Rampersaud v. Primary Response Inc., 2011 HRTO 2172

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ramnarse Rampersaud Applicant

-and-

Primary Response Inc., Harsha Oza and Tom Fulford Respondents

DECISION

Adjudicator: Brian Eyolfson Date: December 2, 2011 Citation: 2011 HRTO 2172 Indexed As: Rampersaud v. Primary Response Inc.

APPEARANCES

Ramnarse Rampersaud, Applicant ) Glen Morrison, Representative Primary Response Inc., Harsha Oza and Tom Fulford, Respondents ) Jeremy Hann, Counsel

INTRODUCTION

1The applicant was employed by Primary Response Inc. (“Primary”) as a parking supervisor. Primary provides parking enforcement and security services to Sheridan College (“Sheridan”) at its campus in Brampton.

2The applicant filed an Application on March 30, 2009, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of race, colour, place of origin, ethnic origin, disability, and age in employment, contrary to sections 5(1), 5(2) and 9 of the Code. In addition to Primary, the Application names Harsha Oza and Tom Fulford as respondents. Ms. Oza was employed as a dispatcher with Primary at Sheridan’s Brampton campus. Mr. Fulford is a manager of training and human resources with Primary, and was involved in the termination of the applicant’s employment.

3The applicant, who self-describes as “a Black male of East Indian descent”, alleges in his Application that he was subjected to discrimination and harassment, and that the undermining of his efforts and achievements created a poisoned work environment. He alleges, among other things, that “there were several subtle actions and efforts on the part of” the individual respondent, Ms. Oza, “to make him look bad, inefficient and unable to perform his duty, for the sole purpose of making him loose his job”, and that the termination of his employment was discriminatory. With respect to the ground of disability, the applicant asserts that he underwent heart surgery.

4In their Response to the Application, the respondents submit that there was an egregious incident involving the exchange of unauthorized parking passes in return for free beverages in the cafeteria that resulted in the termination of the applicant’s employment. They deny discrimination in any form. With respect to the applicant’s allegations concerning Ms. Oza, the respondents submit that the applicant and Ms. Oza are of the same ethnic origin, and deny that she undermined the applicant.

Request For An Order During Proceedings

5The respondents filed a Request for an Order During Proceedings (“Request”), seeking dismissal of the Application under s. 45.1 of the Code on the basis that the substance of the Application had been appropriately dealt with in a proceeding pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the “ESA”), or, in the alternative, by the principles of issue estoppel and abuse of process. As the respondents’ Request was brought less than three weeks prior to the hearing, the Tribunal directed that the Request be dealt with at the outset of the hearing.

6In their Request, the respondents submitted that an Employment Standards Officer (“ESO”) concluded that the applicant was not entitled to termination pay since he had been guilty of wilful misconduct. The respondents attached to their Request a copy of the ESO’s Reasons for Decision, denying the applicant’s claim under the ESA. The Reasons for Decision do refer to s. 2(1)(3) of O. Reg. 288/1 under the ESA, which provides that “[a]n employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer” is not entitled to notice of termination or termination pay under the ESA; however, the Reasons for Decision do not indicate on what basis the claim is denied. Further, there is no indication in the Reasons for Decision that any of the applicant’s Code-related allegations in his Application were addressed in the ESA proceeding.

7After reviewing the parties’ materials, and considering their submissions, the Tribunal indicated that it was not prepared to grant the respondents’ Request, without prejudice to the parties’ ability to present evidence related to the issues raised in the Request, and to raise those issues at a later stage in the proceeding. Based on the information before the Tribunal, it did not appear that the ESA proceeding had dealt with the substance of the Application within the meaning of s. 45.1 of the Code, as it did not appear that any of the applicant’s Code-related allegations were considered. See Noel v. Frater, 2009 HRTO 1646, at para. 10, and Little v. TeleTech Canada, 2009 HRTO 1763, at para. 12. With respect to the doctrines of issue estoppel and abuse of process, as it was not clear from the ESO’s Reasons for Decision on what basis the applicant’s ESA claim was denied, it could not be determined if any issue before the Tribunal was decided in the ESA proceeding. In addition, there was no indication that any of the applicant’s allegations of discrimination and harassment were addressed in the ESA proceeding, or that any human rights principles were applied in the ESO’s Reasons for Decision. In the circumstances, it was not apparent that proceeding with the Application would involve any re-litigation of issues. See Snow v. Honda, 2007 HRTO 45, at paras. 36-48, and 52-60.

EVIDENCE

8In addition to the applicant and the individual respondents, Suzanne Gilbert and Santo DiFranco testified at the hearing on behalf of the respondents. Ms. Gilbert was a manager of security, parking, and housekeeping with Sheridan at the time the applicant’s employment was terminated. Mr. DiFranco was a site supervisor with Primary. The parties also submitted as evidence documents and an audiovisual recording of a meeting between the applicant and the individual respondent, Mr. Fulford, when the applicant’s employment was terminated on January 13, 2009.

ANALYSIS AND DECISION

Assessment Of Credibility

9The issues addressed in this Decision turn largely on my assessment of the credibility of the applicant, the individual respondents, and the other witnesses. In assessing credibility, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

10I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, inconsistencies and contradictions in relation to other witnesses’ evidence, and observations as to the manner in which the witnesses gave their evidence.

Background

11The applicant started employment with Primary on April 21, 2008, when Primary took over a parking enforcement and security services contract at Sheridan’s Brampton campus from the applicant’s previous employer.

12The applicant testified that he had been in the security field since 1998, when he was employed as a security guard. In 2002, he became a parking supervisor at Sheridan with Group 4 Security. He testified that when he later started with Primary, he was not given new procedures and there was no difference in his tasks. He also testified that he was the oldest employee and the person with the most seniority at the site. With respect to age, he testified that he could “tell from looks.”

13Ms. Oza was also employed with Group 4 Security before Primary. In March 2009, she left Primary to join Sheridan. As a dispatcher with Primary, she was located at a desk near the main entrance of a building. She monitored video from cameras located on campus and dispatched guards to take care of situations. She also set up parking passes for staff who paid by payroll deduction.

14Ms. Oza explained that Mr. DiFranco was her supervisor at Primary, and he reported to Ms. Gilbert at Sheridan. She testified that she dealt with Ms. Gilbert, indirectly, almost every day, and, directly, once a week when she came on site. She would answer Ms. Gilbert’s questions regarding what was going on, and what sort of problems came up regarding issuing parking to staff members.

15Mr. Fulford worked for Primary since April 2007. He explained that Primary and Sheridan communicated through Sheridan’s client representative, Ms. Gilbert, and Primary’s client services manager, Eric Lizotte. On a day-to-day basis, at Sheridan’s Brampton campus, Ms. Gilbert communicated with Primary’s site supervisor, Mr. DiFranco. Mr. Fulford testified that he was primarily responsible for hiring, firing, discipline, and accommodation processes.

