HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vincenzo Latronico
Applicant
-and-
York Region District School Board and Isagani Paz
Respondents
DECISION
Adjudicator: Judith Hinchman
Indexed as: Latronico v. York Region District School Board
APPEARANCES
Vincent Latronico, Applicant ) Self-represented
York Region District School Board, ) Andrew Zabrovsky, Isagani Paz, ) Counsel Respondents )
1This Application was filed in May 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission in April 2007 and abandoned upon filing the Application with the Tribunal.
2By Interim Decision 2011 HRTO 985 I dismissed several of the allegations in the Application on the basis that the applicant had not established a prima facie case of discrimination to which the respondents must respond.
3The allegations that remain allege discrimination on the basis of sex, ancestry, colour, ethnic origin, place of origin, race, reprisal, and sexual solicitation. The following allegations were not dismissed and are addressed in this Decision:
a. During July, August, and September of 2006, personal respondent Mr. Paz made sexual advances towards the applicant.
b. During an altercation with the applicant on September 5, 2006, Mr. Paz called the applicant a “wop” three times.
c. The applicant complained to respondent York Region (“the Employer”), who did not investigate, that Mr. Paz made discriminatory comments regarding the applicant’s Italian heritage by calling him a “wop” during that altercation.
d. The Employer reprised against the applicant for raising his Code-related rights (when he complained about the three alleged “wop” comments) by transferring him out of Mackenzie Glen School, extending his probation, and ultimately dismissing his employment.
4The background is extensively reported in Interim Decision 2011 HRTO 985 and except where helpful is not repeated here. The respondents’ evidence was heard in a two-day Hearing. In assessing credibility I am guided by the factors and approach followed by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (“BCCA”), which include considering a witness’ opportunities for knowledge, powers of observation, judgment and memory, and ability to describe clearly what he has seen and heard.
Sexual Solicitation
5Section 7 (3) of the Code states:
Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
6The applicant alleges that Mr. Paz, a fellow caretaker at MacKenzie Glen School, made sexual advances towards him in July, August, and September of 2006, and behaved negatively towards him when these advances were rebuffed. The applicant alleges that Mr. Paz stared at him, was always present when he changed into and out of his uniform, touched his arm when he spoke to him, and constantly told the applicant that he looked like Tom Cruise. In his testimony the applicant added that as a result of Mr. Paz watching him dress at work, he began changing at home. He also testified that Mr. Paz was overly friendly to him, once “danced” with a floor waxing machine and after the applicant stated “you’re pretty good,” Mr. Paz replied “maybe I should teach you how to salsa dance.” The applicant also testified that he perceived that Mr. Paz wanted to hold his hands, told the applicant “let’s check out hot women and chicks,” offered to introduce him to another teacher, and told dirty jokes. When Mr. Paz allegedly touched the applicant, the applicant complained “why are you touching me, don’t touch me, keep your distance.”
7The applicant testified that he did not wish to discuss personal matters with Mr. Paz and felt the offer to set him up with another teacher was unwelcome and vexatious.
8The applicant alleges that at the end of July 2006 at a farewell party for a fellow caretaker Rocco, Mr. Paz requested that the applicant drive him home and then would not leave the car. He alleges that Mr. Paz told him that he had had a really good time and then asked the applicant to go out with him. The applicant testified that Mr. Paz appeared giddy, excited, and happy. The applicant testified that Mr. Paz insisted that he wanted to go out alone with the applicant and suggested that they go to an Italian shoe store or Fortino’s supermarket. He then asked the applicant to come to the back yard for a beer.
9The applicant testified that he concluded from Mr. Paz’s body language and his invitation to go out that he liked him. He testified that he saw “sexual feelings” in Mr. Paz’s face and recognized the signs.
10The applicant alleges that because he rebuffed Mr. Paz’s advances, Mr. Paz’s behaviour changed from friendly to hostile, Mr. Paz would not help him at work, would criticize his work, gave him the wrong floor wax, and made “snippy” remarks in passing, one of which the applicant thought was the Filipino word for homosexual. Although he also testified that he did not speak or understand the Filipino language and Mr. Paz spoke in a low voice that was difficult to hear.
