giroux), the two personal respondents, and one additional respondent witness, Aurelio Ibanez.

Background

4The corporate respondent CompuCom Canada Co., formerly Getronics Canada Inc. (“Getronics”) is a company that, among other things, has a contract to provide technical support pursuant to a renewable “break fix” contact with Dell Computers. Pursuant to this contract, Getronics employed Field Services Representatives on a renewable contract basis, whereby Getronics would receive work orders relating to problems being experienced by end users of Dell computers and the Field Service Representatives would attend at the end user’s home or business to install any necessary hardware or perform other troubleshooting required to fix the problem.

5The personal respondent Colin Turnbull commenced employment with Getronics in June 2004 as a supervisor in its Burlington office, and at all material times was the applicant’s direct supervisor. Mr. Turnbull voluntarily resigned his employment with Getronics in December 2005.

6The personal respondent Teresa Edwards at all material times was the Manager of Staffing and Employee Relations at Getronics, with responsibility for recruitment, employee relations, health and safety, and disability management. She voluntarily resigned her employment with Getronics in August 2006.

7Aurelio Ibanez at all material times was the Systems Integration Senior Manager at Getronics. Mr. Ibanez was the manager of the department in which the applicant worked, and as the applicant’s supervisor, Mr. Turnbull reported directly to Mr. Ibanez.

8The applicant commenced employment with Getronics as a Field Services Representative on October 15, 2001, pursuant to a one-year renewable contract. In this position, the applicant was assigned work orders to fix Dell computers within a specific geographic area and was paid on a piece work basis based on the number of calls he completed. The applicant initially worked out of Getronics’ Scarborough office and then in March 2004 was transferred to the Burlington office.

9The applicant’s contracts were renewed from time to time on either a one-year or six-month basis, which the evidence before me indicates was tied to the length of the Dell Computers contract. The process for renewal typically involved the initiation of a Personnel Action Request to confirm the renewal, and confirmation of renewal by letter to the applicant. The records pertaining to the renewal of the applicant’s contracts are incomplete. The last specific document in evidence before me regarding the applicant’s contract renewals prior to the termination of his employment is a Personnel Action Request confirming the renewal of his contract for a period of six months from April 16 to October 15, 2004. There is no dispute that the applicant continued to work for Getronics beyond October 15, 2004. The oral evidence before me, which is supported by other documentary evidence, is that the applicant’s contract was renewed for a further six-month period, expiring April 15, 2005.

The events at issue

10On the afternoon of December 24, 2004, the applicant was attending a condominium complex to service a customer. As he was approaching the entrance to the building, he slipped and fell on some ice. At the time, he was carrying a screwdriver in his right hand and two boxes under his left arm. His right hand fell hard on the screwdriver and his chin hit the boxes he was carrying and his head snapped back. The applicant’s evidence is that he experienced a lot of pain as a result of the fall, but nonetheless proceeded to complete the service call.

11The applicant’s evidence is that as a result of the fall, he was unable to complete the remaining work orders that had been assigned to him. His evidence is that he called Mr. Turnbull and left a voicemail message reporting the fall and his inability to complete the work orders. Mr. Turnbull in his evidence denies that he received this voicemail message. In my view, nothing turns on this, as the applicant reported the fall to Mr. Turnbull when he returned to work in January 2005.

12December 24, 2004, was the last day that the applicant was scheduled to work before he went on vacation until January 4, 2005. The applicant’s evidence is that he kept the outstanding work orders with him in the event that he was able to complete them during the holidays, but this did not prove possible and so he transferred them to another Field Service Representative on December 29, 2004.

13The applicant’s evidence is that during the holiday period, he experienced a lot of pain in his neck and back, which he self-treated with medication. The applicant states that he did go to a walk-in clinic, but was told that they were not accepting any more patients. The evidence of Ms. Giroux, who was a friend of the applicant, supports that the applicant was experiencing a lot of pain at this time.