16Ms. Gilbert explained that she worked for Sheridan to ensure that the agreement between Primary and Sheridan was maintained, and that security was available and up to par. She also wrote and provided all policies and procedures for security. She confirmed that her “point of contact” at Sheridan’s Brampton campus was Mr. DiFranco.

17Ms. Gilbert testified that the applicant had worked at Sheridan for about seven years, and Ms. Oza for about two years, and they both reported to Mr. DiFranco. She testified that, as a parking supervisor, the applicant’s role was to maintain good order in Sheridan’s parking lots and write parking tickets. He was also in charge of the officer in the parking booth who collected money, and he relieved that person.

18Mr. DiFranco confirmed that both the applicant and Ms. Oza reported to him, and that he supervised the applicant for about eight months. As a site supervisor, he oversaw day-to-day operations with site guards, liaised with Sheridan, enforced rules and regulations, and dealt with customer service. He testified that Ms. Gilbert was their representative for Sheridan and she was the person they would report to. She would also give them jobs, or details they needed to look after, or correct. He confirmed that policies and procedures were set out by Sheridan.

Parking Passes And Free Parking

19With respect to free parking at Sheridan, the applicant explained that it either came from Ms. Gilbert or the site supervisor. He explained that people got free parking on a daily basis, including cafeteria, security, cleaning, janitorial, residence, and daycare staff, grounds crew, cooperative workers that worked from time to time, and contractors. He explained that a blue sticker marked “special” would be placed on their rear view mirrors. Cars allowed to park free on a daily basis were given, from Ms. Gilbert, a complimentary pass for the day, distributed through the security guard at the parking booth. He testified that, at the parking booth, they only gave out free parking to those individuals for whom they were given a memo indicating that they were to get free parking on a daily basis. He testified that “the rest” were given out by the site supervisor or Ms. Gilbert. He testified that he has never handed out free parking to anyone.

20Ms. Oza testified that parking passes or permits could be purchased for one, two, or three semesters. She testified that they were pink and were hung from rear view mirrors. Students could only purchase parking permits (pink cards) from a registration desk, after which they would obtain an access card (white card) from Ms. Oza. Staff could also purchase a permit and bring it to her. Staff who paid by payroll deduction were given a form to complete by Ms. Oza, which she passed on to the payroll department. She would issue them both a permit and an access card. Ms. Oza testified that the only way she could give staff a permit is if they paid by payroll deduction.

21Ms. Oza testified that, sometimes, if someone was on campus as a volunteer, with Ms. Gilbert’s permission, she would receive a temporary parking permit from her, with instructions that the person would pick it up. Ms. Oza testified that only her, the site supervisor (Mr. DiFranco), and Ms. Gilbert were authorized to credit access cards.

22Ms. Oza testified that visitors who stayed less than 20 minutes were allowed a visitor pass, and were supposed to park in designated areas. Day passes, which were rectangular pieces of paper with date stamps, were $8.00 or $8.50 per day, and were obtained from the guard at the parking booth. There were also guest passes for events, which were sent to the guard at the parking booth to be given out to a list of guests. Ms. Oza testified that she had no authority to give out visitor passes, and had no involvement in the sale of day passes. She also had no authority to issue guest passes; she would receive them from Ms. Gilbert, or Mr. DiFranco, and pass them on to the guard in the parking booth.

23Ms. Oza testified that only her computer, and the supervisor’s computer at Sheridan, had the software program to set up access cards. She used it every day because she had to issue access cards, and if a card was not working she could check out why and solve the problem. She testified that anyone who covered her when she was on a break, or off duty, had access to the program. She testified that the applicant did not have access, and that he very rarely relieved her.

24Ms. Gilbert testified that, in December 2008, according to parking regulations, everyone had to pay for parking, with exceptions. She referred to a list of people attending the athletic therapy centre, guest speakers, people visiting Sheridan’s president or vice-president, and members of the board of governors. She explained that she would send people an electronic pass for their guests. If there was not enough time, the parking supervisor would be called and told to allow the person to park without charge. She testified that no one else had the authority to allow free parking.

25Ms. Gilbert testified that cafeteria staff had to pay for parking. She was asked if there had been a different policy “further back”. She explained that, starting at a different campus, there had been leniency towards people in the cafeteria, because they started well before parking staff arrived and were paid minimum wage. One person transferred to the bookstore and asked the bookstore manager why parking was not free. The manager wanted something done about it. Ms. Gilbert went to the vice-president and explained what had gone on in the past. He asked her to investigate and find out the number of people it would affect. She got the information, went back to the vice-president, talked to him about part-time teachers, and decided it would open up a whole “can of worms” with other people thinking they should have free parking. She explained that they just “canned” the whole thing and decided there would be no free parking. A memo was issued stating every person had to pay for parking. Ms. Gilbert testified that the memo went to all site supervisors at both campuses, which was not Mr. DiFranco at the time. It also went to facilities management because some were parking without paying. No one else got the memo. She thought that this was in 2006 or 2007.

26Ms. Gilbert testified that she told the cafeteria manager at the Brampton campus that she would have to pay for parking. After that, she noted the cafeteria manager, who parked in a particular area, and other people in facilities, had parking passes. She did not check other cafeteria staff who parked in the larger parking lots.

27Mr. DiFranco testified that, in 2008, there was no free parking. It had been an issue, and he had a mandate to get the parking situation under control. The only time there was free parking was when they were sent emails regarding guests that were passed on to the person in the parking booth or the parking supervisor. He testified that specific instructions from the president, vice-president, or someone with Sheridan, were needed. He said that they needed a paper trail.

Applicant’s Allegations of Discrimination During His Employment

The Applicant’s Return To Work After Surgery

28The applicant testified that, in December 2007, he had bypass surgery and was off for six months. He testified that, when he came back, Ms. Oza was “instigating with managers” to have him demoted, or work as a patrol guard, and not as a parking supervisor. He testified that Ms. Oza wanted “her own people”, referring to the individual who works in the parking booth, to be a supervisor, and another individual, to work in the parking booth.

29Ms. Oza testified that, on the contrary, she told the supervisor that the applicant is an excellent worker because he has an “eye to detail”, and suggested he should be brought back. She testified that she had no authority, but could just make a suggestion.

30I note that this allegation is not included in the Application. The evidence given by the applicant concerning this allegation was also very limited. In addition, in cross-examination, the applicant clarified that he “wasn’t present, but it came back to [him].” He did not state who told him that Ms. Oza was trying to get him demoted, and how they would have known. In light of the limited and unspecified hearsay nature of the applicant’s evidence, and considering Ms. Oza’s clear denial of the allegation, I do not find that the applicant has established on a balance of probabilities that Ms. Oza tried to have him demoted.