11The applicant alleges that Mr. Paz held a caretaker position senior to him and had power in that he could complain to management about the applicant thus threatening his opportunity to pass probation. He alleges that Mr. Paz gave him orders and was friends with his superiors. He alleges that Mr. Paz had told him he was a good friend of both Laird Underwood, the Assistant Manager of Caretaking whose responsibilities included MacKenzie Glen Public School, and Kevin McBean, the Employer’s Manager of Caretaking Services. At that time, Craig Smith was the applicant’s foreman. The applicant testified that after the alleged incident in the car, Mr. Paz said “you know management relies on me and Mr. Smith’s report on how you clean.” The applicant concluded that Mr. Paz was pressuring him to have sex. The applicant testified, however, that Mr. Paz never asked to have sex with him nor did he ask to have a sexual relationship with him.
12Mr. Paz testified that he felt his relationship with the applicant over the summer was fine and it was not until they had an altercation on September 5, 2006 that they had any issues. He denied that he ever told the applicant that he looked like Tom Cruise, and did not watch the applicant change his clothes. He explained that those caretakers who bring a change of clothes to work change in the electrical room just off the caretakers’ lounge. He lives close to the school and so he did not change at work and would not have been in the electrical room with the applicant to see him changing. Mr. Paz testified that he could not recall whether or not the applicant came to work in his uniform or changed at work, and that he would not have paid attention either way. Mr. Paz testified that he did not touch the applicant when talking. And he testified that he did not even recall asking the applicant personal questions. His recollection was that the applicant was quite talkative, and that when they worked together mostly it was the applicant who talked.
13With respect to the going away party for fellow caretaker Rocco, Mr. Paz testified that he rode his bicycle to work that day so that he could have a couple of drinks at the party and not drive. As a result he asked at work if someone could drive him home and the applicant volunteered. He testified that he had a couple of beers, had a good time at Rocco’s party, and was happy and laughing in the car. He denied that he got close to the applicant or tried to hold his hand. He denies that he invited the applicant to the backyard for a beer although on cross examination he stated that he could not really remember if he did or not, but in any case his family would have been home at the time. Mr. Paz testified that he did not ask the applicant to “go out” with him, although he may have said that they should get together again. He further denies that he asked the applicant to go grocery shopping with him at Fortino’s or to shop for Italian shoes. Mr. Paz testified that when they arrived at his home he said thank you and got out of the car.
14Mr. Paz testified that thereafter at work, he felt there was no change in the demeanour between the two. He denies acting in a hostile manner towards the applicant or telling dirty jokes. He also denied calling the applicant a “gay” in the Filipino language. Given the applicant’s testimony that he did not speak Filipino at the time, and that he couldn’t really hear the soft-spoken remarks, I accept Mr. Paz’s evidence on this point.
15Although Mr. Paz testified that the applicant’s work was not very good in that he did not appear to pay attention and took shortcuts, Mr. Paz alleges that he did not complain to the Lead Hand Mr. Smith, because he felt that Mr. Smith was aware of the applicant’s lack of performance. Mr. Paz testified that he had no role in assessing the applicant’s work, he was just a caretaker and not in a supervisory role. With respect to the applicant’s allegation that Mr. Paz gave him orders, Mr. Paz testified that it was only on September 5th, the first day of the school year, that he suggested a division of labour. He testified that because they were short handed that evening and he knew the applicant was new to the school, he suggested that the applicant take the easier parts.
16Mr. McBean agreed that as a fellow caretaker Mr. Paz would not have had any supervision over the work of the applicant or any input into the applicant’s advancement. Mr. McBean testified that caretakers are expected to work together collaboratively. He testified that as the Lead Caretaker, Craig Smith would have been responsible for workload allocation, but any input into the applicant’s advancement would be handled by a Supervisor of Facility Services, which is a management position.