14The applicant returned to work on January 4, 2005, and spoke with Mr. Turnbull about his fall. In his evidence before me, the applicant stated that at this time, Mr. Turnbull made some derogatory remarks to him. As indicated in my previous Interim Decision in this matter dated February 15, 2011 (2011 HRTO 321), this allegation was not set out in the complaint and for the reasons expressed in my Decision is not within the scope of the subject-matter of this proceeding.

15There is no dispute that Mr. Turnbull asked the applicant to report his fall in writing, which the applicant did by e-mail on January 7, 2005. Mr. Turnbull forwarded the applicant’s e-mail to Ms. Edwards and Mr. Ibanez. Ms. Edwards responded by asking whether the applicant had missed any time off work, to which Mr. Turnbull replied that no time was missed. This is disputed by the applicant, who takes the position that he did miss time, in the sense that he was unable to complete the calls assigned to him that day. Mr. Turnbull’s evidence is that he checked the time that was recorded on the system to indicate when the applicant had completed his last call that day, which was 4:30 p.m., which he regarded as not being an unreasonable time for the applicant to have ended his day, particularly on Christmas Eve. In my view, nothing material turns on this in relation to the issue before me.

16The applicant continued to work during the period from January 4, 2005, to March 8, 2005. The applicant’s evidence is that during this period of time, he continued to experience pain and continued to self-medicate, though he did not seek formal medical treatment. While the applicant states that he spoke about his pain with some of his co-workers, there is no dispute that the applicant did not raise the pain he was experiencing with Mr. Turnbull, Ms. Edwards or anyone else in a supervisory or management position and he did not seek any accommodation arising from his injury.

17The applicant’s evidence is that on March 8, 2005, while he was doing his calls, his right hand began locking up and he was unable to move his right hand and arm. He states that he called Mr. Turnbull and advised that he was having difficulty and was unable to complete the rest of his calls. He states that he was told by Mr. Turnbull to continue with his calls, as there was no one to replace him. He states that he told Mr. Turnbull that he was going to schedule an emergency appointment with his doctor, which he did for the following day. On March 9, 2005, the applicant sent an e-mail to Mr. Turnbull reporting that he was unable to finish his calls the previous day due to pain in his right hand and neck caused by his fall on December 24, 2004, and that he had scheduled an emergency appointment with his doctor for that day. The applicant states in this e-mail that he would be unable to attend work that day, but would update Mr. Turnbull on the results. The applicant also identified the outstanding calls that needed to be attended to and that he had spoken to a co-worker about their priority.

18The events of March 8, 2005, are in dispute. Mr. Turnbull’s evidence is that on the morning of March 8, 2005, he called the applicant to schedule a meeting with him for the following day, to which the applicant agreed. This is denied by the applicant. Mr. Turnbull’s evidence is that this meeting was for the purpose of telling the applicant that his contract would not be renewed beyond April 15, 2005. There is a document before me, a Personnel Action Request, which indicates that it was prepared by Mr. Turnbull on February 18, 2005, and identifies that the applicant had a “poor attitude towards co-workers and customers” and was “difficult to work with”. Mr. Turnbull’s evidence is that this document was initiated in consultation with Mr. Ibanez based upon a decision not to renew the applicant’s contract beyond its end date. This is supported by Mr. Ibanez. The document also indicates that it was signed by Ms. Edwards on March 2, 2005, and approved by a Getronics Vice-President. The evidence of all three respondent witnesses was that a meeting with the applicant was to be scheduled for March 9, 2005, to inform him that his contract would not be renewed.

19Mr. Turnbull’s evidence is that the applicant called him later in the day on March 8, 2005, to advise that he was experiencing problems with his hands and was not able to complete his day. Mr. Turnbull’s evidence is that during this call, there was no indication from the applicant that he would not attend the meeting scheduled for March 9, 2005. Mr. Turnbull’s evidence is that after he received the applicant’s March 9, 2005 e-mail, he advised Ms. Edwards and the meeting was postponed.