Inappropriate Comment

31The applicant testified that most of his co-workers were of East Indian descent and they were “talking in their language” and making fun of him. He testified that, one time, he was passing by, and they were talking in their language, and they all started laughing. He testified that he was embarrassed, and he was called “son of slave” by Ms. Oza. The applicant was asked what that meant. He explained that his “fifth generation came from India as indebted Indians to Trinidad to work in the sugar cane plantations”, so they were called “son of slaves or children of slaves.” In cross-examination, he testified that those present when Ms. Oza made the comment were mostly of Indian origin. He could not remember the context of the statement. When asked if she called the applicant “son of slave”, Ms. Oza clearly testified that she does not know what that means, and that she does not swear.

32Ms. Oza was asked about her ethnic origin and testified that she is from India. She testified that she understood from the applicant that he is from Guyana, and that Guyanese have ancestors from India. She testified that they had two security guards in parking, and three security guards and one supervisor inside, and that their ethnic origins were all different, but that she was never concerned with origins. She knew that two or three of the guards that she worked with were from India. Mr. DiFranco testified that of the twelve or more staff that he supervised, there was a variety of backgrounds, and maybe two were Indian.

33Mr. DiFranco was asked about the relationship between the applicant and Ms. Oza. He testified that, during the short time that he was there, there was tension between them some days, and he tried to be the mediator. He did not recall overhearing any racial or discriminatory comments between them, and he did not recall the applicant ever bringing complaints of discrimination or harassment to his attention.

34The allegation that Ms. Oza called the applicant “son of slave” is not included in the Application, and there are otherwise no allegations in the Application that Ms. Oza made inappropriate comments related to Code grounds. The applicant’s evidence concerning this allegation was also lacking clarity in terms of what he saw and heard. He testified that Ms. Oza and others present at the time were “mostly” of Indian origin, and that they were talking “in their language”. He did not indicate what language the comment was made in, and, if the comment was not made in English, if he understood the language that the comment was made in. He also testified that he was passing by, and that he could not remember the context of the statement. I also have no reason to doubt Ms. Oza’s clear and forthright evidence that she does not know the meaning of the alleged comment. In the circumstances, I do not find that the applicant has established on a balance of probabilities that Ms. Oza made the alleged comment.

Radio Calls

35The applicant was asked about the allegation in his Application that, on numerous occasions, he made calls to the control desk that were ignored, and that information relevant to the performance of his duties was often denied. He testified that a person who was not allowed on Sheridan property was found sleeping in a stairwell. The applicant testified that the site supervisor asked Ms. Oza, at the control desk, to call the police to have the person removed, and told him that he should be waiting by the main entrance of Sheridan to escort the police to where the unauthorized person was. He remained there for approximately an hour and was not informed by Ms. Oza over the radio that the unauthorized person was moved to the security office. He testified that, if the police had shown up, he would have taken them to the wrong location, which would have reflected badly on his part as a security officer. The applicant also referred to a big fight involving an individual, a security officer, and the site supervisor, and testified that he was also not informed about this incident on the radio.

36Although the applicant alleges in his Application that he was not made aware of emergency services’ arrival to the site, whereas other employees were, he testified that he was not aware whether or not other security officers were being treated in a similar manner. He testified that he did not deal much with inside security staff. He communicated with the guard at the parking booth and the site supervisor. Most of the time, he would be out in the parking lot doing his patrol. The only time he would go to the parking booth is when he had to relieve the guard for morning and evening breaks, for lunch, and on Friday for prayer.

37In cross-examination, the applicant did not deny that all those who carried a radio were tuned to the same channel. He testified that if he did not hear his name called, he did not answer. He denied ever turning his radio down or leaving it in the truck.

38Ms. Oza testified that if she got a call that there was a problem that security needed to attend, or if she got a distress alarm on her system, she would dispatch guards right away. She testified that all security guards, including parking, had radios, and that anyone who had a radio would hear her message. She testified that it was not possible to radio just one guard and have no one else hear, or to exclude one person.

39Ms. Oza explained that if there was an emergency, she called “911” and radioed all security guards, saying an ambulance was on its way to a particular location so that everyone knew the way the vehicle would travel from entering the campus. She testified that parking guards were supposed to meet with the emergency vehicle and escort it to the location of the emergency.

40Ms. Oza was asked about the allegation that she excluded the applicant from radio communications. She testified that she has no control over who listens, and who does not, to what is broadcast on the radio. In cross-examination, she testified that, many times, her radio would only work one way, and she could listen to the applicant but he would not get her reply. She reported this to Ms. Gilbert and they later got new radios. She confirmed that it was not done purposely.

41I accept Ms. Oza’s evidence that, given the technology used, she could not exclude the applicant from radio broadcasts. With respect to his allegation that she ignored his calls or denied him information, I have no reason to doubt Ms. Oza’s evidence that, many times, her radio would only work one way and the applicant would not get her reply. There is no evidence before me concerning the experiences of other security guards with radio communications, and, based on the applicant’s testimony, contrary to the allegation in his Application, he was not aware whether or not others were treated similarly. In the circumstances, while there may have been some problems with radio communications, I do not find that the applicant has established on a balance of probabilities that Ms. Oza ignored his radio calls, or denied him information over the radio, for reasons related to Code grounds.

Computer Access

42With respect to the allegation in his Application that Ms. Oza denied him access to a computer, the applicant testified that he was given an ID and a password by Ms. Gilbert and accessed a computer. He testified that one day when the site supervisor was not present, and he had to access the computer to get the parking memo for that day, he was refused by Ms. Oza. He testified that she told him that he should not go into the computer, and also that he should not do his occurrence reports on the computer. Since then, his reports were handwritten. He testified that other people in similar positions have access to and do reports on the computer. In cross-examination, he clarified that it was the security office computer, and not the dispatch computer at the front desk, that Ms. Oza denied him access to on a day that she was acting as site supervisor and in the security office.

43Ms. Oza was asked about denying the applicant access to her computer. She testified that she was instructed by Ms. Gilbert and the site supervisor that, during her shift, she was not to let any other guards use her computer, except when she was on a lunch break and another guard was relieving her. She testified that a few times when she was on duty and it was not lunch time, the applicant asked to use the computer for a few minutes and she suggested he could use the second computer in the supervisor’s office which was set up for security guards to write their daily “tour of duty” that they are supposed to record at the end of the day and submit. She testified that, in response, the applicant would get angry with her.

44Ms. Oza was not specifically asked if she denied the applicant access to the computer in the supervisor’s office. Rather, she was asked about denying the applicant access to her computer. In answering that question, Ms. Oza testified that there was a computer in the supervisor’s office for security guards, and she suggested to the applicant that he could use that computer. She also testified that she never understood why the applicant had to use her computer when there was an “alternate arrangement.”

45I have difficulty accepting the applicant’s evidence that Ms. Oza denied him access to the computer in the supervisor’s office. Although she was not specifically asked if she denied the applicant access to the computer in the supervisor’s office, it is clear from her evidence that she understood that the computer in the supervisor’s office was for the applicant’s use. The applicant also testified that he was given an ID and a password for computer access by Ms. Gilbert, that he accessed a computer, and that others continue to.

