Hui v. EPM Global Services, 2011 HRTO 2121

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eddy Hui Applicant

-and-

EPM Global Services Respondent

DECISION

Adjudicator: Sheri D. Price Date: November 23, 2011 Citation: 2011 HRTO 2121 Indexed as: Hui v. EPM Global Services

APPEARANCES

Eddy Hui, Applicant ) Self-represented EPM Global Services, Respondent ) Stephen Bernofsky, Counsel

INTRODUCTION

1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code"). The applicant alleges that the respondent discriminated against and harassed him with respect to employment on the basis of disability contrary to s. 5 of the Code; and that the respondent reprised against him contrary to s. 8 of the Code.

2By Case Assessment Direction dated June 2, 2011, the Tribunal decided on its own initiative to convene a summary hearing pursuant to Rule 19A of the Tribunal's Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Application if, following the summary hearing, it found that the Application had no reasonable prospect of success.

3The summary hearing was held by teleconference on November 17, 2011, and the applicant was given an opportunity to explain how he could prove his allegations that the respondent infringed his rights under the Code.

4For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.

BACKGROUND

5Although the respondent may well dispute some or all of the applicant's allegations, it has not yet been required to file a Response to the Application. Accordingly, in determining whether the Application has a reasonable prospect of success, I have considered only the facts as asserted by the applicant.

6On June 15, 2010, the respondent offered the applicant a three-month employment contract working as a Quality Control ("QC") Operator. In this role, the applicant was to inspect electronic components and assemblies to ensure adherence to certain specifications. The applicant accepted the respondent's offer and started work on or about June 16, 2010.

7Three weeks into the applicant's contract, the respondent terminated the applicant's employment. The stated reason for the termination was that the respondent had determined that the applicant was not a suitable candidate for permanent employment.

8In his Application and during the Summary Hearing, the applicant alleged that he was mistreated by the respondent throughout the course of his employment. Specifically, the applicant alleges that the following were incidents of workplace discrimination and harassment which he experienced:

• The respondent failed to fulfill a verbal promise made to the applicant by the QC Supervisor to provide the applicant with IPC training. The applicant submits he needed IPC training in order to do his job well;
• The respondent failed to provide the applicant with a password to access the respondent's computer system. The applicant submits that he needed such access in order to look at various details about the products he was working on so that he could do a good job without making any mistakes. The applicant alleges that because he did not have his own password, other people, such as the team leader, would have to sign him into the computer.
• The respondent failed to make arrangements for the applicant to use the "hand scanner" which employees normally use to scan in and out of work. The scanner apparently records employees' hours of work and is used for payroll purposes. The fact that the applicant could not use the hand scanner meant that he had to write down his hours of work and submit them to his supervisor so that he could get paid. The applicant acknowledges that he received all of the pay to which he was entitled. However, he alleges that his pay was delayed by two weeks. The applicant submits that the failure to arrange for him to use the hand scanner may have contributed to the delay in pay.
• The respondent terminated the applicant's employment on July 8, 2010 on the stated basis that he was not suitable for "permanent" employment. However, the applicant submits that he was not a "permanent" employee. Rather, he was a "contract" employee. The applicant submits that terminating a contract employee such as himself on the basis that he was not suitable for "permanent" employment was a form of harassment.
• The respondent never gave the applicant a stamp with which to stamp a finished product showing that he had inspected it. The applicant contends that this was discriminatory and that the respondent may not have given him a stamp because they did not think he was qualified to do the work.
• The respondent terminated the applicant's employment in July 2010 without warning and without any prior discussion with the applicant about any perceived problems with his work.

ANALYSIS

Discrimination on basis of disability

9The applicant contends that the respondent's actions, outlined above, constituted discrimination and/or harassment within the meaning of s. 5 of the Code. As the applicant points out, s.5 states that every person has a right to equal treatment with respect to employment without discrimination (s.5(1)) or harassment (s.5(2)) because of disability, among other things.

10The applicant indicates that he has a "disability" within the meaning of the Code, namely, a hearing problem.