20The applicant remained off work for the balance of the week, returning to work on Monday, March 14, 2005. The applicant was wearing a wrist brace when he returned to work. The applicant states that he told Mr. Turnbull that he was in a lot of pain and was taking medication, and that he would like to do fewer calls. The applicant’s evidence is that Mr. Turnbull replied by asking the applicant to do as many calls as he could, because there was no one else to do the calls. The applicant also states that he advised Mr. Turnbull that he had to start physiotherapy treatment soon, to which he states that Mr. Turnbull replied, “you’re on your own”. The applicant states that he understood this to mean that it was up to him to do his physiotherapy treatment and Getronics would not be paying for it. There is no dispute that as a contract employee, the applicant was not entitled to medical benefits as part of his compensation package from Getronics. Mr. Turnbull does not recall having any conversation with the applicant on March 14, 2005.

21On March 15, 2005, Mr. Turnbull met briefly with the applicant to provide him with a letter stating that his contract would not be renewed beyond April 15, 2005, and that his last day of employment with Getronics would be April 15, 2005. There is no dispute that the applicant asked for the reason why his contract was not being renewed, and that at least initially Mr. Turnbull replied that he didn’t need to give the applicant a reason. After continuing to press Mr. Turnbull for a reason, the applicant states that he was told that it was because he “didn’t fit”. Mr. Turnbull does not dispute that he said this, by which he was referring to the performance issues with co-workers and customers.

22The applicant states that he raised with Mr. Turnbull that he had been given this letter knowing that he was disabled and needed time off work to attend physiotherapy and alleged that he had been terminated because he was no longer any good to Getronics. The applicant then contacted Mr. Ibanez to raise this issue, to which Mr. Ibanez replied that the termination was “in the works”. The applicant states that Mr. Ibanez said that he would speak with Mr. Turnbull and get back to him, but he never did.

23The applicant continued to work for the rest of the week, but then went off work for medical reasons as of March 21, 2005 and did not return to work. It is not disputed that the applicant received compensation from Getronics for the period from March 21 to April 15, 2005, notwithstanding that he did not perform any work for the company.

24The applicant filed a claim with the Workplace Safety and Insurance Board (“WSIB”) regarding his injury. This claim was discussed by the WSIB with Ms. Edwards on April 8, 2005, and was disputed. Ms. Edwards sent a fax to the WSIB on April 11, 2005, taking the position that it was not a valid claim on the basis that the respondents believed that the applicant had made the WSIB claim based upon his knowledge that a meeting had been scheduled for March 9, 2005, and that his contract would not be renewed. It was noted that the applicant did not seek medical attention arising out of the incident on December 24, 2004, until March 9, 2005, which was the day of the scheduled meeting to advise him that his contract would not be renewed. The fax states that the applicant’s contract was not renewed “due to performance issues revolving around customer and co-worker complaints”. It was also noted that the applicant had not requested modified duties and had not missed any time from work up to March 9, 2005.

25The applicant’s WSIB claim was denied and was pursued on appeal to an Appeals Resolution Officer (“ARO”). By decision dated September 25, 2006, the ARO found that the applicant had not established that he had suffered a workplace injury on December 24, 2004, primarily based upon the fact that supporting witnesses were not called by the applicant’s representative and the applicant had not sought medical treatment. In any event, even if there was an incident on December 24, 2004, the ARO found that the applicant had not established that any ongoing problems were causally related to the December 24, 2004 incident. The applicant did not pursue any further appeal of this decision.

Evidence re performance issues

26The applicant’s evidence before me is that no specific performance issues were ever raised with him by Getronics management. The applicant did acknowledge that there was some “bickering” between the Field Service Representatives, but he described this as not being out of the ordinary. The applicant also acknowledged that there had been a few customer complaints, but also pointed to e-mails that he had received from customers commending him for his work which had been brought to the attention of management.

27The evidence of the respondent witnesses is markedly different. Mr. Ibanez’ evidence is that there were interpersonal conflicts between the applicant and his co-workers at the Scarborough office, which was the reason that he was moved to the Burlington office in March 2004. This is disputed by the applicant, who states that he was moved because responsibility for the geographic territory he covered in Mississauga was transferred to the Burlington office.