46In the circumstances, I have no reason to doubt Ms. Oza’s evidence that she denied the applicant access to her own computer; however, I do not find that Ms. Oza denied the applicant access to the computer in the supervisor’s office, which Ms. Oza clearly understood was for the use of security guards, including the applicant. In my view, even if Ms. Oza did deny the applicant access to the computer in the supervisor’s office, on a day that she was acting as site supervisor, there is insufficient information before me to find that such a denial was based on Code grounds.

October 2008 Incident

47The applicant testified that, in October 2008, he was on a routine patrol on Sheridan property when he received a call from the control desk, advising him that there was an incident he should respond to. He arrived at the scene and saw a female screaming for help. He approached her to verify what the problem was and she said she was having a panic attack. He radioed the control desk to contact EMS, and EMS arrived. He testified that Ms. Oza was also there, as was Sheridan media, and they approached him and asked him what the problem was. The applicant testified that he told them that the matter was under investigation and he had no statement to give. He wrote an occurrence report, as did the security officer at the control desk.

48The applicant testified that, the next day, he was called to meet with Ms. Gilbert, questioned, and accused of giving “false evidence” to the media. He testified that he asked Ms. Gilbert where she got the information from and she told him that Ms. Oza gave her the report that he gave a statement to the media. In cross-examination, the applicant confirmed, as alleged in his Application, that Ms. Gilbert accused him of speaking to the media and magnifying the incident to be a stabbing. He testified that somebody called and said that a person was stabbed, but, in fact, it was a panic attack.

49Ms. Gilbert explained that they had written emergency procedures and trained all guards, going over what everyone’s job was. She explained that an emergency could be called in by various methods, such as by radio or in person. Most people went to Ms. Oza, she would dispatch, and the parking supervisor would meet responders at the entrance and take them to where the emergency was reported.

50Ms. Gilbert was asked about calling the applicant regarding an emergency in October 2008. She testified that there was a call from the student centre manager saying that a person had been stabbed, and police and an ambulance were needed right away. Security was dispatched and Mr. DiFranco and another guard went to the scene which was maybe a hundred feet from the security office, and found the applicant there. The student was having a panic attack and was not stabbed. Police and an ambulance arrived and did not know where to go but eventually found their way to the student centre. Ms. Gilbert testified that she wanted to speak to the applicant about the fact that he did not wait for the police and ambulance to take them to the student centre, as, had the student been stabbed, it would have been of the utmost importance that they get to her as soon as they could. She testified that she reminded him that he had a role during emergencies and he had not done that role. She testified that the applicant was surprised because he felt that he did the right thing by responding to the scene.

51Ms. Oza was not specifically asked if she reported to Ms. Gilbert that the applicant gave a statement to the media, including false evidence, as alleged by the applicant; however, Ms. Gilbert was asked about the applicant’s claim that she accused him of speaking to the media. Ms. Gilbert testified that she did not recall that, but there was a standing order that guards were not to speak to the media and were to refer the media to her or a member of Sheridan staff. She was forthright in her evidence that she had no idea what would lead the applicant to make the allegation, and she was not even sure if a reporter was in attendance.

52On the other hand, Ms. Gilbert very clearly recalled the October 2008 incident and speaking to the applicant about the fact that he did not wait for the police and ambulance to take them to the student centre. By his own evidence, the applicant went directly to the scene, rather than wait for the police and ambulance. In the circumstances, I find that it is more in keeping with the preponderance of the probabilities that Ms. Gilbert met with the applicant after the October 2008 incident to speak to him about not waiting for the police and ambulance, and not about the applicant speaking to the media. In my view, had Ms. Oza reported to Ms. Gilbert that the applicant gave a statement to the media, Ms. Gilbert would have more likely than not recalled, particularly in light of the standing order that guards were not to speak to the media, and especially if she was told that the applicant gave a false statement to the media. As such, I do not find that the applicant has established on a balance of probabilities that Ms. Oza reported to Ms. Gilbert that the applicant gave a statement, including false information or otherwise, to the media.

December 7, 2008 Incident

53The applicant was asked about the allegation in his Application that he was erroneously accused of violating policy by providing free parking to an employee, who later verified that she had not even driven to work on the day he was accused of giving her free parking. He testified that, on December 7, 2008, a friend who worked in the IT department bought a car. The applicant testified that, as a staff member, she should be given a special pass. She approached him and he took her to Ms. Oza who issues staff passes on a payroll deduction basis. The applicant testified that after his friend left, Ms. Oza accused him of giving his friend free parking, but his friend never drove prior to buying a car and applying for a parking pass. He denied issuing his friend a free pass.

54Ms. Oza testified that she knew the person the applicant alleged he was erroneously accused of giving free parking to, and thought that she worked for the IT department, but she knew nothing else about this allegation. Ms. Oza testified that she learned that the applicant was accused of this from the Application. She testified that she “was not in the picture” and she was not the one who gave a parking pass to this person.

55It appears from Ms. Oza’s evidence that she did not understand that it was the applicant’s evidence that it was her who accused him of giving free parking to his friend. I note that, in the Application, the applicant does not state who accused him of giving free parking to his friend. In the circumstances, I do not find that the applicant has established on a balance of probabilities that Ms. Oza accused him of giving free parking to his friend. Ms. Oza clearly knew the person the applicant alleges he was accused of giving free parking to, and I have no reason to doubt Ms. Oza’s evidence that she did not give a parking pass to this person. I also have some difficulty with the applicant’s allegation in that he did not indicate to whom his friend “later verified” that she had not even driven to work on the day he was accused of giving her free parking and why this was necessary. Considering the evidence as a whole, including the evidence addressed below concerning the applicant’s understanding of free parking at Sheridan, even if Ms. Oza did erroneously accuse the applicant of giving free parking on one occasion, there is insufficient information before me to find that such an accusation is based on Code grounds.

Mid-December 2008 Incident

56The applicant was asked about the allegation in his Application that he gave a ticket to a vehicle that he later found out belonged to “Ms. Oza, an accounting teacher”, and that he was threatened by Ms. Oza to cancel the ticket or be removed from the site. He was asked who the vehicle belonged to. He testified that in mid-December 2008 he noticed a car belonging to a staff member parked without a validated pass. He “tagged” the vehicle. He testified that, the next day, the employee went to Ms. Oza, and he was threatened that he should revoke the ticket or else he would be removed from the site. The applicant testified that he did cancel the ticket because he was scared for his job. He testified that Ms. Gilbert has the authority to remove anybody, and several people who she asked be removed were removed without justification. He testified that he loved his job and would not do anything to be removed from the site.