17Mr. Paz also testified that although he had worked before with Mr. Hartung, the Lead Hand at Maple High School, they were not friends. As well he testified that although he may have met Mr. Underwood or Mr. McBean in interviews and training, they were not his friends. All three individuals corroborated this in their testimony, and Mr. Underwood testified that before meeting with Mr. Paz on September 6, 2006 he did not know him personally.
18Mr. Paz testified consistently and appeared to be a credible witness. He was clear as to what he could and could not recall with respect to his working relationship with the applicant. I am not persuaded that Mr. Paz made any sexual advances to the applicant or touched him inappropriately. The applicant admits that Mr. Paz never articulated a desire or request for a sexual relationship and relies on his perception that Mr. Paz was sexually interested in him based on conversations that I do not find are sexually suggestive. The applicant further relies on his speculation that Mr. Paz stared at him and watched him change his clothes which I also do not find persuasive. Even if Mr. Paz had seen him changing his clothes, asked him to go shopping, or asked him to get together socially, these behaviours are not a sufficient basis for me to conclude that Mr. Paz made sexual advances to the applicant in the circumstances of this case.
19Furthermore, based on the evidence of Mr. Underwood and Mr. McBean I am persuaded that Mr. Paz as a fellow caretaker was not in the position to confer or deny any benefits to the applicant, nor was he even in a position to influence those decision makers who could.
20The allegation that during July, August, and September of 2006, the personal respondent Mr. Paz sexually solicited or made sexual advances towards the applicant as that term is understood in the Code is dismissed.
Alleged “Wop” Comments on September 5, 2006
21Section 5 of the Code states:
(1) 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.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
22The applicant alleges that on September 5, 2006 during the altercation between him and Mr. Paz at MacKenzie Glen School, Mr. Paz called him a “wop” three times. In his testimony the applicant described a heated altercation between the two men and said that they each swore. The applicant’s account in his Application, his testimony, and under cross examination of when and where during this altercation Mr. Paz uttered the term “wop” was not consistent. In all cases, however, he claims that Mr. Paz uttered the comment in the hallway where the altercation began and then later in the caretakers’ lounge after Mr. Paz followed the applicant there. And the applicant testified that Mr. Paz was the aggressor in the altercation.
23Mr. Paz testified that earlier that evening the applicant appeared upset when they discussed how to treat floor scuff marks, so Mr. Paz decided to leave the applicant alone and went to another part of the school to continue cleaning. He testified that while he was on the first floor in front of the washrooms, after the applicant approached him, Mr. Paz asked for help with the garbage. At that point the applicant appeared angry and began yelling at him. Mr. Paz testified that he repeated back to the applicant any insulting words that the applicant yelled at him and told the applicant to go away. Mr. Paz testified that several times the applicant would turn around to leave and then return swearing at him. In Mr. Paz’s witness statement he stated that he could not recall all of the words that the applicant used, but did recall that he was upset by the applicant’s behaviour and wanted him to leave. At the Hearing he testified that he thought the words were like “monkey,” “fuck”, and “bakla.” He also testified that the applicant may have called him a wop and thus he may have repeated that back. But in any event he testified that he did not understand at the time what that term meant.
24Mr. Paz testified that after the incident in the hallway he did not follow the applicant into the caretakers’ lounge and so denies that he made the alleged comments in there. Later, after observing the applicant leave the caretakers’ lounge in his uniform shirt and boxer shorts, Mr. Paz went into the lounge to call Mr. Hartung to help him with an automation problem concerning the parking lot lights. While there, he saw the applicant’s pants hanging up.
25Mr. Hartung corroborated Mr. Paz’s account testifying that he responded to his call to help with the automation issue. He testified that he met Mr. Paz in the caretakers’ lounge, where he saw the applicant’s pants, but not the applicant. While working on the automation problem he asked Mr. Paz how the “new guy” (the applicant) was working out and Mr. Paz told him he was slow but did not mention the earlier argument. When leaving the school, Mr. Hartung noticed the applicant in his boxer shorts speaking with Officer Pyke and so he returned to the school. He testified that the applicant told him the two caretakers had exchanged insults but did not mention the word “wop.”