28Mr. Turnbull’s evidence is that, following the applicant’s transfer to the Burlington office, interpersonal conflicts with co-workers continued over the summer of 2004. The evidence indicates that there was a different procedure for organizing parts required to perform the work as between the Scarborough and Burlington offices. In the Scarborough office, parts were received in the warehouse and were matched up with the work orders by warehouse staff so that they would be ready to be picked up by the Field Service Representatives first thing in the morning. In contrast, in the Burlington office, there was only one person working in the warehouse, and so the Field Service Representatives were asked to assist in organizing the parts for the day’s work. Mr. Turnbull’s evidence is that the applicant was resistant to this different way of doing things, and did not want to assist in organizing the parts but simply wanted to pick up his parts and go out on his calls. Mr. Turnbull’s evidence is that this caused conflict with other staff and resulted in a number of meetings with the applicant about this issue throughout the summer.

29Mr. Turnbull’s evidence is also that he received complaints from the applicant’s co-workers that he was uncooperative in sharing the work. While each Field Service Representative is designated a specific geographic area, there are times when one representative may ask another representative to handle a call in their area for various reasons. Mr. Turnbull’s evidence is that while the applicant would assist other representatives when it was convenient for him, he would not reciprocate and was not always cooperative.

30Mr. Turnbull also gave evidence that he received numerous customer complaints about the applicant. There is, however, scant documentation to support this. The only specific customer complaint in evidence before me is an e-mail chain dated December 15, 2004 which reports a customer complaint about a technician named “Peter”, who had not phoned the customer in advance to set up an appointment and who had used the customer’s phone to call his daughter. A request was made for a different technician to be assigned. This complaint was forwarded to Mr. Turnbull for response. Mr. Turnbull in turn forwarded the complaint to Mr. Ibanez with the statement, “This is becoming a weekly occurrence – complaints against Peter. His contract is up in April.”

31Mr. Turnbull’s evidence is that he discussed this complaint with the applicant either on the same day or the following day. This is denied by the applicant, who states that he had no knowledge of this complaint until this document was disclosed as part of the hearing process. The applicant also disputes that he was even the technician who did this call, and denies that he would have used a customer’s phone to call his daughter, who was 7 years old at the time. Mr. Turnbull’s evidence is that he was able to identify on the company’s system that the applicant was the technician who had responded to this call.

32Mr. Turnbull’s evidence is that this document exists and was produced because he had printed it and put it in the applicant’s file. His evidence is that there were numerous other customer complaints, but he could not provide any details of these complaints given the passage of time. While customer complaints generally would be conveyed to Getronics by e-mail, Mr. Ibanez’ evidence is that the company had moved and had experienced a server crash in explanation as to why no further e-mails were produced as part of this proceeding.

33Mr. Turnbull’s evidence is that he brought the issues between the applicant and his co-workers at the Burlington office to Mr. Ibanez’ attention in the summer of 2004. This was confirmed by Mr. Ibanez in his evidence. Mr. Turnbull’s evidence is that he made reference to the end date of the applicant’s contract in his December 15, 2004 e-mail to Mr. Ibanez because he was contemplating recommending that the applicant’s contract not be renewed. Both Mr. Turnbull and Mr. Ibanez testified that following the December 15, 2004 e-mail, they discussed the applicant and the issue of whether the applicant’s contract should be renewed, which was left in Mr. Turnbull’s hands to make a decision. Mr. Turnbull’s evidence is that he made the decision not to renew the applicant’s contract sometime in early 2005, which prompted him to prepare the Personnel Action Request on February 18, 2005 which was approved by Ms. Edwards on March 2, 2005.

Analysis and decision

34The issues before me are: (1) whether the applicant had a disability within the meaning of the Code; and (2) if so, whether his disability was a factor in the respondents’ decision not to renew his employment contract.

35With regard to the first issue, I am prepared to assume for the purpose of this Decision that the applicant had a disability at the material time that resulted from his slip and fall on December 24, 2004, and ultimately resulted in an aggravation of cervical and lumbar degenerative disc disease, tendinosis, and a superior labrum anterior posterior (“SLAP”) type of lesion that is likely the cause of locking in his upper right extremity. While I acknowledge that this assumption differs somewhat from the decision and findings of the WSIB, I note that medical evidence was put before me that does not appear to have been placed before the WSIB at the time of the ARO decision.