57It appears that there is an error in the Application as Ms. Oza is clearly not an accounting teacher. In any event, Ms. Oza was asked to respond to the allegation that the applicant tagged her car and she told him to cancel the ticket or she would have him removed. She recalled that once her pass was not on display as it had fallen down and the applicant tagged her car. She testified that she observed the ticket on her car when she was leaving work. She clarified the situation with the guard at the booth, and he said that the applicant was off duty so he could take care of the ticket and that she did not have to worry. With respect to the allegation that she told the applicant to cancel the ticket or she would have him removed from the site, she testified that she was surprised because she dealt with that ticket with the guard at the booth and not the applicant. She also testified that, as a dispatcher, she did not give orders to the applicant.

58In cross-examination, the applicant was asked about his allegation that Ms. Oza threatened to have him removed from the site and whether, as a dispatcher, she had the authority to do so. He testified “yes and no,” and explained that it was “a matter of power”, or “who you rub shoulders with”.

59It appears that Ms. Oza did not understand that it was the applicant’s evidence that she threatened that he should revoke a ticket given to another employee, as opposed to her, or else he would be removed from the site. In any event, I have considerable difficulty with the applicant’s allegation. Ms. Oza testified that she was not involved with issuing parking tickets as she was not licensed to do so. Although she was asked about an allegation that she told the applicant to cancel a ticket given to her, or she would have him removed from the site, she testified that she did not give orders to the applicant. In the circumstances, I have difficulty accepting that Ms. Oza would assert that she could have the applicant removed from the site for not cancelling a validly issued parking ticket, and I do not find that she did. I also have considerable difficulty with the applicant’s bald assertion that several people that Ms. Gilbert asked be removed were removed without justification, and his apparent suggestion that Ms. Oza could, through Ms. Gilbert, have him removed without justification.

January 6, 2009 Incident

60The applicant alleges in his Application that, on January 6, 2009, he approached Ms. Oza and requested that she renew an individual’s parking pass, and was surprised when told the individual “was not, or no longer, privileged to a free parking pass.” The applicant alleges that he has reason to believe that he was “the only non-white employee being targeted and who was being denied free passes for authorized” employees. He also alleges that Ms. Oza regularly gave individuals of her own ethnic origin free parking passes.

61The applicant explained that, in September 2008, the parking lot became gated, and an access card was needed to access the lot. He testified that the site supervisor issued cards to the cafeteria and cleaning staff, and they were allowed to use the parking lot on a daily basis. Prior to that, they also had their parking passes on their rear view mirrors, issued by Ms. Gilbert. He explained that the cards were valid for one term. On January 6, 2009, a cafeteria staff person told him that her card was not working on the parking sensor to raise the gate. He then took the card to Ms. Oza and she said the card was expired. He asked her to program the card, and she did. She then said that cafeteria staff were not entitled to parking. He testified that he didn’t “know where she got that information from” but he took the card back to the cafeteria staff person and it was working fine. He testified that is where the problem started.

62The applicant testified that he believes Ms. Oza reported to Ms. Gilbert that he was giving free parking to cafeteria staff. He testified that they refused to ask him about parking and victimized him. He testified that the cafeteria staff person is still parking with a valid special pass, and that people are still receiving free parking. He testified that he knew the cafeteria staff person was entitled to a free pass because her car had a blue pass, which is a complimentary pass for cafeteria staff given by Ms. Gilbert, and also because she had a card given by the site supervisor.

63In cross-examination, the applicant first confirmed that he approached Ms. Oza to add time to a cafeteria staff person’s parking card. He was asked if he believed cafeteria staff were entitled to free parking and testified that “it was a precedent.” To his knowledge, there was no written policy in place. He confirmed that he did not have authority to add time to the person’s parking card himself and he asked Ms. Oza to do it. He confirmed that the cafeteria staff person could have gone to Ms. Oza herself but she complained to him. Then in his cross-examination, the applicant denied that he asked Ms. Oza to credit the cafeteria staff person’s card. He testified that if somebody made a complaint it was his job to look into the complaint, and he asked Ms. Oza to check and see why the card was not working. He testified that Ms. Oza did “what was her job duty to do”, and she took the card and credited it. He denied yelling at Ms. Oza, and denied that Ms. Oza told him it was against company policy.

64The applicant denied providing free parking to cafeteria staff before, but testified that it was a precedent, from Ms. Gilbert, to the site supervisor, down to him. When asked if he received free tea from cafeteria staff, he testified “yes and no,” explaining that sometimes he did not have change and asked them for a free coffee and it was given. In re-examination, he testified that he did not return favours for free coffee, nor did he allow anyone to breach company policy because he received free coffee.

65The applicant testified that he was not given a memo in 2008 instructing that free parking was not to be given out unless authorized. He denied that Ms. Gilbert talked to him about not giving free parking.

66Ms. Gilbert was asked if she ever spoke to the applicant about free parking. She testified that she talked to him about noting people were parked without parking passes, and asking him to tag them. She testified that she did not believe she had a conversation with him saying that she knew he was allowing free parking. Ms. Gilbert was asked if she knew if anyone had advised the applicant that the leniency with respect to passes was over. She testified that she advised the applicant when he returned to work after a medical absence, and she went over all the changes to the policies with him. She clarified that she did not remember the sequence of events, but she did recall a conversation with him about no free parking, concerning cafeteria staff and facilities management people, in about 2007.

67Mr. DiFranco was asked about the cafeteria staff and free parking, and testified that it became a big issue for him because he was given instructions to get parking under control. He testified that he had to enforce it, or give warnings, and it was always the applicant who gave free parking, making his job to get it under control difficult. He testified that it came up a few times and he told the applicant that it did not matter what happened in the past. He was asked if he spoke to the applicant about issuing free parking to cafeteria staff, and testified that he did, and that he said it has to stop. They gave some leeway at the beginning of the semester, but it could not continue.

68Ms. Oza was asked how she got along with the applicant, and testified that, personally, they had no problems, but, sometimes, they had work-related issues, because she would not compromise with her duties in terms of what she is supposed to do and not supposed to do. She explained that there were instances when the applicant would come to her with an access card to check on the system what was wrong and why it was not working, and he would request that it be updated. If the parking permit had expired, and that was the reason why the card was not working, she would request the receipt and the permit, which she needed to update the card. She testified that she could not just “blindly” update the access card. She testified that if she denied his request, he would get mad at her and say “do as I say; I know what I’m doing.”

69Ms. Oza testified that within the first two or three months of joining in May 2006, when she was new and had the impression she had to obey “the seniors,” she would do what the applicant was asking. When she came to know more about the job, she started refusing. Ms. Oza testified that she refused the applicant, on average, at least once or twice per month. In cross-examination, Ms. Oza confirmed that the applicant tried on many occasions to have her update passes against policy. She testified that she reported that to the site supervisor. She denied making false accusations.