11The Tribunal's power to hear and determine human rights applications is based on the Code, which, among other things, prohibits discrimination and harassment with respect to employment on the basis of the grounds set out in the Code. The Tribunal does not have the power to remedy mistreatment, "discrimination", or "harassment" which is not based on a prohibited ground in the Code. Thus, in order to succeed in his Application, the applicant would have to prove not only that he was mistreated by the respondent during the course of his employment and when his employment was terminated, but that such mistreatment was linked to a prohibited ground in the Code.

12During the summary hearing, the applicant candidly acknowledged that he did not have any evidence linking the alleged incidents of workplace discrimination and harassment, outlined above, to the fact that he has a disability. In fact, the applicant candidly acknowledged that he could not say that they were linked. The applicant suggested that perhaps at some point during his employment, his supervisor had told him to do something and he did not hear his supervisor (because of his disability) and therefore did not do as he was asked. He surmised that this might have happened because it had happened to him in the past, in other jobs. However, the applicant acknowledged that he had no evidence or any reason to believe that such a thing had ever happened while he was employed by the respondent. He only said that "maybe" it had happened.

13During the Summary Hearing, the applicant also suggested that the respondent may have mistreated him and decided to terminate his employment because of his age or his appearance. This suggestion arose for the first time when the applicant was replying to the respondent's submissions. Again, the applicant acknowledged that he had no evidence that could establish any link between the manner in which the respondent allegedly treated him and his age or appearance, although he felt that there was a link.

14The applicant may honestly believe and genuinely feel that the respondent treated him the way it allegedly did because of his disability, age, appearance or other prohibited ground under the Code. However, the applicant's belief that the respondent mistreated him on the basis of his disability, age, appearance, etc. is not evidence. As I explained during the Summary Hearing, it is not open to the Tribunal to make a finding of discrimination or harassment based only on the applicant's feelings or beliefs. The Tribunal cannot find that the respondent discriminated against or harassed the applicant unless there are facts alleged which, if true, would allow the Tribunal itself to link the respondent's actions towards the applicant to his disability or another prohibited ground under the Code.

15In his Application and at the summary hearing, the applicant did not allege any facts, which, if true, would allow the Tribunal to conclude that the respondent mistreated him on the basis of his disability or any other prohibited ground under the Code. The applicant's claim that the respondent discriminated against him or harassed him contrary to s.5 of the Code therefore has no reasonable prospect of success and must be dismissed.

Reprisal

16The applicant also alleges that the manner in which the respondent treated him during the course of his employment and the termination of his employment constituted reprisals contrary to the Code.

17In order to succeed in a claim of reprisal under s. 8 of the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against him for claiming or enforcing his rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person's rights under the Code: Noble v. York University, 2010 HRTO 878.

18In this case, there is no suggestion that the respondent mistreated the applicant or terminated his employment for any of the reasons identified in s.8 of the Code. The applicant himself states that the reason the respondent did the things it did is "not clear" and that he cannot prove why the respondent "reprised" against him.

19During the summary hearing, the applicant explained that he "feels" that the respondent reprised against him because he was continuously asking to be provided with a number of things, such as IPC training, a computer password, to be put on the hand scanning system, etc., all to no avail. The thrust of the applicant's submission is that the respondent reprised against him by ignoring his continuous requests and by ultimately firing him because the applicant was "bothering" the respondent. In particular, the applicant suggested that his continuous requests that his supervisor, team leader or colleagues sign him into the computer using their passwords made them "mad".

20Even if the applicant is right that the respondent ignored his requests for training, passwords and the like and subsequently terminated the applicant's employment because the respondent was bothered by the applicant's continuous requests, this would not constitute a reprisal within the meaning of the Code. Retaliating against an employee because the employer perceives him as bothersome may not be fair but it does not fall within s.8 of the Code.

21As noted above, in order for retaliatory actions to fall under s.8 of the Code, they must be linked to the applicant having done one of three things: attempting to claim or enforce his rights under the Code; starting or participating in proceedings under the Code; or refusing to infringe someone else's rights under the Code. There is no suggestion in this case that the respondent ignored the applicant's requests or terminated the applicant's employment because the applicant did any of these three things. I therefore find that the applicant has no reasonable prospect of success in proving that the respondent reprised against him contrary to s.8 of the Code.

22For the reasons outlined above, I find that the Application has no reasonable prospect of success and it is therefore dismissed.