36The principal issue, in my view, is whether the applicant’s disability played any role in the decision not to renew his contract. While I appreciate that there is a paucity of documentation regarding the work performance issues raised by the respondents and that these issues are disputed by the applicant, there nonetheless are two specific documents before me that speak directly to these issues.

37The first is the e-mail dated December 15, 2004, which pre-dates the incident on December 24, 2004, and so cannot be regarded in any way to be attributable to any disability. I appreciate that the applicant disputes the customer complaint referenced in this e-mail or that he was even the technician involved. However, on its face, the document is clear that Mr. Turnbull regarded this as a customer complaint against the applicant which he described as becoming a “weekly occurrence”. Mr. Turnbull may have been over-stating the frequency of customer complaints against the applicant, he may not have kept copies of e-mails regarding prior or subsequent customer complaints, and he may or may not have raised this or other customer complaints with the applicant directly. What is significant to me, however, is that at a time before any disability issue arose, Mr. Turnbull is on record with his manager as expressing a concern about customer complaints against the applicant and tying this to the upcoming expiry of the applicant’s contract in April 2005.

38The second significant document is the Personnel Action Request that resulted in the non-renewal of the applicant’s contract. The document on its face indicates that it was prepared and signed by Mr. Turnbull on February 18, 2005. It also indicates that it was reviewed and signed by Ms. Edwards on March 2, 2005. While there is no question that the applicant had experienced his slip and fall prior to these dates and that this had been reported to both Mr. Turnbull and Ms. Edwards, there also is no dispute that no ongoing problems or requests for accommodation were reported to either Mr. Turnbull or Ms. Edwards or anyone else in management at any time prior to March 8, 2005, which is after the date upon which this document was prepared and approved. The document itself states that the action was being initiated due to the applicant’s “poor attitude towards co-workers and customers” and because he was “difficult to work with”. Once again, I appreciate that the accuracy of these comments is disputed by the applicant. But the point is that at a time when, in the eyes of Mr. Turnbull, Ms. Edwards and Getronics management, there was no report or knowledge of any ongoing disability issue affecting the applicant, an action to not renew the applicant’s contract had been initiated for work performance-related reasons.

39While the applicant’s representative suggested in her questioning of the respondent witnesses and in her final submissions that these documents could have been fabricated, I see no basis in the evidence to support such a conclusion. The Personnel Action Request on its face has hallmarks of a true document, including various handwritten notations, dates and a stamp that indicate to me that the document was prepared when it says it was prepared. The December 15, 2004 document, while in a different format than other e-mails put before me by the respondents, has a significant amount of detail, including dates, times, code numbers, and a variety of persons to whom the e-mails were copied or sent, which to my mind are indicative that this document was not manufactured after the fact. In addition, of course, in order to find that either of these documents was fabricated, I not only would have to disbelieve the evidence of Mr. Turnbull, Ms. Edwards and Mr. Ibanez that these documents were created at the time indicated, but would have to find that they conspired or colluded together to fabricate fraudulent documents in order to mislead this Tribunal and defeat the applicant’s claim. While I do not suggest that this is never possible, I do not find that there is anywhere near the kind of evidentiary basis that would be required to support such a finding.

40As a result, I find that these documents were prepared on the dates indicated, and support the respondents’ evidence that the decision not to renew the applicant’s contract was made for work performance-related reasons at a time when the respondents were unaware of any ongoing disability issue affecting the applicant. I note that this is consistent not only with the documents and all of the respondents’ evidence, but also with what the applicant himself states that he was told by Mr. Ibanez on the day he was advised that his contract would not be renewed, which is that the decision had already been “in the works”. Accordingly, I find that the applicant’s disability was not a factor in the decision not to renew the applicant’s contract.

41For all of the foregoing reasons, the Application is dismissed.