70Ms. Oza was asked about the allegation that, on January 6, 2009, she refused to extend the pass of a cafeteria staff person. She testified that she remembered the conversation. She testified that the applicant asked that the card be updated, and studying the account and understanding it expired, she requested the updated parking pass and receipt to update the card. She testified that the applicant said that she has all this stuff and “you just update this.” She testified that she refused and told him to let the staff person come to her with the pass and the receipt and, within a second, she would update her card. She testified that the applicant was furious and left. In cross-examination, she testified that she had strict instructions that cafeteria staff were not entitled to free parking, and Ms. Gilbert never issued free parking to cafeteria staff.

71In an email, also referred to below, that Mr. DiFranco testified he wrote on January 9, 2009, he states that the applicant got upset and yelled at Ms. Oza, and upset her, “because she questioned him about the access card he brought up to the desk for her to re-program.” Mr. DiFranco testified that if anyone wanted an access card re-programmed, they would first have to pay for a permit. In cross-examination, he testified that he saw this happen. The applicant presented a white card, telling Ms. Oza to “do it.” Ms. Oza said the person had to come up with either a receipt or a permit, and the applicant got a little bit sensitive and hostile and walked away saying a few words.

72With respect to his allegation that Ms. Oza regularly gave individuals of her own ethnic origin free parking passes, the applicant was asked how he knew that. He testified that, many times, he was told by the kiosk guard that “their cars” were allowed to park free, and when he asked who authorized it, he was told Ms. Oza would call the kiosk guard.

73Ms. Oza was asked about the applicant’s allegation that she gave free parking to other employees. She testified that it was not possible because she had the authority to issue parking permits for only those who opted for payroll deduction. When asked if she could have updated someone’s card, she testified that she is very honest. She testified that eventually she was entrusted by Ms. Gilbert with permits to be issued to staff, and that each permit cost $300.00 to $350.00. Ms. Oza testified that both she and Ms. Gilbert recorded the numbers on the permits, and when she issued one she would write the person’s name and get their signature.

74It appears from the applicant’s evidence that he may have been under the misapprehension that cafeteria staff, and possibly others, were entitled to free parking. I do find the applicant’s evidence somewhat troubling, however, in that he both confirmed and denied that he asked Ms. Oza to credit a cafeteria staff person’s access card on January 6, 2009. He also denied providing free parking on at least two occasions in his evidence, but confirmed in a meeting with Mr. Fulford on January 13, 2009, set out below, that when he came to Sheridan, cafeteria staff were getting free passes and that he had “been continuing with it.” On more than one occasion he referred to a “precedent” for free parking for cafeteria staff.

75I also have difficulty with the applicant’s evidence that Ms. Oza did program the cafeteria staff person’s card on January 6, 2009. Ms. Oza’s evidence that she refused to update the card is consistent with Mr. DiFranco’s evidence that Ms. Oza did not, and I find that it is more probable than not that she did not update the cafeteria staff person’s card on January 6, 2009. I also note that such a finding is consistent with the applicant’s allegation that Ms. Oza denied him “free passes for authorized” employees. In any event, it is clear to me that when Ms. Oza denied the applicant “free passes”, including on January 6, 2009, she was simply following Sheridan’s policy, and that Ms. Oza denying the applicant “free passes” for employees had nothing to do with Code grounds.

76I also do not find that Ms. Oza gave individuals of her own ethnic origin free parking passes. The applicant’s evidence in this regard is hearsay and I have no reason to doubt Ms. Oza’s clear and forthright evidence that she did not give free parking to other employees.

77In conclusion, with respect to the allegations against Ms. Oza, I do not find that Ms. Oza subjected the applicant to harassment, and/or discrimination, including a poisoned work environment, contrary to the Code. While there may have been some problems with radio communications, I do not find that that this was related to Code grounds. While I do not find that Ms. Oza denied the applicant access to the computer in the supervisor’s office, even if she did on a day that she was acting as site supervisor, I do not find that any such denial was related to Code grounds. Similarly, while I do not find that Ms. Oza accused the applicant of giving free parking to his friend, even if she did erroneously accuse the applicant of giving free parking on one occasion, I do not find that any such accusation was based on Code grounds. With respect to the remaining allegations concerning Ms. Oza, I also do not find that any differential treatment or harassment based on Code grounds has been established.

78I also note that Mr. Fulford confirmed that Primary has an anti-harassment policy, with both formal and informal procedures. He testified that he was not aware of the applicant filing any harassment or discrimination complaint with Primary, prior to the present Application with the Tribunal.

Termination Of Employment

79The applicant testified that, on January 9, 2009, he was told that he should hand in his keys and access card, and that he was not allowed on the property. He was told that he should report to the head office of Primary to talk to Mr. Fulford.

80The applicant testified that he attended a videotaped meeting on January 13, 2009, prior to which he was not given anything in writing concerning allegations against him. He was first made aware of the allegations against him when he was at Primary’s office with Mr. Fulford and was apprised of the allegations. The applicant testified that, at no time prior, was he reprimanded. He testified that he was never given a performance appraisal, nor was he ever told he was doing things wrong, or disciplined.

81With respect to the allegation in his Application that, when he met with Mr. Fulford on January 13, 2009, he “was told that if he did not get out of Mr. Fulford’s office Mr. Fulford would ruin [his] reputation”, the applicant testified that it did not happen on that day. Rather, after he applied for work, then his reputation was damaged. He testified that Mr. Fulford “did that afterwards.” In cross-examination, he testified that his reputation was damaged “somewhere”, and that he could not remember what was said at the meeting. He confirmed that he was hurt because his employment was terminated for just cause and that is why he feels his reputation has been damaged. It is clear from the audiovisual recording of the meeting on January 13, 2009, that Mr. Fulford did not tell the applicant that if he did not get out of his office, he would ruin his reputation.

82Mr. Fulford testified that Mr. Lizotte initially brought to his attention that particular accusations had been made that the applicant was giving away free parking, that an investigation had been done by Mr. DiFranco, and that Ms. Gilbert sent an email requesting that the applicant be removed. A string of emails, copied to Mr. Fulford, was entered into evidence.

83In an initial undated email that Mr. DiFranco testified he wrote to Ms. Gilbert on January 9, 2009, he advised her that he found “a bundle of the ‘W’ Yellow passes” in the applicant’s locked drawer, and states that he does not know why he would have them. He states in the email that “it seems that there are some freebies that have been going on before my time and some now which I am trying to pin point.” Mr. Difranco states that he asked the applicant what the policy is for restaurant staff parking and the applicant said “its free” and that their supervisor pays for it. Mr. DiFranco also states in the email that he spoke to a guard who fills in and asked him if he was aware of any free parking. The guard mentioned that cafeteria staff were issued some sort of pass from the applicant, “white looking”, and they would display it on their dash. Mr. DiFranco states that he knows there is something that is worked out between the applicant and them, and has been for some time. He also mentions that the applicant got upset and yelled at Ms. Oza, upsetting her, because she questioned him about an access card that he brought to the desk for her to re-program.