26Over time, the applicant has not been consistent in his recounting of this altercation. Mr. Paz was credible and forthright in giving his testimony and where the two individuals differ I prefer Mr. Paz’s account. Therefore I am not persuaded that Mr. Paz followed the applicant into the caretakers’ lounge and thus find that on a balance of probabilities the alleged comment in the lounge was not made.
27Mr. Souvran and Mr. McPeak, the Supervisor of Facility Services at Maple High School and five feeder elementary schools including MacKenzie Glen, reviewed the video footage recorded during the altercation. The video system did not record audio. With respect to what occurred in the hallway, their review of the video footage was that, although it was difficult to say for certain, Mr. Paz did not appear to be the aggressor. I found their testimonies credible and their account supports Mr. Paz’s evidence that it was not he who repeatedly approached the applicant but the other way around. This is consistent with Mr. Paz’s testimony that the insults were initiated by the applicant and that he in frustration repeated the same words back to the applicant.
28While the Tribunal has accepted a single comment as a Code breach, it also has considered context and incorporated the analysis of a British Columbia Human Rights Tribunal decision Pardo v. School District No. 43, 2003 BCHRT 71, in which that Tribunal stated that “all the circumstances must be taken into account when considering whether a single comment could constitute a contravention of the [British Columbia Human Rights] Code.” See B.C. v. London Police Services Board, 2011 HRTO 1644.
29I find that the repeating back of an insult several times in this circumstance is similar to a single occurrence in that by both men’s accounts the exchange occurred rapidly and within a few minutes. However, given my finding that the applicant initiated the insulting words in a heated altercation, I find that Mr. Paz repeating the words back in frustration was within the bounds of a reasonable response. See Berisa v. Toronto (City), 2011 HRTO 912 (comment fell within the bounds of a reasonable response). Therefore, in the context of the altercation and under the circumstances, even if Mr. Paz repeated the word “wop” back to the applicant several times I do not find that those utterances would rise to the level of discrimination under the Code.
Investigation of alleged “Wop” comments
30Nonetheless the applicant alleges that he complained to management that Mr. Paz had uttered a discriminatory comment, “wop”, and they did not investigate.
31After the altercation on September 5th, it is not disputed that the applicant called the police. The applicant testified that he talked to Officer Adam Pyke for about ten minutes about the incident. He testified that he told Officer Pyke that Mr. Paz had called him a wop. Officer Pyke testified that the applicant told him that a co-worker had thrown water on him and followed him into the lunchroom where he threatened to kill him. Officer Pyke then went into the school and talked to Mr. Hartung and Mr. Paz. He concluded that no criminal offense had been committed and the investigation ended. He did not agree that the applicant told him about the alleged wop comments and his report does not include any reference to the comments. In the earlier Interim Decision I found that Officer Pyke’s recollection of his discussion with the applicant was reliable. Officer Pyke was a credible witness whose testimony is corroborated by his notes made at the time of the incident. As earlier discussed, I found the applicant’s testimony and evidence to be inconsistent. Thus, taking all the circumstances into account, where Officer Pyke’s evidence differs from the applicant’s, I prefer Officer Pyke’s evidence.
32The applicant also alleges that just after the altercation he told Mr. Hartung that Mr. Paz had called him a “fucking wop.” Mr. Hartung testified that the applicant did not make this statement to him. Mr. Paz testified that he did not tell Mr. Hartung or Officer Pyke about any of the insults that the two caretakers had exchanged. This was corroborated by both Officer Pyke and Mr. Hartung, and Mr. Hartung’s email to Mr. Underwood and Mr. McPeak written shortly after the altercation corroborates his testimony and does not mention the alleged comments. I find that neither Officer Pyke nor Mr. Hartung was told about the alleged comments.
33Mr. Underwood testified that he first became aware of the altercation when he received Mr. Hartung’s email. On September 6th, each of Mr. Paz and the applicant met with Brad McPeak, Peter Souvran, the Principal of MacKenzie Glen, and Mr. Underwood. The meeting with Mr. Paz occurred first. Mr. Paz testified that he told Mr. Underwood that the two had exchanged nasty words, but he could not recall exactly which words he mentioned to Mr. Underwood. He conceded that he may have included the words “monkey”, “wop,” and “bakla.”
34The applicant also alleges that he told Mr. Underwood about the comments. However, he again was inconsistent; at one point he alleged that he telephoned Mr. Underwood and described the altercation including the comments, later he asserted that he wrote Mr. Underwood a letter, and at another point he testified that he explained everything to Mr. Underwood in the meeting held on September 6, 2005, which was also attended by Brad McPeak, and a union representative Jack Botts. Mr. Underwood testified that he did not receive a call from the applicant. In the earlier Interim Decision I found that there is not sufficient evidence to find that the applicant called Mr. Underwood prior to the investigation meeting or that he delivered a letter to him.
35Mr. McPeak testified that he did not remember much of the meeting. Mr. Underwood testified that Mr. McPeak was not present for the entire meeting. Mr. Underwood testified that both caretakers told him their side of the story, and that Mr. Paz stated that the applicant told him he looked like a monkey. Mr. Underwood testified that Mr. Paz did not mention any other comments. Mr. Underwood testified that the applicant told him Mr. Paz had been rude, exploded at him, and that both men exchanged swear words. He testified that the applicant did not claim that Mr. Paz had called him a “wop” or any other specific derogatory term other than the word monkey. Mr. Underwood’s handwritten notes from this meeting corroborate his testimony on the content of the meeting. Mr. Underwood testified that these notes were not a complete recitation of the conversations, however did contain what he perceived to be relevant and that if the applicant had raised the allegation that Mr. Paz had called him a wop that would have been in his notes. Although Mr. Paz was unsure about this, Mr. Underwood was a credible witness whose evidence was supported by his notes made contemporaneously with the investigation into the altercation, and I accept that if the term wop had been mentioned he would have noted that. He and Mr. Paz are consistent in their evidence that the term monkey was mentioned and that was noted. I am not persuaded that Mr. Paz mentioned the term “wop” in the interview.
36At the close of the respondent’s evidence, the applicant requested that he be allowed to call Mr. Botts as a rebuttal witness to testify that the applicant did raise the alleged “wop” comments in the September 6th meeting. He submitted that he did not call Mr. Botts when presenting his evidence because Mr. Botts was listed as a proposed witness for the Union: a respondent in an Application dismissed in the previous Interim Decision. The respondents objected to this request arguing that in the applicant’s lengthy will say where he also wrote what he expected other witnesses to say, he included Mr. Botts and did not say that Mr. Botts would give this testimony.
37Mr. Botts was listed as a proposed Union witness in the Application against it that has been dismissed. The Union’s proposed will say for Mr. Botts does not support the applicant’s position and the applicant did not earlier assert that Mr. Botts would give the evidence in question. Furthermore, the Application against the Union was dismissed in the Interim Decision dated May 24, 2011 and the respondent York Region did not ever suggest that it would call Mr. Botts as a witness. Therefore, as of May 24 2011, the applicant was on notice that Mr. Botts would not be appearing as a witness for the respondents. In between that Interim Decision and the recent two-day Hearing the applicant had over four months to decide to call Mr. Botts as a witness and make those arrangements. In my view, given that there is no indication that Mr. Botts would testify as the applicant states he will and the fact that that applicant has not raised this in timely fashion, it would not be fair or expeditious or helpful to adjourn the hearing and hear from Mr. Botts.
38Following the meeting on September 6th to hear the caretakers’ stories about the altercation, Mr. Underwood testified that he consulted with other members of management, instructed Mr. McPeak to view the video footage of the evening, and reviewed Mr. McPeak’s email outlining what could be seen on that footage, noting that the video cameras did not record sound, in which Mr. McPeak suggested that it was difficult to determine from the footage who was the aggressor although if anything it appeared that the applicant was more aggressive than Mr. Paz.
39Mr. Underwood then discussed the situation with Principal Mr. Souvran who also had viewed the video footage and told him it was inconclusive as to who was at fault, although it appeared to him that, of the two, the applicant was more agitated. Mr. Souvran testified that he watched the footage several times and concluded that it did not appear that Mr. Paz had been very aggressive. He also recalls that at one point the applicant appeared without his pants on.