84Mr. DiFranco testified that he found the passes in a locked drawer that was only accessed by the parking supervisor. With respect to his reference to “freebies” in his email, he testified that he was referring to free parking. In terms of who was giving “freebies”, he testified that the applicant’s name was coming up each and every time. With respect to his statement in the email that the applicant told him that restaurant staff parking was paid for by their supervisor, Mr. DiFranco testified that restaurant staff presumed their supervisor was paying for their parking, but he spoke to their supervisor and was told that it was never a policy of theirs.

85Mr. DiFranco testified that he continued his investigation and found some permits in a glove compartment, some in the office, and some permits made by the print shop. He collected them all and put them into an envelope. He spoke to Primary’s head office and turned over everything that came to his attention. In cross-examination, Mr. DiFranco testified that he found permits that were not valid, and that cafeteria staff were not cooperating with the new policies and procedures that were in place before, but now it was his job to make sure policies were being followed.

86Mr. DiFranco was asked if he knew whether or not the “’W’ tickets” he found were expired. He testified that, if they were expired, they should have been turned in and destroyed. Mr. DiFranco was asked if the applicant had expired “tickets” could he issue them to anyone. He testified that there were some that were expired and the dates were changed, or a stamp with “cafeteria staff” was put on them, and they do not do that. He testified that he saw altered permits hanging in vehicles, and he saw a few cars with white passes on their dash. He testified that, either way, whether signed by the applicant, or expired and saying “cafeteria staff”, they were not valid. Mr. DiFranco testified that he did not honour the passes that were expired or altered and made people pay, or they were issued tickets. He explained that he gave first, second, and third warnings and gave some tickets. Mr. DiFranco testified that when he wrote the email on January 9, 2009, he was still investigating, and that he did find more information, although he had enough. He explained that his email contained preliminary findings.

87In a responding email dated January 9, 2009, from Ms. Gilbert to Mr. DiFranco, Ms. Gilbert states that it sounds to her that the applicant “might have worked something out with the cafeteria staff to either overlook the fact they do not have parking, or he’s giving them unauthorized parking passes.” She also states that there is absolutely no reason for the applicant to have any parking passes for any reason and they should be removed form his possession immediately. She states that the applicant should not be “making” his own passes. She states that if staff are getting their passes directly from the applicant, then they are being issued in an unauthorized manner. She confirms that there are only two ways to get a parking permit: pay for one at the cash office, or arrange payroll deduction through Ms. Oza and payroll.

88With respect to the statement in her email that it sounds to her that the applicant might have worked something out with cafeteria staff, Ms. Gilbert testified in cross-examination that she did not have any evidence and that she was “supposing.” She confirmed that she was relying on “mere suspicion”. With respect to the parking passes that the applicant had access to, she testified that the parking officer who worked in the booth also had access, and it was very possible others had access.

89In the email, Ms. Gilbert continues to state that the applicant has no authority to decide who gets free parking and who does not. She states that if he is issuing cafeteria staff passes, knowing they have not paid for parking, then, essentially, he is colluding with them to commit fraud. She queries whether he is doing it for others. She states that it would be difficult for her to remove their parking permits and that all she can do is let them know that she knows, and, going forward, this will not happen again. She states that the applicant has put her in a very difficult position because his actions have impacted many people who are equally guilty in this affair. She states that the applicant has a history of “doing his own thing”, going behind the back of the site supervisors, and favouring select Sheridan employees. She states that she has no doubt that his influence is farther reaching than she knows, and the only way to stop this is to remove him from the site. She states that she has discussed this with Mr. DiFranco and Mr. Lizotte many times, and the applicant has been given the benefit of the doubt more times than she can count. She states, “Enough is enough”, and the applicant needs to be removed from Sheridan.

90Ms. Gilbert was asked what led to her January 9, 2009 email. She referred to the email from Mr. DiFranco to her wherein he stated that he found parking permits in the applicant’s possession, or area he had access to, for no particular reason. She testified that she thought he was giving passes to cafeteria and bookstore people, and if that was the case, that was the “last straw.” She asked Primary to remove him from Sheridan’s Brampton campus. She confirmed that she had no authority to terminate.

91In a subsequent email, also dated January 9, 2009, from Mr. Lizotte to Ms. Gilbert and Mr. DiFranco, and copied to Mr. Fulford, Mr. Lizotte confirms that the applicant has been removed from his schedule effective that day. Mr. Lizotte directs that the applicant be asked to contact Mr. Fulford to schedule a meeting for further follow up.

92Mr. DiFranco testified that after receiving the January 9, 2009 email from Ms. Gilbert, and after a discussion with her, they decided to remove the applicant from the schedule. He testified that a representative from Primary explained to the applicant that he was being relieved of his duties and to contact the office and turn in his keys. Mr. DiFranco testified that the applicant was told that he was being removed from the site, and they did not get into any details.

93Mr. Fulford testified that before a decision to terminate employment is made, investigations are always done, and the employee’s side is heard. He explained that employees are given an opportunity to explain themselves, and that the meetings are videotaped, with a camera in plain view. He also explained that there is a sign on his door indicating that the area is under audio and video surveillance.

94Mr. Fulford confirmed that Ms. Gilbert could decide to have a Primary employee removed from Sheridan’s campus, as it was written in their contract, and that Ms. Gilbert asked him to remove the applicant. He explained that this means the employee is “blocked” for the account, but their employment is not terminated, at that point. He confirmed that the applicant’s employment was not terminated on January 9, 2009. He testified that he contacted Mr. DiFranco and got a summary over the phone. The applicant was asked to come in on January 13, 2009 for a meeting to explain his side. Nothing was decided before the meeting, but the allegation that the applicant was giving out free parking concerned him. Also, parking tickets had not been submitted to Brampton; however, Mr. Fulford’s primary concern was free parking.

95Mr. Fulford testified that the purpose of the meeting on January 13, 2009 was more fact gathering. He wanted to make sure that he understood the evidence that he had been given so far, and determine what to do next. He testified that, at the meeting, he told the applicant what the allegations were, following the investigation conducted by Mr. DiFranco, and gave the applicant an opportunity to respond. He testified that the applicant admitted exchanging free parking with cafeteria staff for free beverages, and that, at that point, he was really left with no choice but to terminate his employment. He referred to “the appearance and actual act of impropriety.” Mr. Fulford testified that there were no other considerations in his decision to terminate the applicant’s employment.

96Mr. Fulford was asked if the applicant offered any explanation, and testified that the applicant said it was something that he had always done. He believed the applicant said that Ms. Gilbert was aware of this and that she had authorized it and it was done with her full knowledge.

97Mr. Fulford testified that the audiovisual recording of the meeting has not been edited in any way, and is a true recording of his meeting with the applicant on January 13, 2009. While the recording was played at the hearing, portions of the recording were difficult to hear. I subsequently re-viewed the recording.