40Mr. Souvran testified that he never had any conversation with Mr. Paz about the incident, and at no point did the applicant raise with him the alleged “wop” comments. In fact no one ever suggested to him that the alleged comments were made. Mr. McBean also testified that he was not aware of the applicant raising any allegations that Mr. Paz had called him a “wop.”
41As I found in the Interim Decision with respect to other allegations, I am persuaded that since the time the applicant filed his original Complaints, he has embellished in his submissions for this hearing the account of what he told the Employer during the September 6th meeting, what he told Mr. Hartung, and what he told Officer Pyke.
42In the circumstances, the applicant’s evidence does not demonstrate that the Employer was aware of any allegations that Mr. Paz had called the applicant a “wop”. On the other hand, the evidence is persuasive that the employer did investigate the altercation including the allegations that the two caretakers had exchanged the insult “monkey” by interviewing each caretaker, reviewing the video footage, and considering Mr. Hartung’s email report of the incident made just after it occurred. Therefore I find that the Employer did investigate the altercation, and it is my view that if the alleged comments were raised that these too would have been included in this investigation. As the Employer, however, was not specifically apprised of the alleged comment “wop”, it was not under a duty to include this in its investigation.
Reprisal
43Section 8 of the Code states:
Every person has a 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 threat of reprisal for so doing.
Decision to extend probation and transfer the applicant out of MacKenzie Glen School
44On June 30, 2006, when the applicant became a full-time probationary caretaker assigned to the MacKenzie Glen Public School, his probationary period was 60 days. Mr. Underwood testified that his involvement with the applicant as a probationary caretaker would be to receive evaluations of his work conducted by his Supervisor of Facility Services who at that time was Mr. McPeak. Mr. Underwood was responsible to review these evaluations and make decisions as to whether the applicant would move forward through the probationary process. Because the applicant began his probationary period in the summer when supervisory personnel are not on site except for one or two days per month, Mr. Underwood testified that he couldn’t recall whether any evaluations were performed for the applicant during the summer of 2006. However, even without these reviews, in the absence of an issue or event that suggests they should not be retained, such as occurred on September 5th, probationary caretakers may still be approved for full-time employment at the end of their probationary period.
45Mr. Souvran testified that he was concerned about the applicant’s decision making because in his view it was inappropriate for an employee to walk around an elementary school in boxer shorts when either a student or a parent could have come by the school and seen the applicant in that state. He was also concerned that the two caretakers would not have a productive caretaking team relationship going forward. Mr. Souvran communicated his concerns but left the decision of how to handle the situation to Mr. McPeak and Mr. Underwood. He was later informed that the applicant would be transferred and he had no further involvement with the applicant.
46Mr. Underwood testified that he agreed with Mr. Souvran’s concerns and felt that the applicant’s decision to take off his pants in an elementary school setting was the key factor in deciding to extend his probation and transfer him to an environment where he would receive closer supervision. Mr. Underwood testified that although he could have terminated the applicant’s employment, because this was the applicant’s first incident and because over the summer there had not been an opportunity for either the principal or the Supervisor of Facility Services to evaluate the applicant’s performance, he and management decided that a transfer to a high school would be appropriate because there a Supervisor of Facility Services is present most of the time on day shifts and a Lead Caretaker acts as the supervisor on the afternoon shift. He testified that he felt a transfer would give the applicant a fresh start with a new principal, supervisor, and caretakers who would not be biased against him because of the September 5th altercation. Mr. Underwood testified that because he had not been apprised of the allegation that Mr. Paz had called the applicant a wop, that allegation had not factored into the decisions to extend the probation or to transfer the applicant.
47Although the applicant was temporarily moved the next day to Maple High School, Mr. Underwood decided to present the applicant with a letter on September 18th that documented the extension of his probation and the temporary transfer to Maple High School followed by a transfer to another high school when a vacancy became available. The September 18th meeting was attended by the applicant, Mr. McPeak, and union representative Rene Bissonette.
48In the letter given to the applicant at the September 18th meeting, Mr. Underwood wrote that the transfer “allows us to further review your progress in a more directly supervised environment.” Mr. Underwood’s letter also stated that the investigation into the September 5th altercation was inconclusive as to who was to blame or what words were exchanged, but that concerns arose “regarding possible perceptions about the removal of your trousers and then walking both inside and outside the school.” Mr. Underwood testified that the September 18th meeting went smoothly and the alleged “wop” comment was not raised. Mr. McPeak testified that he was not involved in the decision to extend the applicant’s probation or to transfer him. He recalled that the applicant did not object to the extension or transfer and does not recall that the topic of the alleged “wop” comments, or in fact that any of the other allegations that have been dismissed came up at all.
49Mr. Underwood testified that the applicant was ultimately transferred to Unionville High School because it was the first high school where a vacancy occurred that was as close to the applicant’s home as possible. In that new location, Mr. Underwood’s peer Mr. Carberry was the Assistant Manager in charge and so Mr. Underwood testified that from that time on he had no role in the supervision of the applicant or in the decision to terminate his employment.
50Kevin McBean who, as noted earlier, was at the time the Employer’s Manager of Caretaking Services testified that six Assistant Managers reported to him and handled the day-to-day decision making respecting probationary employees. The two assistant managers who would have been responsible for issues concerning the applicant over the period of his employment were Mr. Underwood and Jude Carberry. Mr. McBean testified that the expectations for a probationary caretaker to be hired as a caretaker are that the individual can follow instruction, work independently, work well with fellow employees, forge positive relationships with school staff and students, and has good attendance.
51Mr. McBean testified that he was told about the September 5, 2006 altercation and told that the applicant had been outside the MacKenzie Glen School in his boxer shorts. He testified that the Employer’s concern was that the applicant had deemed it appropriate to remove his pants while at school and stand outside the school in that state. This was the first day of the 2006-2007 school year and not the sort of behaviour the Employer could condone. Mr. McBean testified that both the altercation with a fellow caretaker and the behaviour of standing outside an elementary school in his boxer shorts were causes for concern.
52Mr. McBean testified that this sort of behaviour could have resulted in an immediate termination and in fact that would have generally have happened. In this case, however, corroborating Mr. Underwood’s evidence, he testified that the view was that because this was the first day of school, the duties over the summer had been different that those in the school year, and there is less supervision in the summer for caretakers, so rather than terminate the applicant he would be given a second chance and a fresh start in a new school where he would have new colleagues and more supervision. Mr. McBean testified that while the applicant may have shown that he was able to perform his job during the summer, this incident raised questions regarding whether he would be able to work effectively as a full-time caretaker during the school year.
53Mr. McBean testified that the decision to extend the applicant’s probation was made by his Assistant Manager Mr. Underwood and that on these types of decisions he generally takes his Assistant Manager’s advice. The allegation of a “wop” comment played no role in his view as he was not even aware of that.
54On a balance of probabilities I find that the evidence is persuasive that the decision to extend the applicant’s probation and to transfer him out of MacKenzie Glen and ultimately to Unionville High School was not made on the basis of any complaints by him that Mr. Paz called him a “wop” during the September 5th altercation.
Decision to terminate the applicant’s employment
55While temporarily at Maple High School, Jeff Hartung was the Lead Caretaker and the applicant’s supervisor. Mr. Hartung testified that the applicant’s performance began well and then “fell off completely.” He testified that he concluded that the applicant did not understand how to do his job. Furthermore, other caretakers requested that he not pair the applicant with them. After the applicant left Maple High School for his assignment to Unionville High School, Mr. Hartung’s supervisor Mr. McPeak asked him to write comments on the applicant’s performance. His written comments were that the applicant had difficulty working in a group and would blame others, not taking responsibility for his own mistakes. He testified that after writing that performance review, he did not have any further involvement with the applicant during his employment with the York Region.