98On the recording, Mr. Fulford can be seen typing on his computer keyboard and printing a document. A copy of a document on Primary letterhead, dated January 12, 2009 and addressed to the applicant from Mr. Fulford, was provided to the Tribunal. Mr. Fulford explained that the date is a typographical error, and that the document was printed and handed to the applicant at the meeting on January 13, 2009. The document states, in part, as follows:

On or about Friday, 9 January 2009 a large quantity of blank, used, expired and current parking passes were found in your possession at Sheridan College. These passes were located in a locked drawer to which you were the only person in control of this locked drawer. The passes were located after an investigation was begun into how certain individuals were obtaining parking passes with no record of those particular people having paid for the parking passes. The results of the investigation show that the unauthorized parking passes were coming from you, and the passes collected from your locked drawer support that conclusion. During our meeting, you admitted to issuing parking passes to the Cafeteria staff for free.

It continues to state that “[a]rranging for parking passes by circumventing College Procedures is gross misconduct”, and that “[g]ross misconduct… has resulted in your employment termination.” The document is signed by Mr. Fulford, as a “Witness”, below a statement, in part, that the applicant “has agreed and acknowledged the Gross Misconduct detailed in this letter.” The document is also signed by the applicant, as “Terminated Officer”. Both signatures are dated January 12, 2009.

99Mr. Fulford explained that the termination letter is based on a form letter that he tailors for the situation. He testified that he prepared the majority of the letter after the applicant said that he exchanged free parking for beverages in the cafeteria. He testified that he did not treat the applicant differently in the meeting as compared to other employees who are terminated.

100On the recording, Mr. Fulford can be heard advising the applicant that they found a very large number of parking passes in his locked drawer. When Mr. Fulford refers to “’W’ marked yellow passes” being found, the applicant states that they are expired. When Mr. Fulford advises the applicant that he was found giving passes to other contractors, like cafeteria staff, the applicant indicates that when he came to Sheridan, the cafeteria people were getting free passes, and that he had “been continuing with it.” When told that cafeteria staff were not supposed to be getting free passes, the applicant states that nobody told him about that. He also denies changing any dates on passes.

101On the recording, the applicant is also asked about people saying that they got passes from him. He states that the only people that could say that are the cafeteria staff. The applicant denies getting free food from the cafeteria in exchange for free parking, but states that he got free drinks from the cafeteria. Near the end of the recording, Mr. Fulford hands the applicant a document to sign, and advises the applicant that his employment is being terminated for violating policy. The applicant looks at the document briefly before signing it.

102Mr. Fulford was asked if, when Primary took over, employees were told not to accept beverages from the cafeteria under any circumstances. He testified that there is a “standard post order” not to accept gratuities. Mr. Fulford explained earlier that Primary’s standard orders were “company wide” and concerned matters such as conduct and uniforms. He also testified that he was sure that the applicant would have gone through Primary’s orientation at one point, and that he would have been told about the policy on the first day. He reiterated that the applicant’s employment was terminated because of his statement that he got free beverages in exchange for free parking.

103The Tribunal’s jurisdiction is to determine if the termination of the complainant’s employment was discriminatory pursuant to the Code, and not whether it was otherwise unfair. Having considered the evidence as a whole, in my view, the applicant has not established on a balance of probabilities that any of the Code grounds of race, colour, place of origin, ethnic origin, disability, and/or age that he relies upon were a factor in the termination of his employment. As indicated above, I do not find that Ms. Oza subjected the applicant to harassment and/or discrimination, contrary to the Code. Ms. Oza testified that the applicant tried, on many occasions, to have her update passes against policy, and she reported that to the site supervisor. The applicant alleges that Ms. Oza denied him free passes for employees, and he testified that it was her job to credit access cards, such as the access card of a cafeteria staff person on January 6, 2009. In my view, it was also not discriminatory for Ms. Oza to report to her supervisor that the applicant tried to have her update passes against policy. I note that it appears from the evidence that Ms. Oza reported to Mr. DiFranco, rather than Ms. Gilbert as alleged by the applicant, that the applicant tried to have her update passes against policy. In any event, the applicant has failed to establish that any Code grounds were a factor in Ms. Oza’s decision to report the applicant to her supervisor. I also find, for the reasons set out below, that the respondents, Primary and Mr. Fulford, have established a reasonable non-discriminatory explanation for the termination of the applicant’s employment.

104Based on the evidence of Mr. DiFranco, including, in particular, his evidence concerning his investigation of the applicant, and his email to Ms. Gilbert written on January 9, 2009, it appears that Mr. DiFranco believed that the applicant was giving out free parking, contrary to policy. He also testified that he was present when the applicant tried to have Ms. Oza re-program an access card on January 6, 2009, and Ms. Oza said the person had to come up with either a receipt or a permit. Similarly, based on the evidence of Ms. Gilbert, including her email of January 9, 2009, it appears that she also believed that the applicant was giving out free parking, contrary to policy. The applicant has failed to present evidence that establishes on a balance of probabilities that a Code ground was a factor in Mr. DiFranco or Ms. Gilbert’s beliefs that the applicant was contravening the parking policy.

105Mr. Fulford, who was ultimately responsible for terminating the applicant’s employment, was copied on the January 9, 2009 emails of Mr. DiFranco and Ms. Gilbert, and spoke to Mr. DiFranco about his investigation of the applicant. Mr. Fulford testified that when he met with the applicant on January 13, 2009, the allegation that the applicant was giving out free parking concerned him. He testified that when the applicant admitted, at the meeting, to exchanging free parking with cafeteria staff for free beverages, he was really left with no choice but to terminate his employment.

106Having reviewed the recording of the meeting between Mr. Fulford and the applicant, it is not entirely clear to me that the applicant admitted to getting free beverages from the cafeteria “in exchange” for free parking; however it would be a reasonable inference to draw from the applicant’s statements. The applicant clearly admits to continuing to give cafeteria staff free parking, and denies getting free food from the cafeteria in exchange for free parking, but states that he got free drinks from the cafeteria. Although the applicant does not appear to read his termination letter carefully, he signs it after being advised by Mr. Fulford that it says his employment is being terminated for violating policy. There is no evidence that the applicant has presented that indicates on a balance of probabilities that the applicant’s race, colour, place of origin, ethnic origin, disability, or age were a factor in the decision to terminate his employment. In my view, the respondents have established a reasonable non-discriminatory explanation for the termination of the applicant’s employment.

107The Tribunal also heard evidence relating to the respondents’ assertion that the applicant failed to submit a large number of parking ticket books to Brampton, which put Primary at risk; however, Mr. Fulford testified that, when he met with the applicant on January 13, 2009, his primary concern was “free parking”. He also testified that his decision to terminate the applicant’s employment was based on the applicant admitting that he exchanged free parking with cafeteria staff for free beverages, and there were no other considerations. Based on the evidence of Mr. Fulford, in my view, it is not necessary to review the evidence relating to ticket books.

108For all of the above reasons, the Application is dismissed.