56On September 26, 2006, the applicant was transferred to Unionville High School. During the applicant’s assignment at Unionville High School, David Lutz was the Lead Caretaker, Dan Hunter was the Employer’s Supervisor of Facility Services, and Jude Carberry was the Assistant Manager of Caretaking for York Region, whose responsibilities included Unionville High School. Mr. Carberry had understood that because of the altercation and the fact that the applicant had appeared at MacKenzie Glen school without his outer pants on, he had been transferred for a fresh start with new supervisors and colleagues.
57Mr. Lutz testified about the performance reviews he was required to complete for any probationary caretaker including the applicant. These were daily checklists called training profiles that would indicate where a probationary caretaker had missed or failed to complete a cleaning task. Mr. Lutz gave detailed descriptions of what he perceived the applicant’s performance issues were and these were also documented in the training profiles and regular emails to his supervisor Mr. Hunter. Mr. Lutz testified that the reason he sent Mr. Hunter emails is because Mr. Hunter was present on the day shift whereas Mr. Lutz was present for the afternoon shift. Therefore, in order to alert Mr. Hunter to issues he may need to address from the previous shift, he wrote Mr. Hunter emails at the end of his afternoon shifts. I am persuaded that whether or not his evaluations were accurate, Mr. Lutz felt that the applicant was performing poorly.
58Mr. Lutz testified that he was not aware of the alleged “wop” comments or whether or not the applicant had complained to management at MacKenzie Glen or Unionville about those alleged comments and therefore that was not a factor in his descriptions of the applicant’s performance. The applicant did not present any evidence that Mr. Lutz had any communication with management at MacKenzie Glen regarding the investigation into the altercation on September 5, 2006.
59Mr. Lutz testified that on October 12, 2006 the applicant by telephone informed him that he was sick and would not be in the rest of that week. The applicant supplied him with no further information and that is the last time he heard from the applicant. Mr. Lutz testified that he had no role in the decision to terminate the applicant.
60Mr. Carberry testified that Mr. Hunter requested that he join a performance review meeting in progress at Unionville on October 11, 2006. Mr. Carberry had been aware of the performance issues as Mr. Hunter had forwarded reports per the practice that the progress of probationary caretakers would be monitored and forwarded to the Assistant Manager of Caretaking. Mr. Carberry testified that he uses the training profiles to put together performance appraisals that ultimately are used to determine if a probationary employee will be kept on past their probationary period. At the meeting Mr. Carberry reviewed a plan that was developed to assist the applicant going forward.
61Later, Mr. Carberry was informed that the applicant called in sick on October 12th and had not returned to work thereafter or provided any information about the nature of his illness. Therefore, on October 18, 2006, Mr. Carberry left a voice message for the applicant asking him to call back and advising that in order to return to work the applicant would need to present a medical note. He phoned three times that day and did not hear back from the applicant. On October 25, 2006 Mr. Carberry again called the applicant and asked him to attend a meeting on October 27th. The applicant did not return this call but did appear at the meeting on October 27, 2006.
62At that meeting Mr. Carberry terminated the applicant’s employment telling him he had not performed up to the standards expected of a School Board caretaker. Mr. Carberry testified that it was his decision to terminate the applicant’s employment after he conferred with his supervisor Mr. McBean. Mr. Carberry further testified that he did not know of any allegations respecting the “wop” comments and that the decision reached by him and Mr. McBean related solely to performance issues. Mr. Carberry testified that at no point prior to or at this meeting did the applicant raise the alleged comments by Mr. Paz.
63Mr. McBean testified that Mr. Carberry made the decision to terminate the applicant’s employment for lack of performance and that again the alleged “wop” comment played no role as the Employer was not aware of that.
64On a balance of probabilities I find that the evidence supports that the decision to terminate the applicant’s employment was made by Mr. Carberry in consultation with Mr. McBean solely for performance reasons and that neither of them had been informed that the applicant had complained that Mr. Paz allegedly called him a wop on September 5, 2006.
65In summary, I find that the actions of the respondents to extend the probationary period, transfer and subsequently terminate the applicant’s employment did not constitute a reprisal within the meaning of the Code.
66The Application is dismissed.
Dated at Toronto, this 7th day of November, 2011.
"signed by"_________________
Judith Hinchman
Member